Employers' Obligations to Workers in Military

NEW YORK STATE BAR ASSOCIATION JournalJournalNOVEMBER/DECEMBER 2001 | VOL. 73 | NO. 9

EMPLOYERS’EMPLOYERS’ OBLIGATIONSOBLIGATIONS TOTO WORKERSWORKERS ININ MILITARYMILITARY

Inside Dilemmas for Fiduciaries Testimony by Physicians Your Writing Style Appealable Issues Three-Year Index BOARD OF EDITORS C ONTENTS Howard F. Angione When Duty Calls: What Obligations Do Employers Have Editor-in-Chief Queens To Employees Who Are Called to Military Service? e-mail: [email protected] Eve I. Klein and Maria Cilenti 10 Rose Mary Bailly Albany Estates with Multiple Fiduciaries Pose Ethical and Willard H. DaSilva Practical Issues for Attorneys and Clients Alike Garden City John R. Morken and Gary B. Freidman Louis P. DiLorenzo 22 Syracuse Philip H. Dixon Need for a Testifying Physician to Rely on Albany Reports by a Non-Testifying Physician Poses Judith S. Kaye Evidentiary Problems New York City Marcy S. Friedman 28 John B. Nesbitt Lyons Appeals Can Deal With the “Stain” of Unpreserved Kenneth P. Nolan New York City Constitutional Issues if Criteria for Exception Eugene E. Peckham Are Met Binghamton Paul Golden 34 Sanford J. Schlesinger New York City Writing Clinic—So Just What Is Your Style? Richard N. Winfield Susan McCloskey 39 New York City Eugene C. Gerhart Editor Emeritus Binghamton

Daniel J. McMahon Managing Editor Albany e-mail: [email protected] Philip C. Weis Associate Editor Oceanside D EPARTMENTS EDITORIAL OFFICES One Elk Street President’s Message ______5 New Members Welcomed ______60 Albany, NY 12207 Index ______48 2000–2001 Officers ______63 (518) 463-3200 Classified Notices ______58 The Legal Writer ______64 FAX (518) 463-8844 Index to Advertisers ______58 by Gerald Lebovits ADVERTISING REPRESENTATIVE Language Tips ______59 Network Publications by Gertrude Block Sheri Fuller 10155 York Road, Suite 205 N HE OVER Crestridge Corporate Center O T C Hunt Valley, MD 21030 (410) 628-5760 The montage of photos on this month’s cover was assembled to reflect e-mail: [email protected] the transition from civilian to military service for members of reserve units who are being called to active duty in response to the actions of terrorists. ON THE WORLD WIDE WEB: Cover design by Lori Herzing. http://www.nysba.org

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 © 2001 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 $12. Periodical postage paid at Albany, NY with additional entry Endicott, NY. POSTMASTER: Send address changes to: One Elk Street, Albany, NY 12207. Journal | November/December 2001 3 s I write this message, I have tan, where relief services were being just reached the half-way RESIDENT S coordinated. Over the next week and Apoint in my term as the 104th P ’ a half, working in direct coordination President of our Association. The and cooperation with federal, state time has passed so quickly it is truly MESSAGE and local agencies, and with the in- hard to believe that there are more valuable assistance of representatives days behind me at the helm than in of The Association of the Bar of the front of me. One short year hardly City of New York and the Legal Aid seems long enough, and yet two Society, we provided emergency years would probably be too long to legal assistance to scores of victims’ hold this particular office. Like they families and referred countless oth- say about prunes, you can’t be sure ers to appropriate attorneys and whether one is enough or two are too agencies. We were also successful in many. I considered calling our presi- thwarting the efforts of a handful of dent-elect, Lorraine Power Tharp of attorneys who engaged in illegal so- Albany, and suggesting that I might licitation of family members. just “hold over” in office for a few It would be impossible to list all of months. I thought better of that idea, those volunteers who distinguished and rapidly reached the conclusion themselves in these difficult times, that I had better accept the fact that but three come to mind: David H. my term will end, as quietly as it Tennant of Rochester and Robert J. began, at the stroke of midnight on Saltzman of Brooklyn, chair and vice- June 1 next. chair, respectively, of the Special It has not been a particularly quiet Committee on Mass Disaster Re- six months. Tragedies and challenges sponse, who personally coordinated notwithstanding, it continues to be a STEVEN C. KRANE an immediate response to both disas- joy and a privilege to lead the New ters. We must also recognize Wallace York State Bar Association through “Mid-Term Letter” Leinheardt of Garden City, whose ac- these times. We have accomplished tivities as an officer of the Trusts and much during the first half of my term, and we are by no Estates Law Section led the way in establishing an ex- means done. And so, I thought I would take this oppor- pedited legal framework for dealing with the unprece- tunity to bring all of you up to date on where we have dented number of victims. He will be featured in an up- been and where we are going. Here are the highlights: coming ABA Journal article on the “lawyer heroes” Tragedy and Triumph In the interests of brevity, I responding to the September 11 attacks. will only update last month’s President’s Message, We have acquitted ourselves well in these efforts, and which described the Association’s response to the hor- acted in a manner consistent with the highest traditions ror of the September 11 attacks. Although the intensity of the legal profession. Our Association is now estab- of the pro bono and administrative work being done for lished as a key member of the state’s disaster response those affected by the terrorist acts has diminished, we network, and we can expect to be called upon in the fu- continue to help coordinate the relief effort and to be a ture to provide needed aid to victims of similar cata- facilitator of direct services to direct and indirect vic- strophic events in New York. We know that it is futile to tims. The magnitude of the task required the conjunc- hope that the current disaster will be the last one, for tive effort of a coalition of more than 50 state, local and there will always be another, natural or otherwise. All special-interest bar associations (as well as the ABA), we can do is be ready when it comes. and several thousand attorney-volunteers. The entire Policy and Direction Our governing body has been disaster relief effort reflects the professionalism, dedica- dealing with significant issues of importance to our pro- tion and selflessness of our members, as well as attor- fession, government and society. In June, the House of neys from all across the region. The September 11 disas- Delegates approved reports dealing with issues as var- ter showed the bar at its best and we should be proud of ied as artificial insemination and parental rights and the all that we have been able to accomplish together. procedures for appointment of acting supreme court Just as it seemed as if we could begin to return to at justices and judicial hearing officers. The House also ap- least a modest degree of normalcy, American Airlines proved a resolution backing the McCain-Feingold- Flight 587 crashed on November 12, for a brief time stir- Cochran bill that would have banned the use of “soft ring fears of yet another terrorist attack. Within 24 hours money” and “issue ads” that really advocate the elec- of the crash, members of our Mass Disaster Response Steven C. Krane can be reached at 1585 Broadway, New team and I were on site at the Javits Center in Manhat- York, N.Y. 10036

Journal | November/December 2001 5 PRESIDENT’S MESSAGE tice for all, those that deny their citizens access to their tion or defeat of particular candidates in federal elec- justice system—or fail to lift barriers to that system— tions. Unfortunately, procedural wrangling stalled ef- run the risk of losing their legitimacy. Without access, forts to pass meaningful campaign finance reform legis- the justice system becomes illusory, and an illusory sys- lation, and it is difficult to predict when congressional tem is no better than no system at all. A convocation on attention will again shift to this subject in the future. In Access to Justice, led by Deputy Chief Administrative November, the House approved a set of reforms to the Judge for Justice Initiatives Juanita Bing Newton, was procedures associated with the appointment of held in Albany on September 11 and 12. Our own Presi- guardians under Article 81 of the Mental Hygiene Law, dent’s Committee on Access to Justice, co-chaired by C. while voicing its strong opposition to the Office of Court Bruce Lawrence of Rochester and President-Elect Lor- Administration’s proposed rule that would require raine Power Tharp, held a retreat in Albany on October lawyers to send engagement letters to clients. 31 and November 1. These conferences produced con- crete recommendations and action plans for those seek- “Dispone Domui Tuae” Although not quite what Isa- ing to solve the endemic problem of providing mean- iah had in mind,1 we have embarked on several projects ingful criminal and civil legal services to all. intended to put our house in order. Responding to sug- More concretely, we have continued to be strong ad- gestions that our Sections were insufficiently integrated vocates for increased funding for criminal and civil legal into the overall operation and policy-making structure of services at both the federal and state levels, making our the Association, we convened in early June a conference opinions on funding issues known to Governor Pataki, of all Section leaders at the Bar Center in Albany. Among our state legislators, congressional leaders and the New other efforts, we encouraged the Sections to be more in- York State IOLA Board. We were successful in convinc- tegrated and play a more important role in Association ing the Legal Services Corporation board, in view of the affairs. Taking a broader look at the structure and opera- events of September 11 and the additional burdens tion of the Association is the Special Committee on As- those attacks presented for legal services providers, to sociation Governance. This committee, chaired by Den- extend the deadline previously set for those providers in nis R. Baldwin of Syracuse, is expected to report by April New York to reconfigure their organization and develop 2002 on a wide variety of issues, including the organiza- an integrated statewide delivery system. tion of the House of Delegates and Executive Commit- Well under way is the work of the Special Committee tee; communication among committees, Sections and the on Student Loan Assistance for the Public Interest, Association; development of future leaders; diversity chaired by Henry M. “Hank” Greenberg of Albany. I cre- and options for different governance structures. ated this committee to study problems created by the The Special Committee on Legislative Advocacy is substantial law school debt incurred by law students as likewise evaluating ways the Association can be more they enter practice as newly admitted attorneys, as well effective in influencing the activities of the Legislature. as how massive debt discourages law graduates from Although we already have a significant presence by accepting lower-paying public service or legal assis- virtue of our status as the voice of 67,000 lawyers in tance positions in the legal profession. The committee New York State, we can always improve our ability to plans to explore innovative initiatives that address these advocate for the profession, secure needed reforms in problems to arrive at loan forgiveness options to assist the law, and improve public trust and confidence in the law graduates—particularly those interested in the pub- legal system. The committee, under the direction of A. lic service sector—such as through the creation of pub- Vincent Buzard of Rochester, is considering initiatives lic authorities and the issuance of government bonds. such as a key contact program for NYSBA members to Our Own Backyard We continue to be vigilant in ad- work closely with their local legislators. vocating and advancing the interests of attorneys in We undertake these projects with a firm grasp of the New York State. For example, this past June, we called history and traditions of the Association, particularly as upon the Federal Trade Commission to exempt lawyers we enter our 125th Anniversary year. November 21, from the provisions of the Gramm-Leach-Bliley Act, 2001, marked the anniversary of the Association’s for- which requires providers of financial services to furnish mation in Albany and was marked by a special procla- clients with an annual disclosure statement regarding mation by Governor Pataki. A special committee headed their privacy policies. We told the FTC that lawyers are by John Hanna, Jr., of Albany is planning various events already subject to stricter disclosure provisions under to commemorate the anniversary year. We will also be the Code of Professional Responsibility than any com- creating an authoritative history of the Association’s mercial enterprise. The FTC recognized that our con- first 125 years in collaboration with the publishers of cerns warrant “serious and thoughtful consideration” American Heritage magazine. and promised to work with us to review these issues. Doing the Public Good Much has been done to pro- We are hopeful that through cooperation we will be able mote access to our system of justice. History teaches that to develop a workable solution to the problem. while societies may be based on the precept of equal jus- CONTINUED ON PAGE 7 6 Journal | November/December 2001 CONTINUED FROM PAGE 6 We have received the reports of the Commission on Multijurisdictional practice will be a focus of atten- Fiduciary Appointments and the Office of the Special In- tion in the coming months, particularly once the ABA spector General for Fiduciary Appointments, created by Commission on “MJP” issues its report. With that in the Office of Court Administration in early 2000. Antici- mind, we have formed our own Special Committee on pating that the NYSBA wanted to study and comment on Multijurisdictional Practice, which is being chaired by these reports, which made recommendations for sub- Klaus Eppler of New York City. This committee will stantial changes in the fiduciary appointment system in consider the issues connected with attorneys and law New York State, I have formed a Special Committee on firms practicing in multiple states and will prepare us to Fiduciary Appointments, which is being chaired by for- comment effectively on the ABA Commission’s report. mer President Joshua M. Pruzansky of Smithtown. As I discussed in my September President’s Message, The NYSBA was host for an October 15 symposium MDP remains an issue of concern to the bar. On July 23, on judicial election campaign practices. We were joined 2001, the presiding justices of the four departments of by Chief Judge Judith S. Kaye and Judge Albert M. the Appellate Division signed a joint order amending Rosenblatt of the Court of Appeals as we explored, with the Code of Professional Responsibility to include the several of the larger bar associations in the state, ways in first rules anywhere in the country governing and re- which we can promote civility in judicial campaigns. stricting multidisciplinary practice. The two rules, Part of the program consisted of a panel discussion which went into effect on November 1, 2001, are sub- moderated by Chief Administrative Judge Jonathan stantially the same as those approved by the House of Lippman, in which the parameters of judicial campaign Delegates in response to the April 2000 “MacCrate Re- oversight programs were discussed. A Special Commit- port,” and govern ancillary services by lawyers and the tee on Judicial Campaign Conduct, chaired by Michael creation of contractual relationships between lawyers Klein of Syracuse, has been formed and asked, among and non-lawyer professional services firms. We will be other things, to formulate a flexible model plan that offering New York’s new rules to the rest of the nation local bars around the state could consider and adapt for as proposed amendments to the Model Rules of Profes- use in their own areas and to consider the extent to sional Conduct at the ABA’s midyear meeting in which the NYSBA should play a role in this process. Philadelphia in February 2002. One of the lessons learned from the World Trade Cen- Looking Ahead The House of Delegates meeting in ter attacks is that we need a set of protocols to address January 2002 will be the site of debate concerning the problems associated with law practice disruptions. proposal of the Special Committee on Public Trust and From the solo practitioner who dies, to the small firm Confidence in the Legal System to lift the veil of secrecy whose storefront office is destroyed by fire, to the col- covering attorney disciplinary proceedings in New York lapse of 110-story office buildings, we need to have State, at least at the point at which formal charges have mechanisms and protocols in place to help these been filed. (Effie Gunderson, take note). Committee lawyers or their successors to ensure that the interests of Chair Ellen Lieberman of New York will lead the debate. present and former clients, among others, are preserved. As you know, I am personally a staunch supporter of In formation is a special committee that will address this initiative. With that in mind, I plan to spend the these critical issues. next several weeks meeting with as many local bars and Finally, we will be conducting summits this spring on House delegations as possible to discuss the issues sur- two critical issues affecting the legal profession and rounding open disciplinary proceedings, in the hope of New York lawyers in particular. One summit will exam- forging a consensus position acceptable to the House. ine whether lawyers are taking full advantage of tech- The January meeting will also be the location for a nological advances in their daily practices, and the ex- debate on a proposed definition of the practice of law, tent to which the Association can help its members drafted by the Committee on the Unlawful Practice of embrace and make the best use of what is available to Law under the chairmanship of Mark Solomon of them. Another will attempt to predict the future and as- Ithaca. Competition from outside the profession re- sess coming trends in society, with a view toward deter- mains a critical challenge for lawyers in the 21st century. mining what new services the legal profession should The public cannot effectively be protected against injury be prepared to perform for existing clients, or what new from those who would purport to render legal services or expanded groups of clients should be served. without being admitted to the bar, in the absence of a It’s Your Turn Please do not hesitate to let me know clear definition of what actually constitutes the practice what you think about any of our programs or initiatives, of law. This challenge was set forth by the ABA in July or to suggest projects or positions we should explore. I 2000, and has been the focus of nationwide attention. particularly welcome your e-mails at skrane@proskauer With no definition of the practice of law on the books in .com, but “snail mail” will work fine as well. New York at present, we have an opportunity to take a significant step toward meaningful enforcement. 1. Isaiah 38:1, for those keeping score at home.

Journal | November/December 2001 7 When Duty Calls: What Obligations Do Employers Have to Employees Who Are Called to Military Service?

BY EVE I. KLEIN AND MARIA CILENTI

ithin days after the terrorist attacks of Sep- USERRA tember 11, 2001, more than 10,000 reservists The USERRA, enacted in October 1994, was meant to Wwere called to active duty, and military offi- expand, codify and clarify the employment rights and cials advised that call-ups could exceed the 35,000 re- benefits available to veterans and employees under its servists Defense Secretary Donald Rumsfield initially predecessor, the Veterans Reemployment Rights Act requested.1 Indeed, two weeks later, the Pentagon au- (VRRA). Congress enacted the USERRA (and the thorized the mobilization of 42,000 additional re- VRRA) to provide prompt re-employment to those who servists.2 And in an effort to protect citizens of New engage in non-career service in the uniformed services York and to provide needed assistance in the clean-up of the United States. The purpose of the statute is to en- efforts at the World Trade Center, Governor George courage non-career service, minimize the disruption to Pataki mobilized approximately 6,000 members of the the lives of service personnel and the business of their New York State National Guard.3 employers, and prohibit discrimination against employees because of their service.5 The USERRA is liberally What does this mean for employers who employ re- 6 servists or other persons who enlist in the uniformed construed in favor of those who serve military duty. services? What accommodations must employers make Coverage In a coverage provision extremely broad for employees who are absent due to military service? by employment law standards, “employer” is defined to Generally speaking, an employer may not discriminate include any person or entity that (1) pays salary or against an employee with regard to hiring, retention, wages for work performed, (2) has control over em- promotion or provision of any benefit of employment ployment opportunities, (3) has been delegated the per- because the employee serves military duty. This prohi- formance of employment-related responsibilities, or bition against discrimination, coupled with the public (4) is a successor-in-interest to the employer and explic- 7 8 policy of encouraging membership in the reserves, has itly includes both federal and state governments. worked to create four fundamental and general principles to guide employers: EVE I. KLEIN is a partner at Duane, First: Depending on length of service and employee Morris & Heckscher, LLP in New qualifications, a returning service member is entitled to York, where she is a member of the be escalated to the position he would have attained but firm’s Employment Law and Labor for military service, or be re-employed in his original Relations Practice Group. She is a position or one of like seniority, status and pay. graduate of Cornell University’s School of Industrial and Labor Rela- Second: For a period not to exceed one year, returning tions and received her J.D. degree service personnel may not be terminated except for from Cornell Law School. cause.

Third: Service personnel are entitled to continue to ac- MARIA CILENTI is an associate at crue certain benefits during military leave. Duane, Morris & Heckscher, LLP in Fourth: Upon re-employment, employees are entitled New York. A graduate of the State to the seniority, rights and benefits they would have at- University of New York at Albany, she tained had employment not been interrupted due to received her J.D. degree from George- military service, free of discrimination. town University Law Center. The rights of employees in the uniformed services and the concomitant obligations of employers are gov- erned by both federal law and state law.4

10 Journal | November/December 2001 The class of persons covered under the USERRA is also exceedingly broad and includes anyone “who is a The Escalator Principle member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to What standard should determine whether an 9 perform service” “on a voluntary or involuntary basis employer is obliged to escalate a returning service in a uniformed service under competent authority.”10 member to a position the individual “would Virtually all facets of military service are covered, in- have” attained but for military service? cluding active duty, active duty for training, initial ac- Many courts have found the appropriate stan- tive duty for training, inactive duty training, full-time dard to be “reasonable certainty.”1 In some cases, National Guard duty, and absences for fitness examina- such as an apprentice in training for journeyman 11 tions. The term “uniformed service” covers the United status, it may be clear that the employee would States Armed Forces, the Army National Guard, the Air have been promoted, with the benefit of the addi- National Guard, the commissioned corps of the Public tional training and experience that would have Health Service, and any other category of persons des- been available. In other cases, it may be more dif- 12 ignated by the President during war or emergency. Ex- ficult to establish that something “would have” cluded from the definition of “uniformed services” is happened, particularly when promotions are left service in a state militia or other active duty in the ser- to the employer’s discretion. Such uncertainty vice of the state. New York State service is covered by should not vitiate an employee’s claim, however. the New York Military Law, discussed below. In Fink v. City of New York,2 an employee of the Re-employment Rights An employee who is called New York City Fire Department was denied the for military duty is entitled to re-employment if (1) the opportunity to take a make-up promotional ex- employee has given advance written or verbal notice to amination upon his return from service, an exam- the employer, unless circumstances make it unreason- ination he likely would have passed, resulting in able to do so;13 (2) the cumulative length of absence the loss of a promotion he likely would have re- from employment with that employer, including prior ceived. Fink sued under the USERRA, succeeded service absences, does not exceed five years, with cer- on all claims before a jury, and successfully de- tain notable exceptions, including service in a time of fended a motion for a judgment notwithstanding 14 war or national emergency; and (3) the employee the verdict or for a new trial.3 promptly reports to work or submits an application for re-employment within 14 or 90 days after completion of 1. See, e.g., Chernoff v. Pandick Press, Inc., 419 F. Supp. service, depending on the length of service.15 An em- 1192, 1198 (S.D.N.Y. 1976); Lang v. Great Falls School ployee must also submit documentation (upon the em- Dist., 842 F.2d 1046, 1048 (9th Cir. 1988); Tilton v. Missouri Pacific Railroad Co., 376 U.S. 169, 180 (1964). ployer’s request and where it is readily available) to es- 2. 129 F. Supp. 2d 511, 518 (E.D.N.Y. 2001). tablish that the application is timely, that the service 3. In fact, while the court in Fink found that the very- limitations have not been exceeded, and that the em- qualified plaintiff would have achieved his desired ployee’s separation from military service was not dis- promotion with “reasonable certainty,” the court honorable.16 questioned whether “reasonable certainty” even Because the statute does not further define what it need be shown where a facially neutral policy of offering a promotional examination on one day only means to submit an application for re-employment, clearly has a disparate impact on employees serving courts take a case-by-case approach, focusing on the in- military duty on that day. Id. at 523. tent and reasonable expectations of both the employee 17 and employer, in light of existing circumstances. If an able expectation that such employment will continue in- employee fails to report or apply for re-employment definitely or for a significant period;20 or (4) the em- within the appropriate time frame, he shall not auto- ployer had legally sufficient cause to terminate the em- matically forfeit his right to re-employment. Instead, ployee at the time he/she left for service.21 Under all such person is subject to the employer’s policies and four circumstances, the employer has the burden of 18 procedures with respect to absences from work. proving that the exceptions apply.22 The requirements of re-employment are not absolute, Re-employment Positions If an employee’s military however. An employer is not required to re-employ a leave is less than 91 days, the employee must be rein- person if (1) the employer’s circumstances have so stated in the position that would have been attained if changed that they make re-employment unreasonable; employment had not been interrupted (the “escalator (2) re-employment would impose undue hardship on principle,” see box on this page), provided the employee the employer;19 (3) the position the employee leaves is is qualified to perform the duties of the position23 or be- for a brief, non-recurrent period and there is no reason- comes so qualified after reasonable efforts by the em-

Journal | November/December 2001 11 ployer to qualify the individual.24 Following unsuccess- service members absent due to military service.33 The ful efforts to qualify the employee, the employer may re- health plan may not require the employee to pay more instate the employee to the original position. The same than her/his normal share for that coverage if the pe- rules apply to an employee whose military leave is more riod of military service does not exceed 31 days. Beyond than 90 days, except if the employee cannot be qualified 31 days, the employee may be required to pay up to for the escalated position, the employer has the option 102% of the full premiums under the plan, comparable of either reinstating her/him to the original position or to the continuation coverage provisions under placing the individual in a position of “like seniority, COBRA.34 Coverage terminates under the USERRA (but status and pay.”25 If, for any reason, an employee is not not necessarily under COBRA) if the service member (and cannot be) qualified to perform in the escalated, does not timely apply for re-employment. original or comparable position, the individual shall re- The USERRA also makes explicit the rights of re-em- ceive any other position he/she is qualified to perform, ployed service members under their pension plans.35 and which is the “nearest approximation” to the esca- Specifically, no break in employment can be considered lated position (or, if that is not possible, to the former to occur because of an employee’s military service, no 26 position), with full seniority. forfeiture of benefits already accrued by a service mem- The USERRA provides additional protections for em- ber is allowed and service members need not re-qualify ployees who become disabled or whose prior disability for participation in the pension plan by reason of ab- is aggravated while serving military duty. If a returning sence for military service. service member’s disability makes the person unquali- An employer must make any contributions on behalf fied to perform in an escalated position (after reasonable of a re-employed service member that it would have efforts to accommodate by the employer), then the em- made if he was not absent for military service.36 In the ployee may be reinstated in “any other position which is case of a defined contribution plan where accrued em- equivalent in seniority, status and pay” the duties of ployer-contributed benefits are contingent on employee which he is qualified or would be qualified to perform contributions, those employee contributions must still with reasonable efforts by the employer. If the person is be made. However, a returning employee is entitled to not so qualified, the employer must reinstate the em- make the contributions after returning from service, at ployee in a position which is the “nearest approxima- any time beginning with the date of re-employment, up tion” in terms of “seniority, status and pay consistent until three times the period of the employee’s military 27 with [the] circumstances of [that] person’s case.” As service, not to exceed five years.37 Employers must such, the USERRA provides a disabled service member make matching contributions only as the employee con- with greater reinstatement rights than those provided tributes. For the purposes of calculating either the em- 28 under the Americans With Disabilities Act. ployer or employee liability to the plan, the employee’s Cumulatively, these provisions are meant to virtually compensation must be computed at the rate the em- guarantee that a returning service member—including ployee would have received but for military service or, one who becomes disabled during service—will receive if that rate was not reasonably certain, on the basis of the a position with the original employer if the person so employee’s average rate of compensation during the 12- chooses, unless reinstatement is impossible, unreason- month period immediately prior to service.38 able or imposes an undue hardship. Pay During Service The USERRA does not require Rights, Benefits and Obligations While away on the employer to pay a service member while on leave, military leave, an employee must be treated as on a fur- unless the employer does so for non-military leaves. lough or leave of absence and is entitled to accrue the However, the employee is entitled, but not required, to same rights and “benefits of employment”29 as employ- use any accrued leave benefits.39 ees of similar seniority, status and pay who are on non- Adverse Employment Actions The USERRA pro- military furloughs or leaves of absence.30 Upon rein- hibits an employer from taking any adverse employ- statement, such employee is entitled to the seniority, ment action against an employee because of military rights and benefits associated with the position held at service. An employer is considered to have violated the the time employment was interrupted, plus the addi- USERRA’s anti-discrimination clause if the employee’s tional seniority, rights and benefits that would have military obligations are a “motivating factor” in the al- been attained if employment had not been interrupted.31 leged discriminatory act, unless the employer can prove The employee may be required to pay the costs, if any, that the action would have been taken in the absence of of any employee-funded benefit continued pursuant to the employee’s military obligations.40 (See box on page this provision. 32 14). The USERRA’s “motivating factor” test is similar The USERRA requires employers to offer continua- but slightly more beneficial to employers than application of health insurance coverage for up to 18 months to CONTINUED ON PAGE 13

12 Journal | November/December 2001 “Sole” Factor and “Motivating” Factor Compared Historically, the USERRA’s predecessor, VRRA, “mixed motive” cases (in which the employer de- was interpreted by the Supreme Court to prohibit fends on the ground that, even if an invalid reason only those acts of discrimination that were moti- played a part in the adverse action, the same action vated solely by an employee’s reserve status.1 In en- would have been taken in the absence of the invalid acting the USERRA, Congress significantly broad- reason).3 If the employer meets this hurdle, no liabil- ened the protection afforded those in military ity may be found. service by including a “motivating factor” standard. Although the USERRA’s change from a “sole fac- Reservists now enjoy similar protections against dis- tor” to a “motivating factor” standard favors em- crimination as afforded to other statutorily protected ployees, as it turns out, the “motivating factor” stan- classes. dard is beneficial from the employer’s perspective in Because the new USERRA language mirrors the comparison to its application in the defense of dis- standard long employed by the National Labor Re- crimination claims brought under Title VII of the lations Board (NLRB), most courts, including the 1964 Civil Rights Act. This is because in the “mixed Second Circuit, apply the NLRB’s two-step burden- motive” context, the 1991 amendments to Title VII shifting approach: (1) the employee bears the initial partially overrode existing case law to provide that burden of showing by a preponderance of the evi- once the employee establishes that a protected char- dence that his military service was “a substantial or acteristic played any part in the employer’s decision- motivating factor” in the adverse employment ac- making process, the employee is entitled to injunction, and (2) if the employee satisfies this require- tive relief and attorneys’ fees, even if the employer ment, the burden shifts to the employer to affirma- meets its affirmative burden of establishing that it tively establish, by a preponderance of the evidence, would have taken the same action in the absence of that it would have taken the adverse action anyway, the invalid reason.4 By contrast, under the USERRA, for a valid reason.2 This approach applies to both the employer bears no liability once it establishes “pretext” cases (in which the employer defends on that it would have taken the same action irrespective the ground that it acted only for a valid reason) and of the discriminatory consideration.

1. See Monroe v. Standard Oil Co., 452 U.S. 549, 559 (1981). 2. NLRB v. Transportation Mgmt. Corp., 462 U.S. 393, 394-95 (1983); Gummo v. Village of Depew, 75 F.3d 98, 106 (2d Cir. 1996), aff’d on remand, 159 F.3d 770 (2d Cir. 1998); Hill v. Michelin North America, Inc., 252 F.3d 307, 311-12 (4th Cir. 2001); Sheehan v. Department of the Navy, 240 F.3d 1009, 1013 (Fed. Cir. 2001). While some courts have nonetheless applied the McDonnell Douglas approach when analyzing discrimination claims under the USERRA, the Fink court concluded that the two frameworks are not particularly divergent since both require some showing that an adverse employment decision took place under circumstances giving rise to an inference of discrimination. Fink v. City of New York, 129 F. Supp. 2d 511, 519. 3. Sheehan, 240 F.3d at 1014. 4. See 42 U.S.C. §§ 2000e-2(m), 2000e-5(g)(2)(B), partially overruling Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

CONTINUED FROM PAGE 12 Any termination within the above time frames must tion of the “motivating factor” standard under other be reasonable under the circumstances and not under- employment law statutes. (See box on page 17). taken as a means of avoiding the statutory protections. Termination Following Re-employment One very Courts also consider whether the employee had fair no- important distinction between the USERRA and other tice, express or fairly implied, that such conduct would employment discrimination statutes is that the USERRA be grounds for discharge.42 These considerations com- provides a person who is re-employed after a long-term port with the traditional concepts of “just cause” long military leave with short-term protection against dis- employed by labor arbitrators. charge except “for cause,” thereby giving an otherwise No Retaliation Provision The USERRA further pro- “at-will” employee the equivalent of contractual protec- hibits an employer from taking any adverse employ- tion against termination. This protection remains in ef- ment action against an employee because the individual fect for (1) one year after the date of re-employment, if has taken an action to enforce a protection afforded military service was more than 180 days, and (2) 180 under the USERRA.43 The “motivating factor” standard days after the date of re-employment, if military service also applies to the USERRA’s no retaliation provision. 41 was more than 30 days but less than 181 days. CONTINUED ON PAGE 14

Journal | November/December 2001 13 CONTINUED FROM PAGE 13 Enforcement and Remedies Are- “Motivating” Factor: turning service member who believes Cases to Consider that his employer has violated the USERRA may submit a written com- What might a court look for in determining whether the em- plaint to the Secretary of Labor, who ployee’s military obligations were a motivating factor in an ad- “shall investigate such complaint.”44 The verse employment decision? As in other employment law con- secretary may require by subpoena the texts, the “factual question of discriminatory motivation or intent attendance and testimony of witnesses may be proven by either direct or circumstantial evidence” and and production of documents relating to “may be reasonably inferred from a variety of factors, including any matter under investigation.45 If the proximity in time between the employee’s military activity and secretary determines that a violation has the adverse employment action, inconsistencies between the prof- occurred, the secretary will first attempt fered reason and other actions of the employer, an employer’s ex- to reach a voluntary resolution with the pressed hostility towards members protected by the statute to- employer so that the USERRA require- gether with knowledge of the employee’s military activity, and ments are met. If no resolution occurs, disparate treatment of certain employees compared to other em- the secretary must notify the com- ployees with similar work records or offenses.”1 plainant of the right to proceed against Cases for employers to keep in mind include: the employer. If requested by the com- • Gummo v. Village of Depew2 The Second Circuit reversed sum- plainant, the secretary must refer the mary judgment and determined that a jury could infer anti- case to the attorney general for evalua- reservist animus based on the employee’s supervisor’s tion and, if so decided by the attorney (1) outward antipathy toward the statutory benefits af- general, enforcement proceedings.46 forded reservists, (2) hostile treatment of the Department of The statute does not mandate, how- Labor investigator in another matter, (3) testimony that he ever, that the service member proceed could not afford more than one or two reservists on staff, through either the Secretary of Labor or and (4) complaints to local officials regarding the special the attorney general as a jurisdictional treatment afforded reservists. prerequisite. Rather, a service member • Hill v. Michelin North America, Inc.3 The Fourth Circuit like- may file a complaint against the em- wise reversed summary judgment in favor of the employer ployer directly.47 based on the plaintiff’s contention that his supervisor Remedies under the USERRA include looked “distraught” when plaintiff informed him about his equitable and injunctive relief; make- reserve obligations and expressed concern about a certain compensation; liquidated damages in an unit’s ability to accommodate plaintiff’s reserve schedule. amount equal to the make-whole com- • Robinson v. Morris Moore Chevrolet-Buick, Inc.4 The court held pensation for “willful” violations (i.e., re- that the employee had met his initial burden of proof where quiring a showing that the employer (1) there were no complaints about the employee’s perfor- knew or showed reckless disregard for mance prior to his request for military leave, (2) his supervi- whether its conduct was prohibited by sor was clearly angered by the employee’s request for leave, USERRA); and attorneys’ fees, expert and (3) there was close proximity in time between the em- 48 witness fees and costs. ployee’s request for leave and adverse employment action.5 State Law In light of these cases, employers should be sure that their su- In addition to the USERRA, the Mili- pervisors are well informed regarding the USERRA’s require- tary Law provides similar—and some- ments. times more generous—protections for 1. Sheehan v. Department of the Navy, 240 F.3d 1009, 1014 (Fed. Cir. 2001). employees who leave their positions to aff’d on remand perform military service. The USERRA 2. 75 F.3d 98 (2d Cir. 1996), , 159 F.3d 770 (2d Cir. 1998). does not supersede any state law, policy, 3. 252 F.3d 307 (4th Cir. 2001). practice, plan, contract or agreement that 4. 974 F. Supp. 571 (E.D. Tex. 1997). provides for rights or benefits more ben- 5. As in other employment law contexts, a single derogatory statement or “stray remark” by a supervisor may not be enough to meet the eficial to employees performing military “motivating factor” standard. See Luecht v. Department of the Navy, service, and acts to preempt all more re- 2000 U.S. App. LEXIS 27917 at * 11-12 (Fed. Cir. Nov. 7, 2000) (supervi- strictive provisions.49 Employers should sor’s comment that although employee was a disabled veteran he did be sure to apply whatever law or prac- not have to “babysit” him was not sufficient to meet the “motivating factor” standard). tice is more beneficial to the employee.50

14 Journal | November/December 2001 As a practical matter, the vast majority of employees vide reservists serving short-term military duty or at- will be covered by the USERRA, which addresses in de- tending short-term training with paid leave and bene- tail most issues facing returning service members. In fits.60 The perplexing interplay between sections 242 certain circumstances, however, referral to state law will and 243 can only properly be resolved by legislative be required, such as when the employee is called up by amendment, which seems particularly important in the governor for state military duty,51 in the case of pub- light of the high number of state call-ups not covered by lic sector employees entitled to greater protections (e.g., the USERRA. paid leave), and in all other instances where the state Military Law § 242 provides public employees rights law affords additional protections. over and above those provided by the USERRA. Most Private Sector Employees A portion of the Military significantly, public employees on short-term reserve Law, known as the Soldiers’ and Sailors’ Civil Relief Act duty are entitled to continuation of their salary or other (SSCRA), affords employment protection to private sec- compensation for up to the greater of a total of 30 days tor employees who perform “military service” in the or 22 working days in any one calendar year and not ex- armed forces of the United States, the New York State ceeding the greater of 30 days or 22 working days, in militia or other active state duty.52 In most cases, the one continuous period of such absence.61 Military Law § SSCRA provides the same re-employment and restora- 242 also explicitly mandates that time absent for mili- tive rights as the USERRA, but in several instances the tary service shall not constitute an interruption of con- SSCRA’s benefits are superior to the USERRA’s. The tinuous employment, nor shall the employee be subject, most distinguishable additional benefit is a one-year directly or indirectly, to any loss or diminution of time prohibition against discharge, except for cause, notwith- service, increment, vacation or holiday privileges, or standing the length of service leave.53 In addition, there any other right or privilege, regardless of how service is no maximum period of leave, and employees have a interruptions are treated for other causes.62 full 90 days after completion of service to reapply for Like private sector employees under the SSCRA, employment, regardless of service length.54 However, public sector employees are entitled to prompt rein- while the USERRA requires that a returning service statement if they seek re-employment within 90 days member be reinstated to an escalated position or to his after the termination of military service (irrespective of original position, the SSCRA only requires reinstate- length of service). Returning public employees can also ment to a position of like status, seniority and pay, apply for restoration after 90 days. However, in that cir- thereby subjecting it to preemption when the escalated cumstance, reinstatement may take place at any time provision is a more favorable one.55 within one year after the termination of military service, 63 The SSCRA may be enforced in state court by an ag- in the discretion of the appointing authority. grieved employee directly through his own counsel or Upon restoration, a public employee is entitled to the by the state attorney general. In either case, the court is rate of compensation the employee would have re- required to “order a speedy hearing” and to “advance it ceived had he remained in his position continuously. on the calendar.” The court may remedy any violation of The employee shall be deemed to have rendered “satis- the statute by injunctive relief and an award of back pay factory service” during an absence and shall not be sub- and lost benefits. The court shall not assess any court jected to any loss of time service, increment or other fees or costs against a person applying for military ben- right or privilege, or be prejudiced in any way with re- efits.56 spect to promotion, transfer, reinstatement or continu- 64 Public Sector Employees New York Military Law §§ ance in office. If a public employee, by reason of in- 242 and 243 afford employment protections to public of- juries sustained while on military duty, is incapable of ficers and employees absent on military duty in the ser- efficiently performing the duties of the position, the em- vice of New York State or the United States.57 Although ployee may be transferred to any vacant position in the legislative history explains that section 242 applies “to same jurisdictional classification and in the same gov- public officers and employees performing reserve duty ernmental unit, provided the individual applies in writ- 65 as members of the organized militia [of New York State] ing for such position and is found qualified. or of reserve forces or reserve components of the armed Finally, Military Law §§ 242 and 243 set forth special force of the United States,” while section 243 “pertains rules to protect public employees against the loss of to those absent on full-time active duty,”58 in practice, pension benefits.66 Time spent on military duty will not the two provisions—which sometimes conflict—are constitute an interruption in service for pension pur- read in tandem. This creates a somewhat convoluted set poses. For public employees receiving compensation of overlapping protections difficult to navigate.59 De- while on leave, required employee contributions to any spite this confusion, a practice appears to have devel- pension or retirement system shall be deducted from oped whereby section 242 is primarily applied to pro- CONTINUED ON PAGE 16

Journal | November/December 2001 15 weeks at a time. As of October 31, however, the Pataki administration said it would put more than 400 Guard Protection Against troops on active duty for 90 days—”the longest call-up in decades”—to help patrol train stations, airports, bridges Forfeiture of Insurance and tunnels. Paul Zielbauer, States Assign More Troops Employers and insurance companies should After U.S. Terror Warning, N.Y. Times, Oct. 31, 2001, at B11. 4. See the Uniformed Services Employment and Reemploy- keep in mind that persons serving in the orga- ment Rights Act of 1994 (USERRA), 38 U.S.C. 4301 et seq. nized militia of the state are entitled to continue and N.Y. Military Law §§ 242-244, 317-318 (hereinafter their health insurance policies for the first 60 days “Mil. Law”). of military service, irrespective of their payment of 5. 38 U.S.C. § 4301. premiums.1 Persons called to active duty in a re- 6. McGuire v. UPS, 152 F.3d 673, 675 (7th Cir. 1998). 7. Presumably in anticipation of an Eleventh Amendment serve component of the armed forces of the United challenge eventually reaching the Supreme Court (see, States, including the National Guard, are entitled e.g., Velasquez v. Frapwell, 160 F.3d 389, 394 (7th Cir. 1998), to have their life insurance policies remain in force vacated, 165 F.3d 593 (7th Cir. 1999)), Congress amended while performing such military service and for a the USERRA in 1998 to provide that private suits against state employers “may be brought in a State court of com- period of one year thereafter, notwithstanding petent jurisdiction in accordance with the laws of the 2 their non-payment of premiums. State.” 38 U.S.C. § 4323(b)(2). However, federal courts will have jurisdiction over claims against a state where 1. Mil. Law § 316(3). the suit is brought by the attorney general or by an individual seeking only injunctive relief. 2. Mil. Law § 316(1). 8. 38 U.S.C. § 4303(4). In addition, if an employer controls an entity incorporated or organized in a foreign country, CONTINUED FROM PAGE 15 it shall be liable for USERRA violations, unless compli- such compensation. For any period of military leave ance would violate the laws of that foreign country. 38 where a public employee is not in pay status, the em- U.S.C. § 4319. ployee has the option to remit contributions while on 9. 38 U.S.C. § 4311(a). 67 10. 38 U.S.C. § 4303(13). military duty or “within five years” thereafter. To the 11. Id. extent that the employee makes pension contributions, 12. 38 U.S.C. § 4303(16). absence while on military duty shall be counted in de- 13. If an employee mistakenly terms this notice a “resigna- termining the length of total service for the pension or tion,” it will not be construed as a waiver of his re-em- retirement system.68 While engaged in the performance ployment rights. See Sykes v. Columbus & Greenville Ry., 117 F.3d 287, 296-97 (5th Cir. 1997). of military duty, the public employee or designated ben- 14. 38 U.S.C. § 4312(a)(2). eficiary, as the case may be, is entitled to all benefits of 15. 38 U.S.C. § 4312(e)(C), (D). If the period of service was the pension and retirement system, except accidental less than 31 days, an employee must report to the em- disability and death benefits. (See box on this page). ployer not later than the first full calendar day following the completion of service plus eight hours for safe travel, The Military Law also provides for a variety of other unless unreasonable. For service between 31 and 181 protections unique to public service. For example, it days, re-employment applications must be submitted provides for make-ups of missed promotional exams, within 14 days of completion. For service over 180 days, extension of application periods for promotional exams, re-employment applications must be submitted not later than 90 days after completion. Id. Persons hospitalized or the creation of special eligible lists for promotions, cred- incapacitated due to illness or injury sustained during iting of military leave time as satisfactory service during military service shall report to their employer or submit a probationary period, and the creation of military re- an application for re-employment “at the end of the pe- employment lists.69 riod that is necessary for the person to recover from such illness or injury, . . . such period of recovery not to exceed Conclusion two years.” 38 U.S.C. § 4312(e)(2)(A). Given the number of reservists called up and the like- 16. 38 U.S.C. § 4312(f). 17. McGuire v. UPS, 152 F.3d 673, 676 (7th Cir. 1998) (finding lihood that more reservists will be called to active duty, it that returning employee had not applied for re-employ- is important that employers understand their legal oblig- ment where he failed to contact human resources depart- ations under the federal and state military leave laws. ment as requested by his supervisor). 18. 38 U.S.C. § 4312(e)(3). 1. John H. Cushman, Jr., Military on the Move as Bush Talks 19. The definition of “undue hardship”—encompasses “ac- With Putin, N.Y. Times, Sept. 23, 2001, at B3 tions requiring significant difficulty or expense” when 2. David E. Sanger & Steven Lee Myers, President Says U.S. considered in light of (a) the nature and cost required, is “in Hot Pursuit” of Terror Group, N.Y. Times, Sept. 29, (b) the overall financial resources of the facility involved, 2001, at A1. (c) the overall financial resources of the employer, and 3. Statements of representatives of the N.Y.S. Division of (d) the type of operations of the employer. 38 U.S.C. Military and Naval Affairs, October 2001. For the first six § 4303(15); see Americans with Disabilities Act, 42 U.S.C. weeks after the attack, the National Guard members § 12111(10)(A), (B)(i)-(iv). called up by Governor Pataki were generally serving two 20. 38 U.S.C. § 4312(d)(1)(C).

16 Journal | November/December 2001 21. Jordan v. Jones, 84 F.3d 729, 732 (5th Cir.), cert. denied, 519 48. 38 U.S.C. § 4323(d). U.S. 976 (1996) (employer can refuse to reinstate reservist, 49. 38 U.S.C. § 4302. if employer had legally sufficient cause to terminate re- 50. The USERRA’s preemption provision comports with ear- servist at time he left). lier VRRA rulings. Cronin v. Police Dep’t, 675 F. Supp. 847 22. 38 U.S.C. § 4312(d)(2). (S.D.N.Y. 1987) (VRRA preempts New York law’s limita- 23. “Qualified” means “having the ability to perform the es- tion of pension credit). Likewise, the Mil. Law preempts sential tasks of the position.” 38 U.S.C. § 4303(9). all more restrictive rules, regulations and practices of 24. 38 U.S.C. § 4313(a)(1). “Reasonable efforts” means “ac- local government bodies. Board of Educ. v. Plicata, 42 tions, including training provided by an employer, that N.Y.2d 815, 396 N.Y.S.2d 644 (1977) (preempting Board of do not place an undue hardship on the employer.” 38 Education regulations); State v. New York State Pub. Rela- U.S.C. § 4303(10). tions Bd., 187 A.D.2d 78, 592 N.Y.S.2d 847 (3d Dep’t 1993) 25. 38 U.S.C. § 4313(a)(2). (more beneficial paid leave practice supersedes Mil. Law 26. 38 U.S.C. § 4313(a)(4). In addition, employees of the federal regarding the same). government may be offered a position of like seniority, sta- 51. Service in the state militia or other active duty of the state tus and pay at another federal agency if the former employ- is exclusively covered by the Mil. Law, not the USERRA. ing agency no longer exists or it is unreasonable to require Mil. Law §§ 6, 7, 242(1)(b), 301(1). that agency to reinstate the employee. 38 U.S.C. § 4314. 52. Mil. Law §§ 6, 7, 301(1). 27. 38 U.S.C. § 4313(a)(3). 53. Mil. Law § 317(4). 28. Under the ADA, an employer’s obligation to reasonably 54. Under the SSCRA, however, if an employee attends cer- accommodate a disabled employee does not generally retain training duty, including reserve duty training, he quire that the employee be given an alternative position. must re-apply for employment within 10 days after com- 29. 38 U.S.C. § 4311. The term “benefit of employment” pletion (or 60 days if for initial full-time training or active should be construed broadly, and includes “any advan- duty for training), regardless of the length of service. The tage, profit, privilege, gain, status, account, or interest SSCRA’s 10-day notice requirement is more restrictive (other than wages or salary for work performed) that ac- than the USERRA’s 14-day requirement for leaves of over crues by reason of an employment contract or agreement 31 days and less restrictive than the USERRA’s next cal- or an employer policy, plan, or practice and includes endar day requirement for leaves of under 31 days. Mil. rights and benefits under a pension plan, a health plan, Law § 317(1), (2), (2-a), (3). an employee stock ownership plan, insurance coverage 55. Mil. Law § 317(1)(c). and awards, bonuses, severance pay, supplemental un- 56. Mil. Law § 317(5). employment benefits, vacations, and the opportunity to 57. Mil. Law §§ 242(1)(b), 243(1)(b). At one time, § 242 only select work hours or location of employment.” 43 U.S.C. covered “ordered” military duty. This distinction may be § 4303(2). See also Hill v. Michelin N. Am., Inc., 252 F.3d of less significance since the 1993 amendment to section 307, 312-13 (4th Cir. 2001) (denying returning reservist 242 now covers “ordered” military duty “with or without the opportunity to work in a division offering a more reg- the consent” of the public employee. ular working schedule than the one to which he was as- 58. See Bill Memorandum, 1993 N.Y. Laws 2570 accompany- signed is denial of benefit). ing proposed amendments to §§ 242, 243 and 317 of the 30. 38 U.S.C. § 4316(b)(1)(B). An employer is not required to Mil. Law. comply with this provision, however, if an employee 59. Cf. conflicting definitions of “military duty” and “public “knowingly provides written notice of intent not to re- employee” and varying protections related to pension turn to a position of employment after service in the uni- credits (discussed infra note 67), in Mil. Law §§ 242 and formed service.” 38 U.S.C. § 4316(b)(2)(A). 243. The confusing interplay between these sections was 31. 38 U.S.C. § 4316(a). confirmed in telephone conversations with representa- 32. 38 U.S.C. § 4316(b)(4). tives from the N.Y.S. Division of Military and Naval Af- 33. 38 U.S.C. § 4317(a)(1)(A). fairs in October 2001. 34. 38 U.S.C. § 4317(a)(2). Notably, unlike COBRA, the 60. Id. USERRA does not provide for termination of coverage in 61. Mil. Law § 242(5). Many public employers, such as the the event of the qualified beneficiary’s non-payment of state judiciary and executive branch, are voluntarily pro- premiums, coverage under another group health plan or viding supplemental paid leave to service members to entitlement to Medicare. show their support in the current war against terrorism. 35. 38 U.S.C. § 4318(a)(1)(A). 62. Mil. Law § 242(4). 36. 38 U.S.C. § 4318(a)(2). 63. Mil. Law § 243(2). 37. 38 U.S.C. § 4318(b)(2). 64. Mil. Law § 243(5). 38. 38 U.S.C. § 4318(b)(3). 65. Id. However, the respective “reasonable efforts” and “rea- 39. 38 U.S.C. § 4316(d). sonable accommodations” of the USERRA and ADA 40. 38 U.S.C. § 4311(b). would be applicable in the first instance. 41. 38 U.S.C. § 4316(c). 66. Mil. Law §§ 242(6), 243(4). 42. See, e.g., Jordan v. Jones, 84 F.3d 729, 732 (5th Cir.), cert. de- 67. Section 242(6)(b) of the Mil. Law provides that contribu- nied, 519 U.S. 976 (1996); Couture v. Evergreen Int’l Airlines, tions be remitted within five years after the date of termi- 950 F. Supp. 614, 622 (D. Del. 1996). nation of duty, whether or not the employee returns to 43. 38 U.S.C. § 4311(c)(1). work, while § 243(4) states that contributions must be made 44. 38 U.S.C. § 4322(a)(2)(B). within five years of reinstatement to public service. 45. 38 U.S.C. § 4326. 68. Section 243-a (added in 1991) of the Mil. Law provides 46. 38 U.S.C. §§ 4322, 4323. service credit—without requiring employee contribu- 47. 38 U.S.C. § 4323(a)(2). Actions against a federal agency tions—in several major state retirement systems for those are handled by the Merit Systems Protection Board. 38 who served in the Persian Gulf War. U.S.C. § 4324. 69. Mil. Law §§ 243(5)-(9), (11), (12), 243-b, 243-c.

Journal | November/December 2001 17 Estates with Multiple Fiduciaries Pose Ethical and Practical Issues For Attorneys and Clients Alike The following is the first of two articles devoted to the conflicts that can arise when an attorney represents multiple fiduciaries, the difficulties faced when fiduciaries serve in more than one capacity, the practical implications of the duty of impartiality and the need to avoid any appearance of self-dealing. This article examines these issues from the attorney’s perspective. An article next month will consider these issues from the fiduciary’s perspective. ______No one can serve two masters, for either he will hate the one and love the other, or he will hold to one and despise the other. Matthew 6:24 BY JOHN R. MORKEN AND GARY B. FREIDMAN

he conflicts that can arise in the representation of conflicting loyalties. Representation by the estate attor- estate or trust fiduciaries are limited only by the ney in such a case presents similar problems. Timagination of creative counsel. Sometimes the Multiple Representation conflicts are obvious, sometimes subtle, sometimes ap- Because co-fiduciaries have a common duty to the es- parent from the inception of the relationship, and some- tate, there is no reason to presume adversity. An attor- times they develop over time. ney counseling multiple fiduciaries may hear different A typical example: You, the estates practitioner, are opinions about how they expect to handle estate mat- asked to attend a meeting with the named co-executors ters, but to suggest that such differences necessarily rise and co-trustees under the decedent’s will. They want to to the level of a conflict that would bar the attorney’s retain you to handle the probate and administration. representation under the ethical rules is not support- However, it soon becomes apparent that there are actual able.1 There is no statutory ground of ineligibility of a conflicts of interest between the estate and some of them fiduciary based solely on a potential conflict of interest.2 in their individual capacities. It also becomes clear that As Surrogate Michael H. Feinberg of Brooklyn has ex- potential conflicts may arise in their fiduciary capacities. Can you represent them as a group; and, if so, how? JOHN R. MORKEN is a partner at Farrell One of the individuals is already your client, and you Fritz in Uniondale. He is a member of also represent the closely held corporation of which he the Executive Committee of the is president. One of the assets of the estate is an interest NYSBA Trusts and Estates Law Sec- in that corporation. How do you advise this client re- tion and a fellow of the American Col- garding his respective responsibilities to the corporation lege of Trust and Estate Counsel. A and to the estate? graduate of Swarthmore College, he Another of these potential clients is the decedent’s received his J.D. degree from New widow, who is the income beneficiary of a Q-TIP trust York University School of Law. created under the will. At least some of the decedent’s interest in the corporation will very likely end up in the GARY B. FREIDMAN is a partner at Q-TIP trust. During the course of the meeting, she asks Greenfield Stein & Senior, LLP in New her brother-in-law, the president of the corporation, York City, where he practices trusts when she can expect “distributions” from the corpora- and estates litigation. He is a member of the Executive Committee of the tion. He does not respond. You know for a fact that the NYSBA Trusts and Estates Law Sec- corporation is a “C corporation” that has never declared tion. A graduate of Queens College, he dividends. There are also potential conflicts with respect holds a J.D. from St. John’s University to funding, allocation and valuation. What do you do? School of Law and a master’s degree The fiduciary’s task of being both faithful and sensi- from New York University Graduate School of Law. ble in his stewardship can be very difficult in the face of

22 Journal | November/December 2001 pressed it, “Where adverse interests are not involved, sentation, “even where there may be no misuse of confi- counsel is free to represent multiple clients.”3 dential information.” Indeed, although each fiduciary may hire her/his Both Dix and Opinion No. 512 were pivotal to the de- own attorney in the administration, the principle that cision in In re Hof.8 There, the decedent’s wife and a son lawyers, as a whole, will share one reasonable legal fee from a previous marriage were appointed co-adminis- certainly provides a financial incentive for having one trators. A falling-out occurred, and the attorney took the lawyer represent all fiducia- son’s side against his step- ries, upon their consent.4 mother in the accounting Such benefits, in the words of Although attorneys may euphem- proceeding. The stepmother Surrogate Feinberg, are “es- moved to disqualify the at- pecially important consider- istically say they represent an torney. Following the Third ations in the field of trusts estate, it is well-settled that they Department’s decision in and estates, where clients Dix, the Surrogate denied the may be better served by re- represent the estate’s fiduciaries. motion. The Second Depart- taining counsel to represent ment reversed and disquali- the family as a unit, includ- fied the attorney, relying in ing possible family-controlled entities in the context of part on Opinion 512, and emphasized “the mere ap- estate planning, administration, and even litigation.”5 pearance of impropriety” as well as conflict of interest. The lack of an obvious conflict between co-fiduciaries In holding that the attorney could not continue to repre- convinced the Appellate Division, Third Department, to sent either fiduciary, the court stated: “The critical issue deny a motion for disqualification in In re Dix.6 There, here, moreover, is not the actual or probable betrayal of the co-fiduciaries “consulted the attorneys for their mu- confidence, but the mere appearance of impropriety and tual benefit as prospective co-executors and it is difficult conflicts of interest (Code of Professional Responsibility, 9 to visualize what could possibly have transpired be- Canon 9).” tween the parties to create a confidential relationship, Who Is the Client? one to the other, sufficient in character to call upon the There is no general prohibition against an attorney attorneys now to withdraw because of such relation- representing an executor who has a potentially adverse ship.” individual interest against the estate.10 However, in such The issue of disqualification in Dix came up in the a circumstance, the attorney must be careful to represent context of a probate proceeding. The New York State Bar the client in her/his fiduciary capacity alone.11 This is Association’s Committee on Professional Ethics was but an instance of the general proposition that an attor- asked in 1979 to answer the following questions related ney may not represent two clients with conflicting to an accounting proceeding: interests.12 For example, an attorney representing one A lawyer represents two co-executors, one is a bank and co-administrator may not also represent that co-admin- the other is a principal beneficiary of the estate. The istrator’s spouse with respect to a claim against the es- bank has allegedly extended the administration long tate.13 past that period within which it should have been set- The responsibilities of an estate attorney are some- tled and has failed to account. Under the circumstances: (1) May the lawyer institute a proceeding on behalf of what muddied by the confusion over whether the client the executor-beneficiary to compel the bank to perform is the executor of the estate or its beneficiary. Although its duties? (2) If the executor-beneficiary retains other attorneys may euphemistically say they represent an es- counsel to institute such a proceeding, may the lawyer tate, it is well-settled that they represent the estate’s represent the bank in connection therewith? (3) May the fiduciaries.14 “Only persons, natural or legal, can retain lawyer continue to represent the executors in connec- an attorney. An estate is a res. An estate cannot enter into tion with any matters relating to the estate?7 a retainer contract with counsel. A lawyer cannot com- In answering these questions, the Committee on Pro- municate with an estate.”15 This is hardly a distinction fessional Ethics reviewed Canons 5, 7 and 9 of the Code without a difference, and it can lead to some trouble- of Professional Responsibility. It then concluded that the some problems. As Ordover and Gibbs point out, one first two questions had to be answered in the negative area of confusion caused by the lack of clarity about and that the third could be answered in the affirmative, whether the executor or the estate is the client, concerns provided such representation was limited to matters “as the attorney-client privilege. Several decisions have to which there is no conflict between the executors.” The held that there is no privilege between the fiduciary and committee labeled the prospect of the attorney litigating her/his attorney, at least as to beneficiaries, before any against either of his former clients as “turncoat” repre- litigation takes place.16 As Ordover and Gibbs note, in

Journal | November/December 2001 23 effect this results in the beneficiary being treated as the the beneficiary contended that payment of the commis- client, which “erodes the key relationship between the sion should be disallowed because, as attorney for the fiduciary and counsel.”17 fiduciary, the attorney engaged in an impermissible con- Regardless of the existence of the attorney-client flict of interest when he acted as broker for the sale of an privilege in this context,18 the lawyer representing the estate asset. executor still has a duty to serve the best interest of the The Surrogate sustained the objection, holding that estate to which the executor owes fiduciary responsibil- the payment of the commission to the attorney was ities.19 Both the New York State Bar Association Com- “self-dealing,” the same as if the fiduciary had been the mittee on Professional Ethics and the Bar Association of broker and been paid a commission. Although the court Nassau County Committee on Professional Ethics have could have simply based its decision on the line of ethics issued opinions on similar questions concerning the opinions holding that an attorney may act a broker in a duty of the executor’s lawyer when the lawyer learns transaction only where he does not participate in the that the executor may be engaged in wrongdoing or transaction as an attorney or give legal advice to any of even fraud.20 The conclusion of the State Bar Commit- the parties,22 it went further and held that the attorney tee’s opinion is very significant, particularly in light of for a fiduciary has the same obligation as the fiduciary the current trend in the case law holding that there is no to refrain from self-dealing with trust property: privilege between the executor and her/his attorney, ex- Having found that the attorney in this case engaged in cept in the context of litigation. The questions posed to self-dealing without the consent of all the beneficiaries the committee were as follows: (1) What are the respon- the Court need not inquire whether he acted in bad sibilities of the attorney for the executor upon learning faith or whether the estate incurred damages as a result that the executor plans to breach its fiduciary duties? of his conduct. The attorney was not entitled to a com- (2) Does the attorney for an executor have a duty to dis- mission for his services as real estate broker. close to the beneficiaries or the court supervising the estate that the executor has taken action in breach of its This rule, although harsh, is based upon the strong pol- fiduciary obligations? The committee concluded: icy of this state that attorneys not place themselves in a position that might interfere with their ability to exer- For the reasons stated above, we conclude with respect cise their professional judgment freely or might ad- to the first question that in such circumstances the ex- versely affect their ability to render legal advice. The ecutor’s lawyer must request that the executor refrain facts of this case underscore the importance and value from breaching its fiduciary duties, decline to assist of this policy. such misconduct in any way, and consider whether withdrawal as counsel is required or advisable if the ex- It is evident from the record that [the attorney] failed to ecutor does not accept counsel’s advice. give [the fiduciary] appropriate legal advice concerning his obligations in selling the real estate. Petitioner’s as- With respect to the second question, we conclude that sertion that his fiduciary duty required him to sell the the lawyer should disclose the executor’s past miscon- property for “fair market value or more” is not entirely duct unless such disclosure is prohibited because the correct. In a case involving self-dealing, an estate fidu- information qualifies as privileged or secret; determina- ciary was found to have the duty to “obtain the best tion of whether the information so qualifies turns on price possible for the sale of decedent’s real property.” issue of law. In addition, counsel should request the ex- In re Stalbe, 130 Misc. 2d 725, 729 (N.Y. Sur. Ct., N.Y. Co. ecutor to rectify the misconduct, withdraw from the 1985). representation of the executor if the executor declines to do so, and not assist in any conduct or communication * * * that is false or misleading. Here, the conflict of interest is plain. Petitioner had an Self-Dealing obligation to sell the property within a reasonable pe- The prohibition against self-dealing by the fiduciary riod of time at the highest possible price. It was not in the attorney’s interest for the sale to be made to any has been extended to the attorney for the fiduciary. In In 21 purchaser other than his own, at any price. Petitioner re Kellogg, the fiduciary’s attorney was also retained as had a need for maximum exposure to assist him in ful- a broker for the sale of the estate’s Greenwich Village filling his obligation. The attorney stood to gain only if townhouse. The attorney found a buyer for the prop- other brokers were excluded, which he took active steps erty, the sale closed and the broker/attorney received a to ensure. standard 6 percent brokerage commission. On the fidu- The decision in Kellogg is in accord with established ciary’s final accounting, a residuary beneficiary objected Court of Appeals precedent holding that an attorney for to the payment. There was no claim made that the prop- a fiduciary has the same duty of undivided loyalty to erty was not sold at fair market value or that the com- the cestui as the fiduciary himself.23 mission was more than a standard commission. Instead,

24 Journal | November/December 2001 Advice, Direction and Full Disclosure taken a more passive role with regard to administration, These cases and bar association opinions lead to the sided with objections filed by the income beneficiary. conclusion that the estate practitioner must balance Accordingly, the law firm representing the widow filed three underlying principles in any case of multiple rep- a notice of appearance on behalf of the income benefi- resentation. This balancing is often difficult, because the ciary and the co-trustees after full disclosure and after three different principles may be at odds with each written consents were obtained from both. Despite such other in any given case: consent and disclosure, the Surrogate disqualified the First: Multiple representation is frequently requested firm from representing the co-trustee “on the ground of of the estate attorney because such may be advanta- a conflict of interest.” The court went on to hold that be- geous to the fiduciaries, the estate and the beneficiaries, cause the firm should have been aware of the conflict of all of whom are frequently parts of a single family. interest “prior to accepting the retainer, no fee can be 27 Second: The attorney must avoid any appearance of awarded.” Several appellate decisions have likewise “turncoat” representation and maintain an undivided held that a firm may not recover legal fees in circum- loyalty to the client or clients. stances where its representation violated the Code of Professional Responsibilities because of particularly Third: As counsel for the estate fiduciary or fiducia- 28 ries, the attorney also has egregious conflicts. fiduciary duties to the bene- Accordingly, to avoid just this kind of dilemma, the law ficiaries and to the estate. Even upon full disclosure and These demands all confirm in Sackler sought advice verged in the estate of Dr. consent, conflicts of interest may and direction. In its applica- Arthur M. Sackler.24 His will tion, the firm expressly noted named his third wife, his be such that a disqualification that it would not represent four children, his first wife is still required. any party against any of the and an attorney as executors. other six executors in their From inception it was appar- capacities as executors, thus ent that there was a multitude of conflicts. On virtually distinguishing In re Hof. The every issue at least some executors, in their individual Surrogate approved the application, holding that the capacities or through entities which they controlled, had firm’s representation, which was limited to representing claims at odds with either other executors or with the the executors in their fiduciary capacity against the per- estate generally. Various law firms were retained to rep- sonal claims of the individual executors, would not give resent the executors in their individual and fiduciary ca- rise to an appearance of impropriety and would not re- pacities. While each executor had her/his own attorney sult in it representing conflicting interests. The court in both individual and fiduciary capacities, they all rec- cautioned, however, that its “mantle of approval” was ognized the benefit of having a “general counsel” to col- not “carte blanche” and said it would remain sensitive to the need for the firm to retain an uncompromising lectively represent them, solely in their representative 29 capacity, and they therefore retained one firm for this loyalty to the estate. purpose. Wisely, that firm obtained from each individ- The focus of the Surrogate in Sackler on the undi- ual executor a written agreement that the firm would vided loyalty of the firm was consistent with Discipli- not face a conflict in defending the estate’s position and nary Rule 5-105 (DR), which is the most important ethi- representing other executors against any claim the ex- cal rule governing conflicts of interest. In particular, ecutor brought against the estate in an individual ca- subdivision C of the rule provides that a lawyer “may pacity. Such agreement was consistent with the princi- represent multiple clients if a disinterested lawyer ple that clients generally may waive their right to would believe that the lawyer can competently repre- conflict-free representation upon full disclosure.25 Even sent the interest of each and if each consents to the rep- with full disclosure and informed consents, however, resentation after full disclosure of the implications of the the firm was concerned, and therefore an application simultaneous representation and the advantages and was made to the Surrogate for advice and direction re- risks involved.” The requirement that the lawyer can garding the firm’s role. “competently represent” the “interest” of each client is That concern was well-placed. Even upon full disclo- clearly what prompted the Surrogate in his decision in sure and consent, conflicts of interest may be such that a Sackler to caution that it was not providing “carte disqualification is still required.26 A case in point is the blanche” approval for multiple representation. Presum- estate of Milford E. Abel. There, co-trustees had a differ- ably, it is this requirement that also prompted the Surro- ence of opinion about how to treat the income benefi- gate to disqualify the attorneys in In re Abel; the primary ciary, the decedent’s widow. One co-trustee, who had distinction being that in Abel the attorneys were repre-

Journal | November/December 2001 25 sure letter when multiple fiduciaries are to be repre- When these issues have both sented: • Inform each potential client of her/his right to sep- been discussed and put in writing arate counsel in both individual and fiduciary capaci- in the retainer letter, the clients ties. In certain instances, the estate attorney might insist that before signing a retainer letter the potential client can make an educated decision be represented individually. whether to proceed with one • Specify in the retainer letter the capacity of representation, i.e., as a fiduciary, not as a beneficiary or indi- attorney or seek separate counsel. vidually. Emphasize in this regard that counsel will not represent the client individually against the estate. senting a claimant individually, as well as a co-trustee, • Include a waiver by the clients of any future claims whereas in Sackler the law firm stated that in no event of conflict arising from the multiple representation, in- would it ever represent an executor individually in a cluding a statement that the lawyer would not be con- claim against the estate.30 flicted out in defending the estate against any claim that the client might bring against the estate in his/her own In In re Roccesano,31 a law firm that had represented individual capacity. In the event that one of the clients seven objectants in a probate contest moved for leave to determines in the future to retain separate counsel in withdraw from the representation of one when it his/her fiduciary capacity, the consents could also in- learned of a potential conflict among the seven in the clude a waiver of any claim at that point that counsel event that the probate contest was successful. A cross- cannot continue to represent the other fiduciaries. motion was made to disqualify the law firm based on an allegation that one objectant had imparted confidential • Spell out with specificity all potential areas of po- information. Because there was no proof that any such tential conflict. information had been imparted, the court rejected this • Describe the advantages and risks of multiple rep- claim and held that because the cross-movant was an at- resentation, emphasizing the latter, particularly if dis- torney who was aware of the potential conflict from the qualification is necessary in the future, resulting in the outset of the representation, there was no basis for dis- need to hire new attorneys. qualification of the firm. It cited DR 5-105(C), which per- • Include a provision indicating that where litigation mits representation of multiple clients where the clients is brought by one client in her/his individual capacity consent to a waiver of the conflict. against the others in their fiduciary capacities, the attor- Presumably, written consent for multiple representa- ney’s communication with the latter regarding the same tion would be contained in the retainer letters signed by will be privileged and not subject to disclosure, as will the clients.32 What should the informed consent for mul- the attorney’s work product. tiple representation of co-fiduciaries contain? The fol- • Have a provision explaining that the attorney- lowing suggestions from Simon’s NY Code of Professional client privilege will not apply generally between the co- Responsibility are helpful: clients, nor will it apply to beneficiaries, at least when The disclosure [signed by each of the common there is no litigation. clients] should include such considerations as: • Consider a provision stating that in the event the • the advantages and risks of multiple representa- court determines that there is a conflict and disqualifies tion; the attorney, while also holding that the estate is not ob- • the situations that might cause the interests of one ligated for the attorney’s services, the clients will be in- client to diverge from the interest of another client and dividually responsible for fees.34 how likely those situations are to occur; Some of these provisions might seem onerous, possi- • the harm it may cause to the various clients if the bly causing the clients not to hire the attorney. However, lawyer is forced to withdraw from the representation that is precisely the point—the estate attorney should (including delay, increased expense, and the probable approach any multiple representation with a great deal lack of any attorney-client privilege among the clients in of caution. Further, multiple representation where there the prior, joint representation); are actual conflicts of interest should be avoided assidu- • the effect on the attorney-client privilege if the ously. In addition, when these issues have both been clients get into a dispute with each other in the future.33 discussed and put in writing in the retainer letter, the To implement these principles, some or all of the fol- clients can make an educated decision whether to pro- lowing subjects should be covered in a consent/disclo- ceed with one attorney or seek separate counsel.

26 Journal | November/December 2001 Apply the Principles 15. Ordover and Gibbs, Fiduciaries, Attorneys and Duty to Returning then to the hypothetical at the beginning Beneficiaries, N.Y.L.J., Feb. 25, 1999, p. 3, col. 1. of this article, the attorney can be in a position to repre- 16. See, e.g., In re Community Serv. Soc’y, N.Y.L.J., Nov. 14, 1997, p. 26, col. 2 (Sur. Ct., N.Y. Co.); see also In re Baker, sent all the individuals as co-executors, provided that 139 Misc. 2d 573, 528 N.Y.S.2d 470 (Sur. Ct., Nassau Co. no actual conflicts are apparent and that the decedent’s 1988). widow is separately represented. 17. Commentaries on the Model Rules of Professional Con- A retainer letter should include the provisions sug- duct 57 (3d ed. 1999) (which provides: “The lawyer for the fiduciary owes some duties to the beneficiaries of the gested above, with written consents and full disclosures fiduciary estate although he or she does not represent being obtained from each client. them. . . . Some courts have characterized the beneficia- Full disclosure should also be made to the board of ries of a fiduciary estate as derivative or secondary directors of the corporation in which the estate has an clients of the lawyer for the fiduciary”). interest, and in no event should the attorney participate 18. Abolition of the so-called attorney-fiduciary exception to the attorney-client privilege is the subject of proposed in any litigation between the estate and the corporation; legislation, sponsored by, among others, the New York for that they must retain separate counsel. Full disclo- State Bar Association. sure should be made regarding the varying interests 19. See NYSBA Op. No. 512. and decisions that the fiduciaries will have to make, 20. NYSBA Op. No. 649 (1993); Bar Ass’n of Nassau County with respect to matters such as allocation, funding, eval- Comm. on Professional Ethics, Op. No. 97-10. (hereinafter uation and distribution. For that reason, the attorney “Nassau Bar Ethics Op.”). should insist that the decedent’s widow have indepen- 21. N.Y.L.J., Dec. 30, 1999, p. 25, col. 4 (Sur. Ct., N.Y. Co.). dent counsel representing her as a co-executor and indi- 22. See, e.g., Nassau Bar Ethics Op. 92-18, N.Y.L.J., Aug. 12, vidually, albeit with the understanding that the con- 1992, p. 2, col. 1. sulted attorney can still represent her in fiduciary 23. In re Clarke, 12 N.Y.2d 183, 237 N.Y.S.2d 694 (1962); In re matters unrelated to the Q-TIP. Bond & Mortgage Guarantee Co., 303 N.Y. 423 (1951). For an excellent discussion of Kellogg and its antecedents, see Finally, as an extra caution, an application to the Sur- Ordover and Gibbs, Duty of Fiduciary’s Attorney to Benefi- rogate might be considered. ciaries, N.Y.L.J., Feb. 28, 2000, p. 3. 24. In re Sackler, N.Y.L.J., May 16, 1989 (Sur. Ct., Nassau Co.). 1. See, e.g., In re Flasterstein, 27 Misc. 2d 326, 210 N.Y.S.2d 25. In re Abrams, 62 N.Y.2d 183, 199, 476 N.Y.S.2d 494 (1984). 307 (Sur. Ct., Kings Co. 1960). 26. See In re Kelly, 23 N.Y.2d 368, 378, 296 N.Y.S.2d 937 (1968). 2. In re Marsh, 179 A.D.2d 578, 578 N.Y.S.2d 911 (1st Dep’t 1992); see generally, Warren’s Weed, Heaton on Surrogates’ 27. In re Abel, N.Y.L.J., Oct. 23, 1992, p. 26, col. 3 (Sur. Ct., Courts § 33.02[5][I]. Nassau Co.). 3. In re Brandman, N.Y.L.J., Nov. 15, 1999, p. 29, col. 3 (Sur. 28. See In re Winston, 214 A.D.2d 677, 625 N.Y.S.2d 927 (2d Ct., Kings Co.). Dep’t 1995) (“An attorney who engages in misconduct by 4. See, e.g., In re Mergentime, 155 Misc. 2d 502, 503, 588 violating the Disciplinary Rules is not entitled to legal N.Y.S.2d 736 (Sur. Ct., Westchester Co. 1992). fees for any services rendered”); In re Klenk, 204 A.D.2d 640, 612 N.Y.S.2d 220 (2d Dep’t 1994). 5. In re Brandman, N.Y.L.J., Nov. 15, 1999, p. 29, col. 3 (Sur. Ct., Kings Co. 1999). NYSBA Comm. on Professional 29. In re Sackler, N.Y.L.J., May 16, 1989 (Sur. Ct., Nassau Co.). Ethics, Op. No. 512, 1979 (hereinafter “NYSBA Op.”). 30. See In re Brandman, N.Y.L.J., Nov. 15, 1999, p. 29, col. 3 6. 11 A.D.2d 555, 199 N.Y.S.2d 958 (3d Dep’t 1960). (Sur. Ct., Kings Co.) (which held that if a conflict is actual 7. NYSBA Op. 512. and not just potential, and if it is of a substantial nature, “dual representation is prohibited even if the parties con- 8. In re Hof, 102 A.D.2d 591, 478 N.Y.S.2d 39 (2d Dep’t 1984). sent”). 9. Id. 31. N.Y.L.J., June 11, 2001, p. 34, col. 1 (Sur. Ct., Nassau Co.). 10. In re Flasterstein, 27 Misc. 2d 326, 210 N.Y.S.2d 307 (Sur. 32. See ACTEC, Engagement Letters; A Guide for Practition- Ct., Kings Co. 1960). ers (1st ed. 1999). 11. See In re Birnbaum, 118 Misc. 2d 267, 460 N.Y.S.2d 706 (Sur. Ct., Monroe Co. 1983). 33. Simon’s NY Code of Professional Responsibility Anno- tated (1998 ed.), DR 5-105. 12. See Green v. Green, 47 N.Y.2d 447, 418 N.Y.S.2d 379 (1979). 34. This particular recommendation is problematic, as is the 13. In re Belfer, N.Y.L.J., Mar. 12, 1985 (Sur. Ct., Nassau Co.). second recommendation in item 3. The authors believe 14. See In re Schrauth, 249 A.D. 847, 292 N.Y.S. 925 (2d Dep’t that such should be enforceable, at least in most cases. 1937) (“there can be no such retainer as an attorney for an estate”); In re Scanlon, 2 Misc. 2d 65, 69, 150 N.Y.S.2d 511 (Sur. Ct., Kings Co. 1956).

Journal | November/December 2001 27 Need for a Testifying Physician To Rely on Reports by a Non-Testifying Physician Poses Evidentiary Problems The following is the first of two articles devoted to issues that arise when one physician is asked to give trial testimony based on the report of a physician who is not testifying. In an effort to dispel the considerable confusion that surrounds these issues, this article examines New York State case law and identifies the legal criteria that govern these decisions. A second article, to appear next month, makes some proposals for clarifying the evidentiary rules.

BY MARCY S. FRIEDMAN videntiary disputes frequently arise at trial regard- Under the common law, expert opinion based on ing both the extent to which a physician may tes- hearsay material was impermissible. It was settled that tify to an opinion that is based on the report of a “opinion evidence must be based on facts in the record E 3 physician who is not testifying and the circumstances or personally known to the witness.” In People v. Sug- under which the testimony about the report or the re- den,4 the Court of Appeals recognized two limited ex- port itself may be admitted into evidence.1 ceptions to this rule, holding that an expert may also 5 Issues involving the extent to which a physician may rely on out-of-court material if “it is of a kind accepted rely on another physician’s report typically arise when in the profession as reliable in forming a professional the other physician’s report is not in evidence and that opinion” or if it “comes from a witness subject to full 6 physician has not been called to testify. Under these cir- cross-examination on the trial.” cumstances, the report of the other physician is hearsay. It is the reliability exception that is typically at issue In many cases, hearsay objections to using the report in determining whether a physician may give an opin- of the non-testifying physician may be avoided by the ion based on another physician’s report. As a review of simple expedient of admitting the report under the busi- the case law will show, this concern for reliability ex- ness records exception to the hearsay rule: N.Y. Civil plains why the courts make a distinction between treat- Practice Law and Rules 4518(c) (hereinafter CPLR) ing and non-treating physicians, with reliance on other makes certified hospital records routinely admissible as physicians’ reports by the former more liberally al- business records. Case law holds that a treating physi- lowed. Concern for reliability, as well as for the right to cian’s office records, including expressions of medical confront witnesses, explains the further distinction opinion, are admissible as business records, without the made between reports that contain opinion on ultimate necessity of calling the treating physician, where a foun- issues in the case and reports that record more objec- dation is laid by an authenticating witness from the tively verifiable findings. Testimony based on the objec- treating physician’s office, and the entries are germane tive findings is more readily, although still cautiously, to diagnosis and treatment.2 CPLR 4532-a provides a permitted. simplified procedure for admission of X-rays, MRIs and Opinion on Ultimate Issues other specified tests. In a leading case, Borden v. Brady,7 the Appellate Di- The hearsay issues addressed in this article are not vision, Third Department, recognized the reliability ex- implicated when there is an independent basis in the record for the admission of the report—that is, a basis under the business records or other recognized excep- MARCY S. FRIEDMAN is a justice of the tion to the hearsay rule that is separate from the testify- Supreme Court, New York County. She is a graduate of Smith College and ing physician’s testimony that the report is reliable and received her J.D. from the University that he or she relied on the report in formulating an of Pennsylvania School of Law. opinion. In the absence of such an independent basis, the propriety of the testifying physician’s reliance on the report will be analyzed by the courts in light of extensive case law governing the extent generally to which an expert’s opinion may be based on hearsay.

28 Journal | November/December 2001 ception but held that it was error to permit a treating physician’s diagnosis in the already pending personal physician, the plaintiff’s orthopedic surgeon, to give an injury suit. If the report had been obtained for treatment opinion on the permanency of the plaintiff’s condition and hence was reliable, the concurrence would have based on a report of a neurologist to whom he had re- permitted the testifying physician to rely even on the ferred the plaintiff for evaluation. In so holding, the opinions in the report, based on the following reason- court noted that the report ing: “Reliability of the mater- “constituted an expression ial is the touchstone; once re- of opinion on the crucial A report used only for testimony liability is established, the issue of the permanency of obviously lacks the guarantees of medical expert may testify plaintiff’s injuries and about it even though it formed the principal basis reliability in a report actually would otherwise be consid- for the expert witness’ opin- ered inadmissible hearsay ion on the same issue, not relied upon for treatment decisions [citations omitted]. The un- merely a link in the chain of affecting a patient’s health. derlying rationale is that data on which that witness since physicians make life relied.”8 The court also held and death decisions in re- that it was error to admit the neurologist’s report into liance upon medical reports filed by other doctors and evidence and to permit it to be read to the jury, as People medical personnel, those reports, though not indepen- v. Sugden did not intend “to carve out such a new ex- dently admissible in evidence, enjoy a singular trust- ception to the hearsay rule.”9 worthiness.”10 The fact that the court found error in admission of the The Borden v. Brady concurrence points up the ratio- report must not obscure that the case also determined nale for distinguishing between treating and non-treat- the separate issue of whether the testimony could be ing physicians for purposes of determining whether based on the report, even if the report itself were not ad- they should be permitted to give opinion testimony mitted. Borden v. Brady stands for the proposition that a based on the unadmitted reports of other physicians. A testifying treating physician may not give an opinion re- report used only for testimony obviously lacks the guar- garding an ultimate issue in the case (e.g., causation or antees of reliability found in a report actually relied permanence of the injuries) if the “principal basis” for upon for treatment decisions affecting a patient’s health. the opinion is the report of a non-testifying physician, where there is no independent basis for admission of the Not surprisingly, therefore, the case law consistently report. holds that a non-treating expert may not testify based This result is consistent with People v. Sugden, which, on the report of another physician, where the report is not independently admitted and the other physician is while carving out an exception that permitted experts to 11 rely on unadmitted material of a kind accepted as reli- not a witness at trial. able in forming an opinion, continued to insist that there The more difficult question, posed by the Borden v. must be an independent basis for the opinion. That is, Brady concurrence, is whether the apparent reliability of People v. Sugden did not give license to experts to base an out-of-court report that has actually been used in their opinions primarily on out-of-court material, even treating the plaintiff is sufficient to justify the treating if reliable. Rather, it held that their opinions would not physician’s use of the report at trial as a principal basis be rendered invalid based on their reliance on reliable for an opinion on a critical issue in the case. There are out-of-court material, provided that there was an inde- persuasive arguments in support of such use. As the pendent, non-hearsay basis for their opinions. Borden v. Brady concurrence implicitly argues, such a tes- A fine concurrence in Borden v. Brady (Yesawich, J.) timonial use acknowledges the out-of-court medical re- argued for broader reliance by testifying treating physi- ality that treating doctors routinely refer their patients cians on out-of-court reports than that sanctioned by the to other doctors for evaluation and testing, and rely on majority or envisioned by People v. Sugden. The concur- the other doctors’ reports in determining the course of rence agreed with the majority that the testifying physi- their patients’ treatment. Allowing use of the reports at cian was improperly permitted to give an opinion based trial would also acknowledge the in-court reality that on the out-of-court report. However, the basis for this the high expert witness fees charged by medical experts, agreement was not that the out-of-court report ex- and the difficulties in scheduling their appearances at pressed an opinion on an ultimate issue but that the par- trial, make it infeasible for many plaintiffs to offer testi- ticular report was not in fact reliable. It had been ob- mony from the several medical experts who may have tained by the treating orthopedist not for use in the been consulted about or participated in the plaintiffs’ plaintiff’s treatment but rather to reinforce the treating treatment.

Journal | November/December 2001 29 On the other hand, the reliability of the out-of-court admissible evidence, where its probative value is out- material is not the only factor the courts must consider weighed by the prejudice to the opposing party—here, in determining the permissible basis for an expert opin- deprivation of the opportunity to confront an adverse ion. The interest of the opposing party in confronting witness on a crucial issue.16 witnesses on critical issues in the case must also be The line thus remains firmly drawn against testi- taken into account. A compelling argument may be mony about an ultimate issue in the case, even by a made that this interest is unfairly overlooked by an evi- treating physician, where the principal basis for the dentiary rule that would permit even a treating doctor opinion is an out-of-court report containing a non-testi- either to base an opinion about a critical issue in the case fying physician’s opinion on that issue. Even when a primarily upon another doctor’s report, or to testify testifying physician is permitted to base an opinion in about the contents of the other doctor’s report when the part upon an out-of-court report, use of the report is other doctor is not subject to cross-examination. sharply restricted: The courts uniformly preclude ad- Although this latter concern has not been expressly mission of the report into evidence, absent a basis for articulated by the courts, it may explain why the Borden admission independent of the testifying physician’s re- v. Brady majority opinion remains good law. In Schwartz liance upon it. Moreover, it is clear that the courts will v. Gerson,12 the testifying physician, a surgeon, gave tes- permit only limited testimonial references to the con- timony that he relied “in part” on the out-of-court re- tents of the report, although the precise scope of the per- port of another doctor in determining whether the missible testimony has not been defined. In Borden v. plaintiff needed surgery. The report was also admitted Brady,17 one of the few sources of authority on the issue, into evidence and read to the jury. The court assumed, the majority noted its disapproval of the treating physi- without deciding, that it was not improper to permit the cian’s testimony to the extent it went beyond “iden- surgeon’s testimony. This assumption was, of course, tify(ing) the report” and “explain(ing) its significance in consistent with Borden v. Brady, to the extent that it performing his opinion.”18 mitted the testifying treating physician’s partial, as op- Although there is scant authority concerning testi- posed to principal, reliance on another physician’s out- mony based on, or about, a report that addresses mat- of-court report. Citing Borden v. Brady, the Schwartz v. ters that fall short of ultimate issues, under the stan- Gerson court further held that it was reversible error to dards set forth in Borden v. Brady, such testimony should admit the report, because it expressed an opinion on the be permitted by a treating physician if the report is reli- “crucial issue” of causation of the plaintiff’s injuries.13 able, and is not a principal basis for the opinion. One Although the court did not so note, there was also a case on point, Marulli v. Pro Security Serv., Inc.,19 held question about the reliability of the report, because it that the trial court properly permitted “limited refer- was prepared by a doctor who had examined the plain- ence” by the plaintiff’s testifying succeeding treating tiff for his insurance carrier. physicians to the contents of a report prepared by the More recently, in Brown v. County of Albany,14 the Ap- plaintiff’s non-testifying original treating physician, pellate Division, Third Department, held, citing Borden where the report provided information regarding the v. Brady, that the plaintiff’s treating doctor was properly care given to the plaintiff shortly after the accident.20 precluded from giving his opinion on causation based solely upon the opinion expressed in the report of the Opinion Based on Test Results orthopedist who had treated the plaintiff immediately The courts have taken a more liberal, but still cau- after his accident. In reaching this result, the court rea- tious, approach to testimony based on, and about, out- soned that causation was a “central issue” in the case, of-court reports that set forth and evaluate the results of and that the prior doctor’s opinion was the “sole so-called objective tests such as MRIs and X-rays. The source” of the testifying physician’s opinion on causa- courts continue to distinguish between treating and tion, not merely “a link in the chain of data” on which non-treating physicians for purposes of such testimony, he relied.15 The court also observed that the reliability of but they give non-treating physicians broader latitude the prior doctor’s opinion was in question, as it ap- in testifying to opinions based on test results than in giv- peared to have been based on a history taken from the ing opinions about other issues. plaintiff regarding the accident. Notably, the Brown v. Treating Physicians In a leading case, Serra v. City of County of Albany court refused to allow the testifying New York,21 the plaintiff’s treating physician sent the physician’s reliance on the prior doctor’s opinion, plaintiff for an MRI in order to confirm a diagnosis. The notwithstanding that the prior treating doctor’s records Appellate Division, Second Department, held that an had in fact been admitted into evidence. The case thus MRI report is data “of the kind ordinarily accepted by appears to represent an exercise of the court’s discretion experts in the field,” and that under the circumstances it to preclude expert testimony, whether or not based on was not error to permit the treating physician to testify

30 Journal | November/December 2001 “with respect to” the MRI report.22 The court further missibility of testimony based on a non-treating physi- held that because no foundation had been laid to permit cian’s own reading of unadmitted MRI or X-ray films, as its admission under an exception to the hearsay rule, it opposed to testimony based on another physician’s un- was error, albeit harmless, to admit the MRI report into admitted report of an MRI or X-ray. These cases have evidence. In Pegg v. Shahin,23 taken pains not to find reversible error based on a non- the same court again held treating expert’s formulation that it was “not error for the The courts will not permit even of an opinion based on the trial court to permit the expert’s own reading of the (treating) physician to testify a more objective report to form unadmitted films. The same with respect to the MRI and approach was followed in a X-ray report.”24 Citing People the basis for an opinion, where recent case involving a non- v. Sugden and Serra v. City of the report has not been used treating expert’s reliance on New York, the court noted another physician’s out-of- that the treating physician for treatment and therefore court report of a test. had sent the plaintiff for tests lacks indicia of reliability. Analysis of expert testi- in order to “confirm his diag- mony based on unadmitted nosis” and that the MRI and films of tests begins with X-ray reports were data “of the kind ordinarily accepted Hambsch v. New York City Tr. Auth.,30 in which the Court by experts in the field.”25 A recent case, Torregrossa v. We- of Appeals stated that it was error to permit the plain- instein,26 is to the same effect. tiff’s expert to testify to an opinion as to the nature of Under Serra v. City of New York and its progeny, then, the plaintiff’s condition based on his reading of an X-ray the treating physician must have a basis, independent of of the plaintiff, without producing the X-ray and intro- the report of test results, for his or her diagnosis. How- ducing it into evidence. Although the statement was in ever, the treating physician may testify about the con- fact dictum (the Court of Appeals expressly noted that tents of the report, although the report itself will not be there was no objection to the expert’s testimony “and admitted into evidence. the matter is not preserved for our review”31), subse- 32 In the most recent case on the subject, Sigue v. Chemi- quent courts have endeavored to distinguish Hambsch. cal Bank,27 the Appellate Division, First Department, In Karayianakis v. L & E Grommery, Inc.,33 the Appel- confirmed the importance of the requirement that the late Division, Second Department, was called upon to testifying physician have an independent basis for her determine whether the trial court had erred in permit- or his opinion, even when relying on a so-called objec- ting the plaintiff’s non-treating expert to base his opin- tive report of test results. The Sigue court held that the ion upon his review of X-rays that were not introduced trial court committed reversible error in allowing the into evidence. Citing Hambsch, the court noted that “[i]n plaintiff’s neurologist to testify as to the plaintiff’s diag- situations where a medical expert’s conclusions are nosis based on an arthrogram report prepared by a non- based upon an analysis of X rays of a plaintiff’s injuries, testifying doctor. Citing Borden v. Brady28 and Brown v. the failure to introduce the X rays into evidence may County of Albany,29 the court reasoned that the report constitute error.”34 The court found the case before it “constituted an expression of opinion on the crucial is- distinguishable, as the expert’s testimony was based on sues of the existence and severity of plaintiff’s injuries a physical examination of the plaintiff as well as on the and formed the principal basis for the neurologist’s X-rays. The court also noted that the references to the X- opinion on those issues, ‘not merely a link in the chain rays were minimal and “for the most part, served to of data upon which that witness relied.’” In holding that confirm the conclusions drawn by the expert following the testifying doctor should not have been allowed to his independent examination of the injured plaintiff.”35 give testimony based on the arthrogram report, the The failure to produce the X-rays thus was held not to court also noted that the report was not addressed to the warrant reversal. testifying doctor. The case thus further confirmed that In Pegg v. Shahin,36 which involved testimony by non- the courts will not permit even a more objective report treating as well as treating experts, the court found no to form the basis for an opinion, where the report has reversible error as a result of the non-treating experts’ not been used for treatment and therefore lacks indicia testimony based on unadmitted X-rays and MRI films. of reliability. Although Sigue did not cite the Serra line of Citing Karayianakis v. L & E Grommery, the court rea- cases from the Second Department, it is thus consistent soned that the failure to produce the X-rays and MRI with their central precepts. films did not “warrant reversal,” as the experts made Non-Treating Physicians The cases involving non- physical examinations of the plaintiffs, and the refer- treating physicians have generally considered the ad- ences to the tests “for the most part, served to confirm

Journal | November/December 2001 31 the conclusions drawn by the respective experts follow- expert may not be a conduit for hearsay. In the case of ing their independent examination of these plaintiffs.”37 non-treating physicians, the courts have not affirma- In Nuzzo v. Castellano,38 the Appellate Division, Sec- tively approved testimony about the test results. In- ond Department, confirmed the distinction that will be deed, in finding no reversible error as a result of the ad- made between non-treating experts who examine the mission of the testimony, at least one court made a point plaintiff and those who do not. This case held that the of noting that the expert’s references to the out-of-court trial court “committed reversible error by allowing a tests were minimal. Moreover, in the case of both treat- plaintiff’s expert, who had not physically examined the ing and non-treating physicians, the courts continue to plaintiff, to testify as to a diagnosis . . . based, for the insist that the physicians have a basis for their opinions most part, on magnetic resonance imaging . . . films independent of the test results. which were not in evidence.”39 Citing Hambsch and Of course, an accurate diagnosis is in many cases im- Karayianakis v. L & E Grommery, the court noted that the possible without a test such as an MRI or X-ray. Thus, MRI was “not used merely to confirm the expert’s opin- even in the case of treating physicians, the insistence on ion formed out of informa- an independent basis for the tion from other sources but opinion is often little more instead was used as a basis Case law provides workable and than a fiction. In the case of for her opinion.”40 sound criteria for determining non-treating experts who Most recently, in Ferran- have made only a brief clini- tello v. St. Charles Hosp. & whether an out-of-court report cal examination, the fiction is Rehab. Ctr.,41 the court ap- even more apparent. It is in- plied the above reasoning to may serve as a basis for a voked, however, based on a non-treating medical ex- testifying physician’s opinion. the courts’ adherence to the pert’s testimony based in central tenet of People v. Sug- part on a report of an MRI den that an expert who con- and an X-ray. The court held that the admission of the siders out-of-court material must have an independent, MRI report and X-ray was harmless error, but reasoned non-hearsay basis for an opinion. that the expert was properly permitted to give his opin- Conclusion ion, as the expert had also examined the plaintiff, relied As review of the case law shows, the cases involving on other records that were properly admitted into evi- physicians’ reliance on other physicians’ reports have dence, and used the tests “primarily to confirm” his considered two issues—first, whether the testifying conclusions. physician’s opinion may be based on the out-of-court Differing Reports Compared Like reports that con- report of another physician and second, whether the tes- tain opinions on ultimate issues in the case such as per- tifying physician may testify about the contents of the manence or causation of injuries, reports of test results other physician’s report or the report itself may be ad- involve analysis of the test findings and their signifi- mitted into evidence. The cases thus distinguish be- cance and, hence, express opinions. To a far greater ex- tween the permissible basis for an opinion and the ad- tent than the opinion in reports on ultimate issues, how- missibility of the underlying data. ever, the opinion in reports of test results is directly In determining whether an out-of-court physician’s based upon data (i.e., the films) from objective tests that report constitutes a permissible basis for a testifying can readily be made available to the opponent so the 42 physician’s opinion, the courts apply the reliability ex- merits of the opinion can be evaluated. ception to the rule that expert testimony must ordinar- In giving greater latitude to testimony based on or ily be based on the facts admitted into evidence at the about test result reports, the courts are implicitly mak- trial or personally known to the expert. In applying the ing the pragmatic decision that these reports are suffi- reliability exception, the courts consider not only ciently reliable to relieve the proponent of the report whether the report is “of a kind accepted in the profes- from the burden of producing the physician who wrote sion as reliable in forming a professional opinion,”43 but the report, and to justify a limitation of the right to con- also whether the particular expert who is basing an front witnesses. opinion on the report relied on the report under circum- However, the courts have hardly wholeheartedly em- stances that show its trustworthiness. This second in- braced testimony about the reports. In the case of treat- quiry into the circumstances of the reliance explains the ing physicians, although the courts permit testimony distinction routinely made by the courts between treat- about a report of a test result, they refuse to admit the ing and non-treating experts. While the reasons for the report, thus affirming the well-settled precept that an distinction are not generally explained, it only makes

32 Journal | November/December 2001 sense if understood as shorthand for a finding that the 11. Erosa v. Rinaldi, 270 A.D.2d 384, 704 N.Y.S.2d 891 (2d treating expert used the report not merely for purposes Dep’t 2000); Flamio v. State, 132 A.D.2d 594, 517 N.Y.S.2d 756 (2d Dep’t 1987). See O’Shea v. Sarro, 106 A.D.2d 435, of giving an opinion at trial but for purposes of actually 482 N.Y.S.2d 529 (2d Dep’t 1984). providing treatment to the plaintiff, and that such re- 12. 246 A.D.2d 589, 668 N.Y.S.2d 223 (2d Dep’t 1998). liance by the treating expert on the report is probative of 13. Id. the report’s reliability. 14. 271 A.D.2d 819, 706 N.Y.S.2d 261, leave denied, 95 N.Y.2d Finally, in assessing the propriety of using an out-of- 767 (2000). court report as the basis for an opinion, the courts con- 15. Id. at 821. sider the substance of the opinion and its relation to the 16. See Richard T. Farrell, Prince, Richardson on Evidence issues in the case. Thus, even if reliable, a report may not § 4-101 (11th ed. 1995). serve as the principal basis for a testifying physician’s 17. See Borden v. Brady, 92 A.D.2d 983, 984 (3d Dep’t 1983). opinion on an ultimate issue in the case such as causa- 18. See Schwartz v. Gerson, 246 A.D.2d 589, 668 N.Y.S.2d 223 tion or permanence of the injuries. This result reflects a (2d Dep’t 1998). policy determination that the reliability of the report is 19. 151 Misc. 2d 1077, 583 N.Y.S.2d 870 (App. Term, 2d Dep’t insufficient to overcome the adversary’s interest, even in 1992). a civil case, of confronting the witnesses against it on 20. Id. at 1078. crucial issues. 21. 215 A.D.2d 643, 627 N.Y.2d 699 (2d Dep’t 1995). In summation, case law provides workable and 22. Id. at 644. sound criteria for determining whether an out-of-court 23. 237 A.D.2d 271, 654 N.Y.S.2d 395 (2d Dep’t 1997). report may serve as a basis for a testifying physician’s opinion. Unfortunately, however, the cases do not pro- 24. Id. at 272. vide equally useful guidance regarding the admissibil- 25. Id. ity of the out-of-court reports or of testimony about their 26. 278 A.D.2d 487, 718 N.Y.S.2d 78 (2d Dep’t 2000). contents. 27. 284 A.D.2d 246, 727 N.Y.S.2d 86 (1st Dep’t 2001). The next article applies existing criteria to predict the 28. Borden v. Brady, 92 A.D.2d 983 (3d Dep’t 1983). outcome on issues that commonly arise but have not 29. Brown v. County of Albany, 271 A.D.2d 819, 706 N.Y.S.2d been the subject of appellate opinion. It also makes sug- 261, leave denied, 95 N.Y.2d 767 (2000). gestions for how the courts should address, and con- 30. Hambsch v. New York City Tr. Auth., 63 N.Y.2d 723, 726, 480 sider expanding, the extent to which information is N.Y.S.2d 195 (1984). made available to jurors about the contents of the out- 31. Id. at 725. of-court reports. 32. Although the status of the testifying physician, whether treating or non-treating, does not appear from the Court of Appeals decision in Hambsch, it appears from the Ap- 1. As used in this article, the term “report” includes reports pellate Division decision (101 A.D.2d 807, 475 N.Y.S.2d made to a treating physician by a consulting physician to 467 (2d Dep’t 1984) that the case in fact involved the whom the plaintiff was referred; reports of test results; plaintiff’s family physician. and office records of treating or consulting physicians. It does not include reports made for litigation, which are 33. 141 A.D.2d 610, 529 N.Y.S.2d 358 (2d Dep’t 1988). clearly inadmissible. 34. Id. at 610-11. 2. See Wilson v. Bodian, 130 A.D.2d 221, 519 N.Y.S.2d 126 (2d 35. Id. at 611. Dep’t 1987). 36. Pegg v. Shahin, 237 A.D.2d 271, 654 N.Y.S.2d 395 (2d Dep’t 3. Cassano v. Hagstrom, 5 N.Y.2d 643, 646, 187 N.Y.S.2d 1 1997). (1959); People v. Keough, 276 N.Y. 141 (1937). 4. 35 N.Y.2d 453, 363 N.Y.S.2d 923 (1974). 37. Id. at 273. 5. As used in this article, the term “out-of-court material” 38. 254 A.D.2d 265, 678 N.Y.S.2d 118 (2d Dep’t 1998). means material that was prepared by a physician who is 39. Id. at 266. not a witness at trial and is not independently admitted 40. Id. into evidence under an exception to the hearsay rule— e.g., as a business record. 41. 275 A.D.2d 387, 712 N.Y.S.2d 615 (2d Dep’t 2000). 6. Hambsch v. New York City Tr. Auth., 63 N.Y.2d 723, 726, 480 42. See Holshek v. Stokes, 122 A.D.2d 777, 505 N.Y.S.2d 664 (2d N.Y.S.2d 195 (1984), citing Sugden, 35 N.Y.2d at 460. See Dep’t 1986). People v. Stone, 35 N.Y.2d 69, 358 N.Y.S.2d 737 (1974). 43. People v. Sugden, 35 N.Y.2d 453, 460, 363 N.Y.S.2d 923 7. 92 A.D.2d 983 (3d Dep’t 1983). (1974). 8. Id. at 984. 9. Id. 10. Id.

Journal | November/December 2001 33 Appeals Can Deal With the “Stain” Of Unpreserved Constitutional Issues If Criteria for Exception Are Met

BY PAUL GOLDEN

trange but true: the appellate process is akin to dry measure.2 The preservation rule should have limits, cleaning. The customer who uses a dry cleaner however, because it can lead to unjust results and run Smust find and point out the stains that need spe- contrary to the goal of maintaining public confidence in cial attention; the appellate attorney must find and our legal system. Courts cannot consistently rule in point out errors in the proceeding below when he ap- favor of parties based on technicalities, rather than on pears before the appellate court. fairness. Just as the cleaning process is made easier if stains are One exception to the preservation rule is that a party treated immediately, with an eye to avoiding a perma- can raise an argument for the first time on appeal if the nent mark, the trial attorney should apply the “club issue (1) is purely legal, (2) appears on the record, and soda rub” by raising a legal argument at trial, with an (3) could not have been refuted if it had been timely eye to an appeal. Ultimately, it is up to the dry cleaner raised below. This kind of unpreserved issue thus can whether the stains can be removed, based in part on the serve as a basis for removing a “stain.” For example, previous treatment, and it is the appellate court that de- when the state neglected to argue in the trial court that cides whether the error below is remediable, based in a particular statute protected it from liability to persons part on whether the issue was raised at the proper stage injured on its land, the higher court considered and ac- of the case. cepted this argument on appeal.3 Similarly, when defen- But what happens when, after filing a notice of ap- dants in the lower court failed to argue that the default peal and examining the record below, appellate counsel judgment against them was a nullity because the plain- discovers that the trial attorney had failed to raise a cru- tiff’s motion for a default judgment did not include the cial constitutional issue that should have led to a result required affidavit setting forth the facts of the claim, the in the client’s favor? Conventional wisdom is that it is appellate court considered and accepted this unpre- simply too late; the “stain” is permanent, because New served argument.4 York appellate courts consistently rule that they do not Effect of the Rule on Constitutional Issues hear such issues. This article examines the problem and Constitutional issues, of course, can also be purely provides some guidance on how attorneys can succeed, legal in nature, and they are the most serious legal is- despite this rule. sues an appellate court has to face. Nevertheless, one of The Preservation Rule in General the most permanent “stains” that can be found in a case is constitutional error. If the question of law is constitu- Appellate courts have two guidelines for determin- tional in nature but is not raised below, an appellate ing whether issues may be considered on appeal, and court will not normally review it. (For purposes of this sometimes they work against each other. The first is that article, this approach is referred to as the “constitutional parties should raise their objections at the first available opportunity in the court below. The second is that courts should uphold the integrity of the judicial system. PAUL GOLDEN is an associate at Hagan, An appellate court generally will refuse to hear any Coury & Associates, a litigation firm issue in a civil case if the proponent did not raise it at the in Brooklyn. He has conducted ap- appropriate stage before the lower court, thereby “pre- peals concerning commercial transac- serving” it for the appeal.1 Otherwise, a party might tions, real estate issues, and constitutional law. He is a graduate of New abuse the process by deliberately saving a certain argu- York University and received his J.D. ment for a higher court, thereby preventing his adver- degree from the University of Illinois. sary at the trial stage from curing the error or rendering it moot through a factual showing or a legal counter-

34 Journal | November/December 2001 preservation rule.”) For example, appellate courts have Court has never explained why it created this “unique” refused to consider the following unpreserved constitu- rule, and they even described the rule as having a “du- tional arguments: that a foreclosure sale deprived a bious basis.”14 It therefore appears odd that the Court of party of due process because of the failure to give notice Appeals cites this treatise as authority on this issue. It is of the sale,5 that a statute unconstitutionally deprived a comparable to a filmmaker advertising his movie by in- party of the common-law right to sue for a private nui- dicating that it was reviewed by a famous critic—but sance,6 or that a statute unconstitutionally distinguished neglecting to admit that it received a bad review. between defamation against a man and against a Unfortunately, by maintaining the vitality of this woman.7 rule, the Court also effectively prevents lower appellate This means that in certain cases, appellate courts af- courts from hearing unpreserved constitutional issues. firm decisions that have effectively condoned a consti- All four Departments of the Appellate Division have im- tutional violation. As one might imagine, this has posed the same rule on themselves.15 This too appears sparked some controversy. odd and illogical, for two rea- The highest court of one state sons. First, the Court of Ap- indicated that if an appellate One of the most permanent peals has expressly con- court were to affirm such a trasted its powers with those decision simply on the “pre- “stains” that can be found in a of the Appellate Division, text” that it had not been case is constitutional error. and indicated that the Appel- raised below, it “would, in ef- late Division does have the fect, nullify the Constitu- right to hear and decide un- tion.”8 The same court warned that this practice could preserved constitutional issues.16 The intermediate ap- lead to courts “open[ly] defying fundamental law.”9 Un- pellate courts’ self-imposed rule therefore is contrary to fortunately, New York appellate courts (and most other dicta from the Court of Appeals. Second, the Appellate appellate courts across the nation) have thus far ignored Division rule is odd in that it cites Court of Appeals this danger. cases in support of the rule, which in turn rely on Cohen Why are appellate courts generally willing to hear and Karger’s treatise. However, this treatise speaks only unpreserved legal issues that appear on the record, but to the power of the Court of Appeals, not the Appellate almost always refuse to consider unpreserved legal is- Division. Moreover, as indicated above, this treatise in sues that fall within the area of constitutional law? The fact criticizes the constitutional preservation rule. answer is unclear, because it is difficult to find a legiti- Another and somewhat more understandable reason mate rationale for this distinction among the decisions that appellate courts may decline to consider unpre- that have upheld it. served constitutional issues—even though it is un- In one early case, the New York Court of Appeals voiced—is that they are “bound by principles of judicial held that it would not hear a certain constitutional issue restraint not to decide constitutional questions unless 17 because the party had “waived” the right to challenge their disposition is necessary to the appeal.” In effect, the constitutionality of a law.10 Yet this reason is not this means that if a court can find a way of avoiding a fully satisfactory. Almost as an intuitive matter, it constitutional issue, it will. Courts may have developed should not be easier to waive the right to contest a law’s this judicial restraint for reasons having to do with his- constitutionality than to waive the right to raise some tory. The U.S. Supreme Court has been accused of caus- 18 lesser issue of law. In any event, more recent cases do ing the Civil War, because it issued the Dred Scott deci- not cite “waiver” as the basis for the constitutional sion—only the second time it ever held federal preservation rule. legislation unconstitutional. Since then, appellate judges Generally, the Court of Appeals does not even try to might have come to believe that they could insulate explain why it developed the rule but simply relies on a themselves from criticism by simply avoiding constitu- leading legal treatise, Powers of the New York Court of Ap- tional issues altogether. peals by Henry Cohen and Arthur Karger.11 For example, Circumventing the Constitutional it cites this treatise when holding that it is “important”12 Preservation Rule not to consider a constitutional argument unless it is At first glance, the constitutional preservation rule properly raised below, or when holding that this is the appears impossible to overcome. New York appellate “settled rule.”13 From this, one might assume that courts cite it as a blanket rule and do not generally spe- Cohen and Karger had explained the basis for this doc- cify any exceptions. Fortunately, there are a number of trine and recommended that the Court continue to up- back doors that might be available to the appellate at- hold it. They did not. Instead, they complained that the torney, some of which have been tried and some not. A

Journal | November/December 2001 35 good lawyer should at least attempt to open one or lower court’s ruling concerns the public policy of the more of them. state and directly affects third parties, it may be better to The most effective claim is simply that the constitu- stress the fact that the judgment improperly affects par- tional argument was raised below, if the claim can be ties who were unable to protect their rights in the mat- based on some aspect of the trial court record. This is ter at hand, instead of arguing constitutional law. like a customer who tells the dry cleaner that he tried If the appellate court accepts the argument that the (without success) to remove the stain when it first ap- “third party” approach forms a valid non-constitutional peared. If the trial attorney raised any argument that basis for overturning the trial court’s determination, the touched on the constitutional issue, the appellate attor- appellate attorney need not be concerned whether the ney should consider making this claim. A court may court reaches the potentially forbidden constitutional rule that the issue was raised by objection, motion, or an issue. To return to our dry cleaner, it would be similar to answer.19 However, it appears that a general objection, a customer presenting a shirt with overlapping stains, in which the court would be unable to infer that the ob- one that did not need to be properly treated ahead of jection was based on a specific constitutional ground, time, and one that did. If the customer asks the dry does not preserve the issue for appeal.20 cleaner to remove the former, there is a chance that the If it is clear that the trial attorney raised no constitu- process will remove the latter as well. tional argument, the appellate attorney may still achieve Aside from the exception based on public policy, success under certain circumstances. There is authority there is no express exception to the constitutional for the proposition that if the constitutional question preservation rule. Fortunately, courts are sometimes sufficiently involves the “public interest,” or if the issue willing to hear unpreserved constitutional issues and should be heard in the “interest of justice,” it may be simply do not call attention to their result-oriented ap- raised at any time. In Massachusetts National Bank v. proach. For example, if a judge erroneously charges a Shinn,21 the Court of Appeals held that a potential viola- jury, this creates an issue of pure law that should be tion of the New York State Constitution concerning the heard by the appellate court, regardless of whether it prohibition of a certain kind of land lease involved was preserved by a proper objection. Yet if the error “grave public policy,” and thus heard the unpreserved imbedded in the charge involved a constitutional issue, issue. the appellate court should not hear it under a strict ap- The Massachusetts National Bank rule is fair and logi- plication of the rule. Nevertheless, one appellate court cal. As noted above, appellate courts normally refuse to held that it was reversible error when the lower court in- hear unpreserved constitutional issues, and a central voked an unconstitutional statute in its charge to the reason may be waiver. However, in other legal contexts, jury, even though the trial attorney did not properly ob- courts will not give effect to waiver of a right if that ject.25 Perhaps the appellate attorney successfully used waiver would violate public policy.22 Therefore, it could the “overlapping stain” method, and simply stressed be argued that an appellate court should hear an unpre- the error in the jury charge without invoking the Con- served constitutional issue which concerns public policy stitution. because a party has no power to waive that constitu- Another case also reveals the value of the “overlap- tional issue at the trial stage. Unfortunately, the Court of ping stain” approach. If a party claims on appeal that Appeals has cited Massachusetts National Bank with re- the controlling statute is unconstitutional without first gard to this aspect of the case only once in the past 100 having raised it below, the appellate court is not likely to years, and then only to rule that the subject matter in the hear the issue. However, if the party rephrases the argu- later case was not one of public policy.23 Thus, it is diffi- ment and contends that the lower court unconstitution- cult to predict whether a particular issue involves suffi- ally interpreted the statute, the attorney may find suc- cient “public policy” considerations to justify review, cess. This is a subtle, but crucial, distinction. For and it is unclear whether any appellate court would example, in In re Jacob,26 the lower court was required to even follow Massachusetts National Bank in the 21st cen- determine if an unmarried partner of a child’s biological tury, at all. mother could become the child’s second parent by This should not dissuade an appellate attorney from means of adoption. Although the statutory language making an unpreserved public policy argument how- seemed to indicate that an unmarried partner could not ever, especially if it can be argued that the public policy do so, the appellants successfully argued to the Court of at issue directly affects identifiable third parties—i.e., Appeals that the lower court’s construction of the adop- parties who have not been named or have not appeared tion law violated the constitutional guarantee of equal in the lawsuit. The Court of Appeals has indicated that, protection. generally speaking, it will consider unpreserved argu- The dissenting judge protested that the constitutional ments that affect such third parties.24 Therefore, if the claims were raised for the first time on appeal and ar-

36 Journal | November/December 2001 gued that the Court should have been foreclosed from tion based on the equal protection clause, because the considering them. Yet the majority ruled in favor of the clause provided no foundation for this relief. As the appellants, opting for a nonrestrictive reading of the court stated, clause that avoided “constitutional doubts.” The Jacob It would be as if a litigant had obtained a monetary re- case thus provides an exciting method to avoid the con- covery against a state-owned liquor store based on the stitutional preservation rule. Eighteenth Amendment to the United States Constitu- In a rare circumstance, one can be guaranteed a re- tion, and on appeal the court was required to affirm the view of an unpreserved constitutional argument if the judgment because the liquor store’s attorney had for- gotten to mention that, oh by the way, the Eighteenth U.S. Supreme Court directs a lower appellate court to do 29 so. In Childs v. Childs,27 the Appellate Division refused to Amendment had been repealed a half-century earlier. hear the appellant’s unpreserved argument that a Although New York appellate courts are not likely to statute violated the equal protection clause, in that the overturn the constitutional preservation rule as a whole statute permitted a court to grant counsel fees in divorce in the near future, the courts might be convinced not to actions only to wives, and never to husbands. The Court apply it blindly in all cases. It is worth noting that in of Appeals dismissed the appeal. However, the appel- many cases citing the rule, courts take pains to explain lant filed a petition for certiorari to the U.S. Supreme that even if they were to reach the constitutional argu- Court. The high Court struck down a similar Alabama ment, they would reject it;30 a dry cleaner who does not statute, and two weeks later vacated the previous order believe that a mark on clothing is really a stain in the of the Appellate Division, remanding the case for fur- first place would not be interested in discussing ther consideration. The Appellate Division then, for the whether the stain could be removed. In any event, the first time, considered the statute’s constitutionality be- courts’ dicta seem to indicate that they are unwilling to cause of the “gravity of the issue,” despite the fact that simply ignore constitutional issues solely on the basis of the appellant had not raised the issue at trial. the constitutional preservation rule. For that reason, a This leads to yet another New York appellate court approach that might be taken In a rare circumstance, might be convinced that it by the appellate attorney. Al- should not interpret the rule though New York cases pro- one can be guaranteed so stringently as to allow an vide minimal guidance for a review of an unpreserved obvious constitutional flaw the attorney seeking to avoid to go uncorrected, and that it the constitutional preserva- constitutional argument if should follow guidelines pro- tion rule, one can look to vided by the courts of certain other states’ case law on the the U.S. Supreme Court directs other states. issue. For example, an appel- a lower appellate court to do so. For example, New York late court would probably appellate courts refuse to re- not want to uphold a case in view unpreserved constitu- which the plaintiff succeeded on a constitutional claim tional challenges to statutes.31 However, if an appellate that had no basis in law, even if the issue had not been court were faced with a statute that was facially uncon- preserved. Although a case with this holding apparently stitutional, the appellate attorney should at least at- has not been decided in New York, a New York appel- tempt to convince the court to follow the logic adopted late court has applied similar logic in a non-constitu- in certain other jurisdictions. In several states, a consti- tional context. It ruled that a party had no right to main- tutional challenge to a statute can be raised for the first tain its action to set aside a certain kind of fraudulent time on appeal, if its unconstitutionality is obvious and transfer, even though this issue had been unpreserved.28 apparent.32 And at least one state, Wyoming, has a lesser The court stated that it could not ignore the issue, be- standard, and apparently will review a statute’s consti- cause it “might become a misleading precedent.” A New tutionality even if its unconstitutionality is not so obvi- York appellate tribunal therefore might be ready to ous: “The constitutionality of a statute is fundamental in apply similar reasoning in a case involving a constitu- nature, and, therefore, we may address that issue de- tional issue. spite it not being properly raised below.”33 Perhaps the In California, an appellate court has already em- breakthrough in New York on the constitutional preser- ployed such reasoning. There, as here, the courts gener- vation rule will come on the review of a poorly con- ally do not hear constitutional issues raised for the first ceived piece of legislation. time on appeal. Nevertheless, a California appellate Conclusion court considered one such unpreserved issue, ruling Given the importance of constitutional arguments to that it could not allow recovery for a certain cause of ac- litigation of almost any type and description, there is

Journal | November/December 2001 37 need for hope that New York appellate courts will con- 16. In re Barbara C., 64 N.Y.2d 866, 868, 487 N.Y.S.2d 549 sider bending the technical rules on preservation when (1985); Di Chiaro v. New York City Police Prop. Clerk, 32 N.Y.2d 767, 768, 344 N.Y.S.2d 956 (1973). it is necessary. Appellate judges may simply be waiting 17. Clara C. v. William L., 96 N.Y.2d 244, 250, 727 N.Y.S.2d 20 for the right case, and the right kind of argument, to re- (2001) (citation and internal quotation marks omitted). move the worst kind of “stain.” 18. Dred Scott v. Sandford, 19 How. 531 (1857). 19. See Housing & Dev. Admin. v. Community Hous. Improve- 1. See, e.g., McMillan v. State, 72 N.Y.2d 871, 872, 532 ment Program, Inc., 83 Misc. 2d 977, 980, 374 N.Y.S.2d 520 N.Y.S.2d 355 (1988); see also Cooper v. City of New York, 81 (Civ. Ct., Kings Co. 1975), modified, 90 Misc. 2d 813, 396 N.Y.2d 584, 588, 601 N.Y.S.2d 432 (1993). N.Y.S.2d 125, aff’d, 59 A.D.2d 773, 398 N.Y.S.2d 997 (2d Dep’t 1977). 2. See Telaro v. Telaro, 25 N.Y.2d 433, 439, 306 N.Y.S.2d 920 20. See Gonzalez v. State Liquor Auth., 30 N.Y.2d 108, 112-13, (1969). 331 N.Y.S.2d 6 (1972). 3. Sega v. State of New York, 60 N.Y.2d 183, 190, n.2, 469 21. 163 N.Y. 360 (1900). N.Y.S.2d 51 (1983). 22. Summit Sch. v. Neugent, 82 A.D.2d 463, 468, 442 N.Y.S.2d 4. Hann v. Morrison, 247 A.D.2d 706, 708, 668 N.Y.S.2d 764 73 (2d Dep’t 1981). (3d Dep’t 1998). 23. Park of Edgewater, Inc. v. Joy, 50 N.Y.2d 946, 948-49, 431 5. Melahn v. Hearn, 60 N.Y.2d 944, 945, 471 N.Y.S.2d 47 N.Y.S.2d 457 (1980). (1983). 24. Johnson Newspaper Corp. v. Stainkamp, 61 N.Y.2d 958, 960- 6. Pure Air & Water, Inc. v. Davidsen, 246 A.D.2d 786, 787, 668 61, 475 N.Y.S.2d 272 (1984). N.Y.S.2d 248 (3d Dep’t 1998). 25. Carroll v. Harris, 23 A.D.2d 582, 583, 256 N.Y.S.2d 715 (2d 7. Matherson v. Marchello, 100 A.D.2d 233, 241, n.4, 473 Dep’t 1965). N.Y.S.2d 998 (2d Dep’t 1984). 26. 86 N.Y.2d 651, 636 N.Y.S.2d 716 (1995). 8. City of Ralston v. Balka, 530 N.W.2d 594, 599 (Neb. 1995) 27. 69 A.D.2d 406, 419 N.Y.S.2d 533 (2d Dep’t 1979). (citation omitted). 28. Magoun v. Quigley, 115 A.D. 226, 100 N.Y.S. 1037 (1st 9. Id. Dep’t 1906). 10. Vose v. Cockcroft, 44 N.Y. 415, 424 (1871). 29. Bonner v. City of Santa Ana, 53 Cal. Rptr. 2d 671, 679 (4th 11. Henry Cohen & Arthur Karger, Powers of the New York Dist. 1996). Court of Appeals (rev. ed. 1952). 30. Liquidation of Transit Cas. Co v. Digirol, 223 A.D.2d 488, 636 N.Y.S.2d 791 (1st Dep’t 1996); Burkins v. Scully, 108 12. Wein v. Levitt, 42 N.Y.2d 300, 306, 397 N.Y.S.2d 758 (1977). A.D.2d 743, 744, 485 N.Y.S.2d 89 (2d Dep’t 1985); Mather- 13. Di Bella v. Di Bella, 47 N.Y.2d 828, 829, 418 N.Y.S.2d 577 son v. Marchello, 100 A.D.2d 233, 241, n. 4, 473 N.Y.S.2d (1979). 998 (2d Dep’t 1984). 14. Cohen & Karger, supra note 11, § 169, at 641-43. 31. Pure Air & Water, Inc. v. Davidsen, 246 A.D.2d 786, 787, 668 15. Liquidation of Transit Cas. Co v. Digirol, 223 A.D.2d 488, 636 N.Y.S.2d 248 (3d Dep’t 1998); Teachers’ Retirement Sys. v. N.Y.S.2d 791 (1st Dep’t 1996); Dowsett v. Dowsett, 172 Welch, 244 A.D.2d 231, 232, 664 N.Y.S.2d 38 (1st Dep’t A.D.2d 610, 570 N.Y.S.2d 950 (2d Dep’t 1991); see Pure Air 1997); Matherson, 100 A.D.2d at 241, n. 4. & Water, Inc. v. Davidsen, 246 A.D.2d 786, 787, 668 32. Smith v. Costello, 861 S.W.2d 56, 58 (Tex. 1993); Lawrence v. N.Y.S.2d 248 (3d Dep’t 1998); In re Michael Anthony F., 177 Stanford, 655 S.W.2d 927, 929 (Tenn. 1983). A.D.2d 1031, 1031, 578 N.Y.S.2d 316 (4th Dep’t 1991). 33. Bredthauer v. TSP, 864 P.2d 442, 447 (Wyo. 1993).

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38 Journal | November/December 2001 Writing Clinic So Just What Is Your Style?

BY SUSAN MCCLOSKEY

very day, we’re reminded that clothing is a robust The Style of Your Paragraphs form of self-expression. When we see a young man 1. What is the average length of your paragraphs? Divide Ewith dyed orange hair, multiple nose studs, and the total number of sentences in your sample by the number raveled jeans, we know that he is saying something of paragraphs to determine the average. about himself that a man dressed in pin stripes and Once you’ve established the baseline length of your French cuffs would never consider saying. paragraphs (five sentences is fairly typical), take a look Like a tattoo or a string of pearls, the words we at the longest paragraph in your sample. Is it signifi- choose and the way we arrange them on the page tell cantly above the average length? Is its length justified our readers a great deal about who we are, how we by the point you’re developing? Bear in mind that read- think, and what we value. As a legal writer, you are ers’ hearts often sink when they confront a long, unbro- probably reminded of this fact less often than other pro- ken block of text. Check the paragraph to see if it can be fessional writers are. The circumstances of your work divided into smaller units. seldom permit the ongoing conversation about style Then look at the shortest paragraph in your sample. that journalists, fiction writers, and scholars routinely If it’s made up of only a sentence or two, make sure that conduct with their editors. You’re often left to develop you’ve fully developed your point. If you have, then de- your style by guess and by golly, testing the effective- cide whether the paragraph merits the emphasis that ness of one device over another under the pressure of brevity bestows. Remember that a single-sentence para- deadlines and the requirements of courts, colleagues, graph is a piece of heavy stylistic artillery that is most and clients. Without much opportunity for choice or re- effective when seldom used. flection, experimentation or feedback, you realize one 2. How many of these paragraphs begin with a sentence day that you have a style but are hard-pressed to say that accurately indicates the paragraph’s focus? what it is. Caught up in your argument or analysis, you may The questions that follow give you a chance to iden- sometimes omit the topic sentence, which alerts the tify the elements of your style, to make yourself con- reader to the paragraph’s focus. Be especially critical of scious of the way you typically express your thoughts. any paragraph that opens with a quotation or a refer- What you discover may delight you or send you search- ence to a case. Almost always, such a paragraph needs a ing for your college copy of Strunk & White. But it will new opening sentence that tells the reader why the quo- certainly redirect your attention from what you’ve writ- tation or case merits notice. Remember also that judicial ten to the nuts-and-bolts details of how you’ve written it. readers often refresh their memories about the content In reflecting on your answers, you may decide that your of documents by rereading the topic sentences of each present style is perfectly suited to your ends. Or you paragraph. Your job is to make sure these sentences re- may see that you’ve developed some stylistic tics that veal the scaffolding of your argument. you and your readers would do better without.

Read all of the questions to orient yourself, then se- SUSAN MCCLOSKEY is the president of lect a 500-word passage of your writing that accurately McCloskey Writing Consultants in reflects your style at its best. Look for a passage made Verbank, N.Y. She provides writing up of at least a few paragraphs and only a few quota- and editorial services and writing tions and citations. Answer the questions in whatever seminars to law firms and law depart- order you wish, but aim to answer them all, even if you ments nationwide. She received her can devote only scattered moments to the work. The few Ph.D. from Princeton University and questions that involve word counts and calculations of was a tenured professor of English lit- averages are tedious, but your answers will reveal the erature at Vassar College. Her Web site is at www.susanmccloskey.com; she may be reached at bedrock of your style. The commentary after each ques- [email protected]. tion will help you interpret what you discover.

Journal | November/December 2001 39 3. Do you use transitions to express the relationship be- dashes, interspersed citations, and parenthetical asides. tween one sentence and the next in a paragraph? A good rule of thumb in revision is to reevaluate any In a well-written paragraph, the implicit logical con- sentence over about two-and-a-half lines. It probably nections among sentences may by themselves under- contains a natural dividing point, most often at a con- score the coherence of your junction. If the sentence is point. But sometimes it’s nec- perfectly clear, you may not essary to make the connec- A mix of sentence lengths—long, need to break it up; a long tions explicit. Legal writers short, and in between—gives a sentence now and then con- overwhelmingly use con- tributes to the rhythm and junctive adverbs and prepo- passage its rhythm and aids the variety a good writer aims sitional phrases as a para- reader in attending to your points. for. But no reader can take in graph’s glue, opening a massive sentence on a sin- sentence after sentence with gle reading, and a single Furthermore or In addition. Consider trading in these old reading is all a writer is entitled to expect. stand-bys for transitions with a little more pizzazz, such After a few longer sentences, readers come upon a as coordinate conjunctions (e.g., and, but), demonstrative short one with relief. If you’re inclined to write mostly adjectives (e.g., this, those), personal pronouns (e.g., he, long sentences, be sure to provide this relief, especially they), consistent grammatical subjects, and repeated when you want to emphasize a point. Short sentences words or phrases. are especially effective at the beginnings and ends of 4. Do you use transitions to show your reader how the paragraphs. paragraphs are related to each other? 6. Are all of your sentences declarative? Does your sam- Readers rely on you to indicate how a new paragraph ple contain any questions, commands, or exclamations? relates to the one preceding it, especially when you’re Most sentences in any legal document are properly presenting a complex analysis or argument. The transi- declarative, filled with statements about the facts and tional devices mentioned in Question 3 work between the law. But it’s a good idea to vary the succession of de- paragraphs as well as within them. Sometimes the usual clarative sentences now and then, especially when you transitional words or phrases do the job handsomely. wish to emphasize a point. Exclamations are fairly rare Sometimes you can open a new paragraph by referring in legal writing—even when they’re warranted! But to the preceding paragraph’s point (As this long history of rhetorical questions and commands, if seldom used, can tax delinquency makes plain . . .) or by repeating a word or be quite powerful: Do American citizens expect their gov- phrase from the previous paragraph’s final sentence. ernment to eavesdrop on their telephone conversations? Or, Variety of transition is a hallmark of good style. Imagine the circumstances of an employee long subjected to The Style of Your Sentences her supervisor’s discriminatory practices. When you’re re- vising, look for opportunities to call attention to a point 5. What is the average length of your sentences? Divide by rephrasing a declaration as a question or command. the total number of words in your sample by the number of sentences to determine the average. How many sentences are 7. How do your sentences characteristically open? more than ten words above the average? How many are more Most sentences open with their grammatical subject: than five words below? Consolidated presents this motion for partial summary judg- A mix of sentence lengths—long, short, and in be- ment. But a string of sentences following this pattern tween—gives a passage its rhythm and aids the reader quickly becomes monotonous. Legal writers sometimes in attending to your points. Variety of sentence length vary their openings by using an initial adverb (e.g., usually indicates that you’re also employing a variety of Therefore, First), adjective (Untimely but unrepentant, the sentence types. Shorter sentences tend to be simple (with claimant . . .), prepositional phrase (On May 12th or a single subject-verb pair). Longer sentences tend to be After the decision by the trial court), or subordinate clause complex (with an independent clause and one or more (When the judge denied the motion . . . ). Used seldom, ex- subordinate clauses), compound (with two or more in- pletive constructions (e.g., It appears that or There are) and dependent clauses), or compound-complex (a some- coordinating conjunctions (e.g., And, But, Or, For, Yet, So) times unwieldy combination of multiple independent can join the mix. Your aim is to keep your reader read- clauses and subordinate clauses). A variety of sentence ing attentively. You can achieve that aim by creating an length and type is an aspect of good style. interestingly varied texture of sentence patterns. If you find that your longest sentences are more than 8. In how many of your sentences is the subject right next ten words above the average, be careful. Legal writers to the verb? are justly notorious for single sentences that sprawl No matter how you open the sentence, you can en- across a page in a riot of ands and buts, semicolons, hance its clarity simply by keeping the subject and verb

40 Journal | November/December 2001 together. Notice the wide gap between subject and verb 10. How many of the substantive words in your sample— in this sentence: Defendant, having resisted our requests for that is, everything except articles, prepositions, and conjunc- discovery until the court ordered its compliance, having then tions—are words of one or two syllables? How many are produced partial responses or none at all, having sought the words of more than two syllables? shelter of the attorney-client privilege for matters of public A vigorous style relies whenever possible on words record, and having prolonged these proceedings beyond the descended from native English, rather than imported limits of human patience, drags its feet yet again by seeking a Latin, stock. You can tell one from the other by a simple, continuance. The sentence is easier to take in (and its au- fairly reliable, test: Anglo-Saxon derivatives tend to be thor’s exasperation no less apparent) when the litany of short, usually one or two syllables; nouns name tangible the defendant’s bad behavior precedes or follows a re- things. Latin derivatives tend to be many syllables; united subject and verb: The defendant drags its feet yet nouns name abstractions. So if you find your prose again by seeking a continuance. filled with Latinate words, such as initiate, demonstrate, vehicle, and compensation, restore its energy by substitut- The Style of Your Words ing English words—in this case, start, show, car, and 9. What percentage of the words in your sample are nouns wage. and verbs? Count the number of each. Tally as a single verb even 11. How many of your verbs are in the active voice? How those composed of multiple parts—e.g., will have been many are passive? How many are linking verbs? waiting, had petitioned, was seeking. Divide the number of A verb is in the active voice when its subject performs nouns and verbs by the total number of words in your the verb’s action: Smith sued Jones for breach of contract. sample to determine the percentage. If you want an Here, Smith is the subject, and he did the suing. A verb even finer sense of your style, cancel the articles (a, an, is in the passive voice when the subject does not per- the), prepositions (e.g., in, over, under, around, through), form the verb’s action: Jones was sued by Smith for breach and conjunctions (e.g., and, but, or, so, yet) from the total of contract. Here, Jones is the subject, but he did not do and use that figure as the divider. the suing. Smith did, but he’s been demoted from the If the percentage of nouns and verbs is high, your subject to the mere object of a preposition. Reserve pas- style makes good use of the parts of speech essential to sive verbs for circumstances in which you do not know meaning. Well-chosen nouns and verbs make it possible who acted, the actor is irrelevant, or you wish to be to prune adjectives and adverbs and give your style pre- diplomatic. (Mistakes were made is famously more face- cision and economy. This sentence needs such pruning: saving than My client messed up.) Multiple requests uniformly directed toward the question of The verb is the most important word in a sentence, how defendant company made its determination on the mat- and a good writer makes the most of it, preferring active ter of plaintiff’s entitlement to benefits are plainly objection- verbs to passive and linking ones. Active verbs tend to able on the ground of relevancy to the matter at hand. With be brief and vivid: stop, go, begin, end; by contrast, pas- greater precision of noun and verb, it can be briefly re- sive verbs need two or more words for their formation: fashioned: On the ground of relevancy, we object to requests was stopped, had been going, will have been begun, is being about how the defendant determined the plaintiff’s entitle- ended. Because active verbs require a writer to specify an ment to benefits. actor for the verb’s action, they avoid baffling state- If the percentage of nouns and verbs is low, take a ments such as A motion was made. Who made it? The closer look at a few sentences to see if you can reduce plaintiff? The defendant? Passive verbs prompt such the number of adjectives and adverbs by choosing more questions; active verbs answer them: Plaintiff moved the precise nouns and verbs. court for a temporary injunction. Another way to boost your reliance on nouns and Linking verbs (most often, forms of the verb to be) are verbs is to reduce the number of prepositional phrases useful, indeed indispensable. They are also boring. Your in a sentence. Legal prose is often marred by the writer’s style will be stronger if you change the weak is in A tendency to construct sentences out of one prepositional judge is an interpreter of the law to the strong and active A phrase after another: Our examination of the material in- judge interprets the law. cluded a review of the accuracy of selected 1999 billings by 12. How many Latin words or phrases appear in your the company and an evaluation of procedures employed by sample? How many words or phrases qualify as “legalese”? the company in the selection of its appraisers. A revision re- A good legal stylist restricts the use of Latin to recog- lying on verbs and nouns to do the sentence’s work can nized terms of art, such as habeas corpus or prima facie. easily reduce eight prepositional phrases to two: We Commonly used words and phrases, such as inter alia or checked the accuracy of selected 1999 billings and evaluated arguendo, don’t belong in that category and have per- the company’s procedures for selecting appraisers. fectly serviceable English equivalents (among other

Journal | November/December 2001 41 things and for the sake of argument, respectively). The best in the sentence that introduces it: The court held that in legal prose follows a simple guideline: When you can imposing punitive damages, the jury acts in a quasi-judicial express your thought in common English words, do. capacity. Clients and courts have united to protest the legalese 15. Does your passage contain any figures of speech? that makes a 21st century lawyer sound like a Victorian- Lawyers often insist that figurative language is risky, era scrivener. Most legal writers now feel a prick of con- no matter how striking or memorable it may be. It’s cer- science when they resort to such language and have tainly the case that a legal document is an unlikely place banished aforementioned, the undersigned, pursuant to, and for irony, humor, or droll understatement. A reader not other such fiddle-faddle. Some forms of legalese have expecting such rhetorical flourishes may misinterpret resisted these outcries, but should still be avoided, in- them, causing more problems than any neat turn of cluding said, such, and same, the use of within as an ad- phrase is likely to solve. jective (the within property), and all members of the here- But caution need not banish all the pleasures of lan- family (hereinabove, hereinbelow, heretofore, hereinafter, guage well used. When you have a point you especially etc.). wish to emphasize, express it vividly, using all the re- A Few Odds and Ends sources of language. When Justice Marshall wished to oppose discrimination on the basis of gender, he did not 13. Is the opening sentence of your sample a bit of legal content himself with abstraction and generality. Instead boilerplate (e.g., Comes now, Such-and-such, to petition this he wrote, A sign that says “men only” looks very different on esteemed Court for so-and-so)? Or is it genuinely interest- a bathroom door than a courthouse door.1 In everything you ing—the kind of sentence that encourages a reader to keep write, aim to craft one well-turned sentence. The effort reading? will hone your skill, give you satisfaction, and delight Journalists have long known that a reader’s interest your readers. diminishes as the column-inches increase. That’s why good journalists pack into the opening sentence or para- Creating a Profile graph the kinds of information that readers read to get. When you’ve finished answering the questions, cre- By contrast, legal writers have conditioned their ate a profile of yourself as a writer. If you’ve discovered, readers to skim boilerplate openings and hope that by for instance, that you tend to write long paragraphs, paragraph two or three the writer will have gotten to the long sentences, and long words; that your verbs are usu- point. Why make your reader wait? A brief that begins ally passive; that you rely on adjectives and adverbs in- with an assertion such as This is a case of fraud is likely to stead of strong nouns and verbs; and that you’ve make even a jaded reader sit up straight and read with searched your sample in vain for a single neatly turned interest. Opening sentences and paragraphs deserve the phrase, then reassess the effect of your style on those best, most engaging writing a writer can muster. While who read it. You can make your documents more effec- it’s true that most consumers of legal prose are captive tive and your readers happier to read them by giving audiences, obliged by their job descriptions to read your prose greater variety. whatever a lawyer submits, there’s no reason to treat If you’ve discovered that your diction and sentence captives badly. An engaging opening is the harbinger of structures are admirably varied, but that your para- good things to come. graphs lack strong introductions, internal cohesion, and helpful transitions, focus on developing them with 14. Does your passage contain quotations? Have you greater care and skill. quoted only what you need to quote to support your point? And if you’ve found that every aspect of your prose Have you introduced the quotation in an effective way? passes muster, congratulate yourself—and then raise Most readers of legal documents admit that when a the bar a notch or two. block quotation presents itself, so does the temptation to If you’re serious about developing your style, con- skip it altogether. Given this fact of human nature, a sider completing this questionnaire annually. Doing so careful legal writer follows these three guidelines: will remind you that your style is not simply a happy or First, quote only when you or your reader needs the unhappy accident, something that happens to you when authority you’re quoting. Second, quote only the parts you sit down to write. Instead, you can make and re- of the passage that genuinely serve your point. When make your style, dismantle and make it again. By show- you use ellipses or asterisks to trim a passage to its ing you what your style consists of, these questions will essence, make sure you don’t also skew its meaning. help you decide how the making should go. Third, write a lead-in that will preserve the quotation’s point even if a reader skips the passage. The court held is 1. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, never a good lead-in. Distill the essence of the quotation 468-69 (1985).

42 Journal | November/December 2001 Index to Authors—1999-2001 The following index lists the authors of all articles that have appeared in the Journal since the January 1999 edition. Below each author’s name is the general classification category used for the article. The headline describing the content of the article appears under that classification category in the Index to Articles that begins on page 48.

Adams, Martin B. Calabrese, Alex Legal Profession ...... March 1999 ...... 46 Arbitration/ADR ...... June 2000...... 14 Aman, John J. Carlinsky, Michael B. Family Law...... January 2000...... 12 Covenants Not to Andrews, Ross P. Compete ...... February 1999...... 29 Employment Law...... Sept. / Oct. 1999 ...... 8 Carr, Francis T. Angione, Howard Intellectual Property ...... January 2001...... 58 Torts and Negligence...... April 1999 ...... 7 Cavanagh, Edward D. Bandler, Brian C. Antitrust Law...... January 2000...... 38 Bankruptcy ...... July / August 2000 ...28 Evidence ...... July / August 1999 .....9 Bauchner, Joshua S. Cherubin, David M. Civil Procedure...... March / April 2000...26 Civil Procedure...... November 1999...... 24 Barnosky, John J. Cilenti, Maria Estate Planning...... December 1999...... 8 Employment Law...... Nov. / Dec. 2001...... 10 Bellacosa, Joseph W. Clauss, William History in the Law ...... October 2000...... 5 Criminal Law ...... June 2000...... 35 Bennett, Steven C. Coffey, James J. Legal Writing ...... February 2000...... 48 Legal and Medical Malpractice...... May / June 1999 ...... 47 Berlin, Sharon N. Tort Law...... March / April 2001.....8 Employment Law...... Sept. / Oct. 1999 ...... 43 Cohen, Daniel A. Bergman, Bruce J. Evidence ...... September 2000...... 43 Mortgages and Liens ...... July / August 2001 ...19 Cohen-Gallet, Bonnie Berman, Greg Criminal Law ...... January 1999...... 40 Courts...... June 2000...... 8 Cole, Ann H. Bernak, Elliot D. Trial Practice...... September 2000...... 39 Employment Law...... Sept. / Oct. 1999 ...... 36 Cooper, Ilene Sherwyn Bernstein, Michael I. Trust and Estate Law ...... July / August 1999 ...34 Lawyer’s Bookshelf...... March / April 2000...51 Craco, Louis A. Block, Gertrude Legal Profession ...... January 2001...... 23 Language Tips...... January 1999 through December 2000, Crane, Stephen G. inclusive Civil Procedure...... May 2000...... 36 Language Tips...... February 2001 Crick, Anne Language Tips...... March / April 2001 Family Law...... May 2001...... 41 Language Tips...... June 2001 Crotty, John M. Language Tips...... July / August 2001 Employment Law...... Sept. / Oct. 1999 ...... 74 Language Tips...... October 2001 Language Tips...... Nov. / Dec. 2001 Curran, Paul J. Criminal Law ...... January 1999...... 23 Boehm, David O. History in the Law ...... October 2001...... 33 Dachs, Jonathan A. Lawyer’s Bookshelf...... June 2000...... 51 Insurance Law ...... May / June 1999 ...... 8 Legal Writing ...... November 1999...... 52 Insurance Law ...... July / August 2000 ...18 Insurance Law ...... September 2001...... 26 Brodsky, Stephen L. Contract Law...... March / April 2001...16 Davis, Wendy B. Legal Writing ...... January 2000...... 50

Journal | November/December 2001 43 DiBlasi, John P. Gershman, Bennett L. Trial Practice...... October 2001...... 27 Discrimination ...... March / April 2000...42 Di Lorenzo, Vincent Judiciary...... October 2001...... 36 Banking/Finance Law...... October 2000...... 36 Gesualdi, James F. Disner, Eliot G. Lawyer’s Bookshelf...... September 2000...... 54 International Law...... March / April 2000...35 Gillespie, S. Hazard Donahoe, Diana Roberto Women in Law...... January 2001...... 43 Legal Writing ...... March / April 2000...46 Gold, Elayne G. Dunham, Andrea Atsuko Employment Law...... Sept. / Oct. 1999 ...... 70 Poetry ...... January 2000...... 53 Golden, Paul Dunn, Ronald G. Business Law ...... May 2001...... 20 Employment Law...... Sept. / Oct. 1999 ...... 70 Constitutional Law ...... Nov. / Dec. 2001...... 34 Effinger, Montgomery Lee Goodman, Norman Torts and Negligence...... June 2000...... 41 Juries...... June 2001...... 32 Emery, Bob Grall, John G. Lawyer’s Bookshelf...... January 1999...... 49 Estate Planning...... December 1999...... 16 Fidell, Eugene R. Gregory, David L. Government and the Law...February 2001...... 44 Covenants Not to Compete ...... October 2000...... 27 Fields, Marjory D. Criminal Law ...... February 2001...... 18 Gutekunst, Claire P. Family Law...... June 2000...... 20 Juries...... June 2001...... 35 Fisher, Steven W. Hall, L. Priscilla Juries...... June 2001...... 29 Point of View...... Nov. / Dec. 2000...... 38 Fiske, Jr., Robert B. Halligan, Rosemary Lawyer’s Bookshelf...... March 1999 ...... 56 Employment Law...... Sept. / Oct. 1999 ...... 51 Fitzgerald, Brian P. Hancock, Jr., Stewart F. Juries...... November 1999...... 32 Trial Practice...... January 2001...... 35 Forte, Joseph Philip Hansen, Lorentz W. Mortgages and Liens ...... July /August 2001....34 Tax Law...... October 2001...... 44 Freidman, Gary Holly, Wayne D. Professional Bankruptcy ...... March 1999 ...... 38 Responsibility ...... Nov. / Dec. 2001...... 22 Ethics and the Law...... January 2000...... 26 Friedman, Marcy S. Jalbert, Joseph R. Evidence ...... Nov. / Dec. 2001...... 28 Evidence ...... Nov. / Dec. 2000...... 24 Frumkin, William D. Joseph, Gregory P. Employment Law...... Sept. / Oct. 1999 ...... 36 Juries...... June 2001...... 14 Gaal, John Kassoff, Mitchell J. Employment Law...... Sept. / Oct. 1999 ...... 61 Business Law ...... February 2001...... 48 Gaber, Mohamed K. Katzman, Gerald H. Tort Law...... March / April 2001.....8 Courts...... November 1999...... 10 Gallagher, Stephen P. Kaye, Judith S. Law Practice...... June 2000...... 24 Juries...... June 2001...... 8 Legal Profession ...... September 2000...... 50 Gerges, Hon. Abraham G. Lawyer’s Bookshelf...... July / August 1999 ...50 Kirgis, Paul Frederic Point of View...... March 1999 ...... 52 Evidence ...... February 2000...... 30 Lawyer’s Bookshelf...... May 2000...... 50 Gerhart, Eugene C. Lawyer’s Bookshelf...... February 2000...... 59 Klein, Eve I. Legal Profession ...... Nov. / Dec. 2000...... 42 Employment Law...... Sept. / Oct. 1999 ...... 51 Employment Law...... Nov. / Dec. 2001...... 10

44 Journal | November/December 2001 Knipps, Susan K. Mahler, Peter A. Courts...... June 2000...... 8 Commercial Law ...... July / August 1999 ...21 Korgie, Tammy S. Corporation Law ...... May / June 1999 ...... 28 Legal Education...... March / April 2000...11 Corporation Law ...... July / August 2001 ...10 Legal Profession ...... May 2001...... 5 Maier, Philip L. Krass, Stephen J. Employment Law...... May / June 1999 ...... 41 Estate Planning...... December 1999...... 29 Manz, William H. Krieger, Laura M. Computers and the Law .....Nov. / Dec. 2000...... 26 Covenants Not to Marbot, Karen L. Compete ...... February 1999...... 29 Courts...... November 1999...... 10 La Manna, Judith A. Mark, Dana L. Arbitration/ADR ...... May 2001...... 10 Estate Planning...... December 1999...... 43 Lawyer’s Bookshelf...... June 2000...... 52 Estate Tax Law...... September 2001...... 37 Science and Technology ...... September 2000...... 8 Marks, Patricia D. Lang, Robert D. Juries...... June 2001...... 40 Lawyer’s Bookshelf...... February 2001...... 57 Maroko, Richard A. Torts and Negligence...... July / August 2000 ...10 Employment Law...... Sept. / Oct. 1999 ...... 8 Lauricella, Peter A. Marrow, Paul Bennett Civil Procedure...... November 1999...... 24 Contract Law...... February 2000...... 18 Lazer, Leon D. Privileges ...... March 1999 ...... 26 Juries...... June 2001...... 37 Marrus, Alan D. Lebovits, Gerald Judiciary...... July / August 2000 ...42 Arbitration/ADR ...... January 1999...... 28 Martins, Cristine S. Family Law...... May 2001...... 41 Law Practice...... October 2001...... 21 Legal Writing ...... July / August 2001 .....8 Legal Writing ...... September 2001...... 64 Martins, Sophia J. Legal Writing ...... October 2001...... 64 Law Practice...... October 2001...... 21 Legal Writing ...... Nov. / Dec. 2001...... 64 Massaro, Dominick R. Leeds, Matthew J. History in the Law ...... January 2000...... 44 Contract Law...... July / August 2001 ...43 McAloon, Paul F. Leinheardt, Wallace L. Humor...... March / April 2001...64 Trust and Estate Law ...... October 2001...... 8 McCloskey, Susan Leshner, Alan I. Legal Writing ...... November 1999...... 47 Point of View...... September 2000...... 53 Legal Writing ...... Nov. / Dec. 2000...... 31 Legal Writing ...... Nov. / Dec. 2001...... 39 Leven, David C. Criminal Law ...... January 1999...... 23 McGuinness, J. Michael Constitutional Law ...... February 2000...... 36 Liotti, Thomas F. Criminal Law ...... September 2000...... 17 Trial Practice...... September 2000...... 39 McQuillan, Peter J. Little, Elizabeth E. Criminal Law ...... January 2001...... 16 Mortgages and Liens ...... March / April 2001...44 Meade, Jr., Robert C., Littleton, Robert W. Civil Procedure...... May 2000...... 36 Evidence ...... July / August 1999 .....8 Michaels, Philip J. Lurie, Alvin D. Tax Techniques...... October 2001...... 52 ERISA ...... May 2000...... 44 Miller, Frederick Lustbader, Brian G. Point of View...... February 2001...... 53 Mortgages and Liens ...... July /August 2001....51 Miller, Henry G. Maccaro, James A. Torts and Negligence...... January 2001...... 26 Helpful Practice Hints ...... May 2000...... 54 Trial Practice...... September 2001...... 8 Magavern, James L. Government and the Law...January 2001...... 52

Journal | November/December 2001 45 Modica, Steven V. Peck, Dana D. Helpful Practice Hints ...... May / June 1999 ...... 52 Legal and Medical Monachino, Benedict J. Malpractice...... May / June 1999 ...... 47 Environmental Law ...... May 2000...... 22 Peckham, Eugene E. Mone, Jennifer M. Estate Planning...... December 1999...... 37 Arbitration/ADR ...... September 2000...... 35 Estate Tax Law...... September 2000...... 30 Tax Law...... October 2001...... 41 Mone, Mary C. Tax Techniques...... February 2000...... 52 Juries...... June 2001...... 47 Pfau, Hon. Ann Moore, James C. Professional Lawyer’s Bookshelf...... March / April 2000...50 Responsibility ...... January 1999...... 8 Lawyer’s Bookshelf...... March / April 2001...52 Pinzel, Frank B. Morken, John R. Landlord / Tenant Law...... March 1999 ...... 50 Estate Planning...... December 1999...... 8 Professional Rachlin, Marvin Responsibility ...... Nov. / Dec. 2001...... 22 Elder Law ...... February 2001...... 32 Mount, Chester H., Jr. Reed, James B. Juries...... June 2001...... 10 Software Review...... February 2000...... 58 Mulholland, Ellen M. Reixach, Rene H., Jr. Lawyer’s Bookshelf...... February 2000...... 59 Health Law...... February 2000...... 8 Lawyer’s Bookshelf...... September 2000...... 54 Richter, Roslyn Lawyer’s Bookshelf...... March / April 2001...53 Juries...... June 2001...... 19 Munsterman, G. Thomas Rizzo, Joseph B. Juries...... June 2001...... 10 Civil Procedure...... February 2001...... 40 Murphy, Hon. Francis T. Rohan, Patrick J. Criminal Law ...... April 1999 ...... 86 Real Property Law ...... October 2000...... 49 Point of View...... January 2000...... 54 Rose, James M. Point of View...... March / April 2000...57 Humor...... March 1999 ...... 54 Netter, Miriam M. Humor...... May / June 1999 ...... 54 Courts...... November 1999...... 10 Humor...... July / August 1999 ...48 Legal Profession ...... May 2001...... 49 Humor...... January 2000...... 56 Neumark, Avery E. Humor...... July / August 2000 ...64 Retirement ...... March / April 2001...26 Humor...... September 2000...... 64 Humor...... Nov. / Dec. 2000...... 64 Nicolais, Robert F. Family Law...... November 1999...... 39 Rosenberg, Lewis Lawyer’s Bookshelf...... January 2000...... 58 Oliver, Donald D. Employment Law...... Sept. / Oct. 1999 ...... 61 Rosenblatt, Albert M. Juries...... June 2001...... 8 Osterman, Melvin H. Labor Law ...... January 2001...... 40 Ross, David S. Point of View...... July / August 2000 ...46 Ovsiovitch, Jay S. Criminal Law ...... June 2000...... 35 Rothberg, Richard S. Tax Techniques...... May 2000...... 51 Ozello, James Helpful Practice Hints ...... March / April 2000...54 Rubenstein, Joshua S. Estate Planning...... December 1999...... 52 Palermo, Anthony R. Trust and Estate Law ...... February 2001...... 37 Lawyer’s Bookshelf...... April 1999 ...... 89 Schelanski, Vivian B. Palewski, Peter S. Point of View...... July / August 2000 ...46 Environmental Law ...... May 2000...... 8 Schlesinger, Sanford J. Panken, Peter M. Estate Planning...... December 1999...... 43 Employment Law...... Sept. / Oct. 1999 ...... 26 Estate Tax Law...... September 2001...... 37

46 Journal | November/December 2001 Schumacher, Jon L. Ward, Ettie Estate Planning...... December 1999...... 23 Civil Procedure...... October 2000...... 18 Sederbaum, Arthur D. Weinberg, Philip Tax Techniques...... June 2000...... 48 Land-use Regulations...... October 2000...... 44 Shaw, Adam M. Point of View...... February 2000...... 55 Health Law...... July / August 1999 ...30 Weinberger, Michael Sheinberg, Wendy H. Evidence ...... July / August 2000 ...38 Health Law...... February 1999...... 36 Whisenand, Lucia B. Sheldon, David P. Family Law...... January 2001...... 49 Government and the Law...February 2001...... 44 Wicks, James M. Siegel, David D. Arbitration/ADR ...... September 2000...... 35 Civil Procedure...... January 2001...... 10 Civil Procedure...... February 1999...... 44 Siegel, Frederic Williams, Jeffery D. Software Review...... February 1999...... 50 Employment Law...... Sept. / Oct. 1999 ...... 26 Silverman, Daniel Wilsey, Gregory S. Employment Law...... Sept. / Oct. 1999 ...... 80 Legal Education...... March / April 2000...10 Juries...... June 2001...... 50 Siris, Mike Lawyer’s Bookshelf...... February 1999...... 51 Winfield, Richard N. Freedom of Information...... May / June 1999 ...... 37 Slater-Jansen, Susan B. Retirement ...... March / April 2001...26 Young, Maureen W. Employment Law...... January 2000...... 30 Spelfogel, Evan J. Employment Law...... Sept. / Oct. 1999 ...... 16 Young, Sanford J. Appeals...... March 1999 ...... 8 Spivak, Edith I. Women in Law...... January 2001...... 60 Younkins, Ronald Courts...... February 2001...... 12 Starr, Stephen Z. Bankruptcy ...... July / August 2000 ...28 Zoellick, Bill Science and Technology ...... Nov. / Dec. 2000...... 10 Stein, Joshua Banking/Finance Law...... July / August 2001 ...25 Zuckerman, Michael H. Legal Writing ...... July / August 1999 ...44 Estate Planning...... December 1999...... 16 Steinberg, Harry Zuckerman, Richard K. Courts...... November 1999...... 12 Employment Law...... Sept. / Oct. 1999 ...... 43 Courts...... March / April 2001...39 Zullo, Emil Taller, Y. David Juries...... June 2001...... 50 Torts and Negligence...... May / June 1999 ...... 24 Zweig, Marie Torts and Negligence...... September 2000...... 27 Civil Procedure...... February 1999...... 44 Taylor, Patrick L. Criminal Law ...... February 2000...... 41 Trueman, David ERISA ...... February 1999...... 6 Turano, Margaret V. Errata Law and Literature ...... October 2000...... 12 The following is the biography of Lorentz W. Twomey, Laura M. Hansen that should have appeared on page 44 of Tax Techniques...... October 2001...... 52 the October issue. Vidmar, Neil LORENTZ W. HANSEN practices tax law in White Juries...... June 2001...... 23 Plains. He graduated from Harvard University and received an LL.B. from Columbia University Vitullo-Martin, Julia School of Law, where he was a Harlan Fiske Juries...... June 2001...... 43 Stone Scholar, and an LL.M. in Taxation from Wagner, Richard H. New York University Graduate School of Law. Lawyer’s Bookshelf...... February 2001...... 56

Journal | November/December 2001 47 Index to Articles—1999-2001

This index places the articles in one of ERISA Law Practice the following categories: Estate Planning Lawyer’s Bookshelf Column Estate Tax Law Legal and Medical Malpractice Appeals Ethics and the Law Legal Education Arbitration / Alternative Dispute Evidence Legal Profession Resolution Family Law Legal Writing Antitrust Law Freedom of Information Mortgages & Liens Banking / Finance Law Government and the Law Poetry Bankruptcy Health Law Point of View Column Business Law Helpful Practice Hints Column Privileges Civil Procedure History in the Law Professional Responsibility Commercial Law Humor Column—Res Ipsa Jocatur Real Property Law Computers and the Law Insurance Law Retirement Constitutional Law Intellectual Property Science & Technology Contract Law International Law Software Review Corporation Law Judiciary Tax Law Courts Juries Tax Techniques Column Covenants Not to Compete Labor Law Tort Law Criminal Law Landlord / Tenant Law Torts & Negligence Discrimination Land-use Regulations Trial Practice Elder Law Language Tips Column Trust & Estate Law Employment Law Law and Literature Women in Law Environmental Law

Appeals Bankruptcy Appeals from Intermediate Courts Require Careful Criminal and Civil Consequences of False Oaths in Adherence to Applicable Statutes and Rules Bankruptcy Help Ensure Reliable Information Young, Sanford F...... March 1999 ...... 8 Holly, Wayne D...... March 1999 ...... 38 Life Insurance and Annuities May Insulate Some Arbitration / Alternative Dispute Resolution Assets From Loss in Unexpected Bankruptcy Filings Courts Differ on Standard Applicable When Parties Bandler, Brian C.; in Arbitration Cases Seek Provisional Remedies Starr, Stephen Z...... Jul./Aug.2000...... 28 Mone, Jennifer M.; Wicks, James M...... Sept.2000 ...... 35 Business Law Mediation Can Help Parties Reach Faster, Less Complex of Federal and State Laws Regulates Costly Results in Civil Litigation Franchise Operations as Their Popularity Grows La Manna, Judith A...... May 2001...... 10 Kassoff, Mitchell J...... February 2001...... 48 (See also Employment Law) Evolution of Corporate Usury Laws Has Left Vestigial Statutes that Hinder Business Transactions Special Procedures Apply to Enforcing Judgments in Golden, Paul...... May 2001...... 20 Small Claims Courts Lebovits, Gerald ...... January 1999...... 28 Children and the Law “Team Red Hook” Addresses Wide Range of See Family Law Community Needs Civil Procedure Calabrese, Alex ...... June 2000...... 14 Adjournments in State Civil Practice: Courts Seek Antitrust Law Careful Balance Between Fairness and Genuine New York Antitrust Bureau Pursues Mandate to Needs Represent State Interests In Fostering Competitive Crane, Stephen, G.; Environment Meade, Jr., Robert C...... May 2000...... 36 Cavanagh, Edward D...... January 2000...... 38 “Automatic” Stay of CPLR 5519(a)(1): Can Differences in Its Application Be Clarified?, The Banking / Finance Law Cherubin, David M.; Confusury Unraveled: New York Lenders Face Lauricella, Peter A...... November 1999...... 24 Usury Risks in Atypical or Small Transactions Stein, Joshua...... Jul./Aug. 2001...... 25 Civil Procedure—CPLR Provided Escape From Common Law Technicalities Gramm-Leach-Bliley Act Challenges Financial Regu- Siegel, David D...... January 2001...... 10 lators to Assure Safe Transition in Banking Industry Di Lorenzo, Vincent ...... October 2000...... 36

48 Journal | November/December 2001 Impleader Practice in New York: Does It Really Judicial Roundtable-Reflection of Problem-Solving Discourage Piecemeal Litigation? Court Justices Wicks, James M.; June 2000...... 9 Zweig, Marie...... February 1999...... 44 New York’s Problem-Solving Courts Provide Judicial Departments Differ on Application of Meaningful Alternatives to Traditional Remedies Spoliation Motion When Key Evidence Is Destroyed Berman, Greg; Rizzo, Joesph B...... February 2001...... 40 Knipps, Susan K...... June 2000...... 8 New York’s Long Arm Statute Contains Provisions Old Rensselaer County Jail Is Transformed into Suitable for Jurisdiction over Web Sites Modern Facility for Full-Service Family Court Bauchner, Joshua S...... Mar./Apr. 2000...... 26 Katzman, Gerald H.; Will the Proposed Amendments to the Federal Rules Marbot, Karen L.; of Civil Procedure Improve the Pretrial Process Netter, Miriam M...... November 1999...... 10 Ward, Ettie...... October 2000...... 18 Stare Decisis Provides Stability to the Legal System, But Applying It May Involve a Love-Hate Commercial Law Relationship Decisions Have Set Parameters for Establishing “Fair Steinberg, Harry ...... Mar./Apr. 2001...... 39 Value” of Frozen-out Shareholder Interests Mahler, Peter A...... Jul./Aug. 1999...... 21 Covenants Not to Compete Courts in New York Will Enforce Non-Compete Computers and the Law Clauses in Contracts Only if They Are Carefully Internet Web Sites Offer Access to Less Expensive Contoured Case Law and Materials Not Offered Commercially Gregory, David L...... October 2000...... 27 Manz, William H...... Nov./Dec. 2000 ...... 26 Protecting Trade Secrets: Using “Inevitable Misap- Constitutional Law propriation” and the Exit Interview Appeals Can Deal With the “Stain” of Unpreserved Carlinsky, Michael B.; Constitutional Issues If Criteria for Exceptions Are Krieger, Lara M...... February 1999...... 29 Met Golden, Paul...... Nov./Dec. 2001 ...... 34 Criminal Law Criminal Law—Dramatic Changes Affected Decisions of the Past Decade Have Expanded Equal Procedural and Substantive Rules Protection Beyond Suspect Classes McQuillan, Peter J...... January 2001...... 16 McGuinness, J. Michael...... February 2000...... 36 Cutbacks in Funding of PLS Have Crippled Its Contract Law Ability to Seek Fairness for Prisoners Businesses Considering Renting in Commercial Curran, Paul J.; Condominiums Face Unique Contractual Issues Leven, David C...... January 1999...... 23 Leeds, Matthew J...... July/Aug. 2001...... 43 Expanded Enforcement Options for Orders of Protec- Contractual Unconscionability: Identifying and tion Provide Powerful Reply to Domestic Violence Understanding Its Potential Elements Fields, Marjory D...... February 2001...... 18 Marrow, Paul Bennett...... February 2000...... 18 Hospital-based Arraignments Involve Conflicts in Federal Courts in New York Provide Framework for Roles of Press, Patients, Hospitals and Law Enforcing Preliminary Agreements Enforcement Brodsky, Stephen L...... Mar./Apr. 2001...... 16 Taylor, Patrick L...... February 2000...... 41 Corporation Law New York Felony Sentencing: Shift in Emphasis to Courts Apply Investment-Contact Test to Determine Increase Penalties for Violent Offenders When LLC Membership Interests Are Securities Cohen-Gallet, Bonnie...... January 1999...... 40 Mahler, Peter...... July/Aug. 2001...... 10 “Project Exile” Effort on Gun Crimes Increases Need Twenty Years of Court Decisions Have Clarified for Attorneys to Give Clear Advice on Possible Shareholder Rights Under BCL §§ 1104-a and 1118 Sentences Mahler, Peter A...... May/June 1999 ...... 28 Clauss, William; Ovsiovitch, Jay S...... June 2000...... 35 Courts Shootings by Police Officers Are Analyzed Under Court Facilities Renewal Standards Based on Objective Reasonableness Younkins, Ronald ...... February 2001...... 12 McGuinness, J. Michael...... Sept. 2000 ...... 17 Effect of Changes in Decisional Law on Other Cases United States Should Ratify Treaty for International Depends Upon Status When New Ruling Is Made Criminal Court Steinberg, Harry ...... November 1999...... 12 Murphy, Francis T...... April 1999 ...... 86

Journal | November/December 2001 49 Discrimination When Duty Calls: What Obligations Do Employers Use of Race in “Stop-and-Frisk”: Stereotypical Beliefs Have to Employees Who Are Called to Military Linger, But How Far Can the Police Go? Service? Gershman, Bennett L...... Mar./Apr. 2000...... 42 Cilenti, Maria; Klein, Eve I...... Nov./Dec. 2001 ...... 10 Elder Law Do Implied Contract Principles or Fraud Theories Environmental Law Support Medicaid Suits Against Community Courts May Find Individuals Liable for Environmen- Spouses? tal Offenses Without Piercing Corporate Shield Rachlin, Marvin ...... February 2001...... 32 Monachino, Benedict J...... May 2000...... 22 Employment Law Environmental Cases in New York Pose Complex Can Employers Limit Employee Use of Company Remediation Issues With Profound Impact on Land E-mail Systems for Union Purposes? Values Young, Maureen W...... January 2000...... 30 Palewski, Peter S...... May 2000...... 8 Cost Savings from Hiring Contingent Workers May ERISA Be Lost if Their Status is Challenged As Managed Care Plans Increase, How Can Patients Bernak, Elliot D.; Hold HMOs Liable for Their Actions? Frumkin, William D...... Sept./Oct. 1999 ...... 36 Trueman, David...... February 1999...... 6 Employers Need to Observe Limits on Monitoring Summary of Report—Association Committee Recom- the Workplace and Reduce Privacy Expectations mends Pension Simplification Commission Panken, Peter M.; Lurie, Alvin D...... May 2000...... 44 Williams, Jeffery D...... Sept./Oct. 1999 ...... 26 Estate Planning Employment-at-Will in New York Remains Essen- (See also Retirement) tially Unchanged After a Century of Refinements Andrews, Ross P.; 1999 New York State Legislative Changes Affecting Maroko, Richard A...... Sept./Oct. 1999 ...... 8 Estate Planning and Administration Rubenstein, Joshua S...... December 1999...... 52 Labor, Management Officials See Benefits in Negoti- ated Procedure for Coverage Under GML § 207 Buy-sell Agreements Developed as Estate Planning Dunn, Ronald G.; Vehicles Require Foresight and Periodic Review Gold, Elayne G...... Sept./Oct. 1999 ...... 70 Grall, John G.; Zuckerman, Michael H...... December 1999...... 16 NRLB Regional Director’s Life in Sports: Hard-ball Labor Relations in Sports Lead to Government Estate Planning for Benefits from IRAs and Qualified Involvement, An Retirement Plans Involves Numerous Taxation Issues Silverman, Daniel...... Sept./Oct. 1999 ...... 80 Krass, Stephen J...... December 1999...... 29 Pre-dispute ADR Agreements Can Protect Rights of Generation-skipping Transfer Tax Continues Parties, Reduce Burden on Judicial System to Evolve and May Pose Traps and Pitfalls for Spelfogel, Evan J...... Sept./Oct. 1999 ...... 16 the Unwary Mark, Dana L.; Project Labor Agreements Offer Opportunity for Schlesinger, Sanford J...... December 1999...... 43 Significant Savings on Public Construction Projects Gaal, John; Gifts Must Involve Some Sacrifice, but the Tax Oliver, Donald D...... Sept./Oct. 1999 ...... 61 Benefits Can Enhance Estate Planning Strategies Schumacher, Jon L...... December 1999...... 23 Recent Decisions Have Created New Theories of Negotiability Under the Taylor Law Post-mortem Tax Planning Will Continue as Vital Crotty, John M...... Sept./Oct. 1999 ...... 74 Element in Handling Large Estates Peckham, Eugene E...... December 1999...... 37 Rising Tide of Retaliation Claims Challenges Em- ployers to Adopt Adequate Preventive Measures, A Steps Taken While Testator Is Alive Can Play a Key Halligan, Rosemary; Role in Upholding Client’s Estate Plan After Death Klein, Eve I...... Sept./Oct. 1999 ...... 51 Barnosky, John J.; Morken, John R...... December 1999...... 8 Romance in the Workplace: Employers Can Make Rules if They Serve Legitimate Needs Estate Tax Law Berlin, Sharon N.; Changes in Estate and Gift Taxes Will Increase Zuckerman, Richard K...... Sept./Oct. 1999 ...... 43 Exemption Amounts and Lower Federal Rates To Defer or Not to Defer: Handling Improper Mark, Dana L.; Practice Charges Under the Taylor Act Schlesinger, Sanford J...... Sept. 2001 ...... 37 Maier, Philip L...... May/June 1999 ...... 41

50 Journal | November/December 2001 New Era for Estate Administration in New York Has Government and the Law Reduced Estate Tax but Many Requirements Still Military Law Cases Present Diverse Array of Vital Apply Issues for Individuals and the Government Peckham, Eugene E...... Sept. 2000 ...... 30 Fidell, Eugene R.; Sheldon, David P...... February 2001...... 44 Ethics and the Law Using Threats to Settle a Civil Case Could Subject Municipal Law—Fundamental Shifts Have Altered Counsel to Criminal Consequences the Role of Local Governments Holly, Wayne D...... January 2000...... 26 Magavern, James L...... January 2001...... 52 Evidence Health Law Close Attention to Detail Can Persuade Judges to In Matters of Life and Death: Do Our Clients Truly Order Truly Complete Discovery Responses Give Informed Consent? Weinberger, Michael ...... July/Aug. 2000...... 38 Sheinberg, Wendy H...... February 1999...... 36 Document Examination—Detecting Forgeries Medicaid and Medicare Fair Hearings Are Vital First Requires Analysis of Strokes and Pressures Step in Reversing Adverse Decisions on Patient Care Jalbert, R. Joseph ...... Nov./Dec. 2000 ...... 24 Reixach, Rene H., Jr...... February 2000...... 8 Judicial Certification of Experts: Litigators Should New York Requires External Review of Adverse Blow the Whistle on a Common But Flawed Practice Coverage Decisions by HMOs and Health Insurers Kirgis, Paul Frederic ...... February 2000...... 30 Shaw, Adam M...... July/Aug. 1999...... 30 Kumho Tire - Decision Extends Daubert Approach to Helpful Practice Hints Column All Expert Testimony Changes in Rules for Home Offices Provide New Cavanagh, Edward D...... July/Aug. 1999...... 9 Possibilities for Deductions Kumho Tire - Supreme Court Dramatically Changes Ozello, James...... Mar./Apr. 2000...... 54 the Rules on Experts Computerized Research of Social Security Issues Littleton, Robert W...... July/Aug. 1999...... 8 Maccaro, James A...... May 2000...... 54 Litigation Strategies—Reviewing Documents for Disability Benefit Opportunities for Clients Privilege: A Practical Guide to the Process Modica, Steven V...... May/June 1999 ...... 52 Cohen, Daniel A...... Sept. 2000 ...... 43 History in the Law Need for a Testifying Physician to Rely on Reports Reflections on Sentencing—Adapting Sanctions to by a Non-Testifying Physician Poses Evidentiary Conduct Poses Centuries-old Challenge Problems Boehm, David O...... October 2001...... 33 Friedman, Marcy S...... Nov./Dec. 2001 ...... 28 Seriatim Reflections—A Quarter Century in Albany: Family Law A Period of Constructive Progress Best Interests of the Child Remain Paramount in Bellacosa, Joseph W...... October 2000...... 5 Proceedings to Terminate Parental Rights Taking Title to New York: The Enduring Authority of Crick, Anne; Roman Law Lebovits, Gerald ...... May 2001...... 41 Massaro, Dominic R...... January 2000...... 44 Family Law—From Father Knows Best to New Rights for Women and Children Humor Column—Res Ipsa Jocatur Whisenand, Lucia B...... January 2001...... 49 Deep in the Heart of Taxes, or . . . Few Happy Returns State and Federal Statutes Affecting Domestic Rose, James M...... March 1999 ...... 54 Violence Cases Recognize Dangers of Firearms Nicolais, Robert F...... November 1999...... 39 Defending the Lowly Footnote McAloon, Paul F...... Mar./Apr. 2001...... 64 Uniform Interstate Family Support Act Has Made Extensive Changes in Interstate Child Support Cases Does the FDA Have Jurisdiction Over “Miracles”? Aman, John J...... January 2000...... 12 Rose, James M...... Sept. 2000 ...... 64 View From the Bench—One More Time: Custody In Praise of Appraisal: Alternate Dispute Resolution Litigation Hurts Children in Action Fields, Marjory D...... June 2000...... 20 Rose, James M...... January 2000...... 56 NAFTA’s Why Santa Claus Is Not Comin’ to Town Freedom of Information Rose, James M...... Nov./Dec. 2000 ...... 64 Decision in Schenectady Case Denies Access to Records of Policy Guilty of Misconduct Tooth Fairy Prosecuted Under Provisions of Public Winfield, Richard N...... May/June 1999 ...... 37 Health Law Rose, James M...... May/June 1999 ...... 54

Journal | November/December 2001 51 “What’s Round on the Ends, High in the Middle and Linguistic Issues—Is Plain English the Answer to the Late in the Union?” Will Become a Legal Question Needs of Jurors? Rose, James M...... July/Aug. 1999...... 48 Lazer, Leon D...... June 2001...... 37 Will New York State Nikes Become Pyhrric Victories? Magic in the Movies—Do Courtroom Scenes Have Rose, James M...... July/Aug. 2000...... 64 Real-Life Parallels? Marks, Patricia D...... June 2001...... 40 Insurance Law Actions by Courts and Legislature in 2000 Addressed Pattern Instructions for Jurors in Criminal Cases Seek Issues Affecting Uninsured and Underinsured to Explain Fundamental Legal Principles Drivers Fisher, Steven W...... June 2001...... 29 Dachs, Jonathan A...... Sept. 2001 ...... 26 Public’s Perspective—Successful Innovations Will Decisions in 1998 Clarified Issues Affecting Coverage Require Citizen Education and Participation, The for Uninsured and Underinsured Motorists Vitullo-Martin, Julia...... June 2001...... 43 Dachs, Jonathan A...... May/June 1999 ...... 8 Review of Jury Systems Abroad Can Provide Helpful Summing up 1999 ‘SUM’ Decisions: Courts Provide Insights Into American Practices New Guidance on Coverage Issues for Motorists Vidmar, Neil...... June 2001...... 23 Dachs, Jonathan A...... July/Aug. 2000...... 18 Summit Sessions Assessed Representative Quality of Juries and Juror Communication Issues Intellectual Property Mount, Chester H., Jr.; Intellectual Property—Substantive and Procedural Munsterman, G. Thomas ....June 2001...... 10 Laws Have Undergone Fundamental Change Carr, Francis T...... January 2001...... 58 Turning the Tables—The Commissioner of Jurors Takes on a New Role International Law Goodman, Norman...... June 2001...... 32 On the Road—Taking Depositions in Tokyo Or: The View from the Jury Box—The System is Not Perfect, Only Show in Town But It’s Doing Pretty Well Disner, Eliot G...... Mar./Apr. 2000...... 35 Gutekunst, Claire P...... June 2001...... 35 Judiciary When Employees Are Called—Rules Set Standards Now You See It, Now You Don’t: Depublication and for Employers and Allow Delays in Some Cases Nonpublication of Opinions Raise Motive Questions Mone, Mary C...... June 2001...... 47 Gershman, Bennett L...... October 2001...... 36 Labor Law View From the Bench—The Most Powerful Word in (See also Employment Law) the Law: “Objection!” Marrus, Alan D...... July/Aug. 2000...... 42 Labor Law—A Formerly Arcane Practice Now Handles a Wide Range of Issues Juries Osterman, Melvin H...... January 2001...... 40 Can the Pattern Jury Instruction on Medical Malprac- tice Be Revised to Reflect the Law More Accurately? Landlord / Tenant Law Fitzgerald, Brian P...... November 1999...... 32 Summation in Rhyme: What Amount Will Compensate for Robert’s Sad Fate? Educating Future Jurors—School Program Highlights Pinzel, Frank B...... March 1999 ...... 50 Jury Service as Fundamental Right Wilsey, Gregory S.; Land-use Regulations Zullo, Emil...... June 2001...... 50 Control of Suburban Sprawl Requires Regional Innovative Comprehension Initiatives Have Coordination Not Provided by Local Zoning Laws Enhanced Ability of Jurors to Make Fair Decisions Weinberg, Philip ...... October 2000...... 44 Joseph, Gregory P...... June 2001...... 14 Language Tips Column Introduction to Special Edition on Juries January 1999 through December 2000, inclusive Kaye, Judith S.; Block, Gertrude Rosenblatt, Albert M...... June 2001...... 8 Also February, March / April, June, July / August, Juror Excuses Heard Around the State October and November / December 2001 June 2001...... 34 Law and Literature Jury Reform Has Changed Voir Dire, But More Reflections on Reading—Moments of Grace: Lawyers Exploration Is Needed Into the Types of Questions Reading Literature Asked Turano, Margaret V...... October 2000...... 12 Richter, Roslyn...... June 2001...... 19

52 Journal | November/December 2001 Law Practice New York Zoning Law and Practice, 4th Edition Law Office Management—How Should Law Firms (by Patricia Salkin) Respond to New Forms of Competition? Gesualdi, James F...... Sept. 2000 ...... 54 Gallagher, Stephen P...... June 2000...... 24 Protect and Defend (by Richard North Patterson) Records and Information Management Programs Mulholland, Ellen M...... Mar./Apr. 2001...... 53 Have Become Vital for Law Firms and Clients Successful Partnering Between Inside and Outside Martins, Cristine S.; Counsel (West Group / American Corporate Counsel Martins, Sophia J...... October 2001...... 21 Association) Roundtable Discussion—U.S., British and German Moore, James C...... Mar./Apr. 2001...... 52 Attorneys Reflect on Multijurisdictional Work Transforming Practices: Finding Joy and Satisfaction June 2000...... 31 in Legal Life (by Steven Keeva) Lawyer’s Bookshelf Column Mulholland, Ellen M...... February 2000...... 59 Business and Commercial Litigation in Federal The Greatest Player Who Never Lived: A Golf Story Courts (edited by Robert L. Haig) (by J. Michael Veron) Fiske, Jr., Robert B...... March 1999 ...... 56 Lang, Robert D...... February 2001...... 57 Contempt of Court: The Turn-of-the-Century Legal and Medical Malpractice Lynching that Launched 100 Years of Federalism Unhappy Clients May Lodge Complaints of Neglect (by Mark Curriden and Leroy Philips, Jr.) Even When Malpractice Is Not an Issue Moore, James C...... Mar./Apr. 2000...... 50 Coffey, James J.; Evidentiary Privileges (Grand Jury, Criminal and Peck, Dana D...... May/June 1999 ...... 47 Civil Trials) (by Lawrence N. Gray) Boehm, David O...... June 2000...... 51 Legal Education Annual Mock Trial Competition Introduces High General Practice in New York (Robert L. Ostertag, School Students to the Law and Court Procedures Hon. James D. Benson, editors) Wilsey, Gregory S...... Mar./Apr. 2000...... 10 Palermo, Anthony R...... April 1999 ...... 89 Tournament Teaches Skills for a Lifetime Handling Employment Disputes in New York (by Korgie, Tammy S...... Mar./Apr. 2000...... 11 Sharon P. Stiller, Hon. Denny Chin, Mindy Novick) Bernstein, Michael I...... Mar./Apr. 2000...... 51 Legal Profession Judicial Outreach on a Shoestring (by Hon. Richard 18-B Experience—Court-Appointed Attorneys Face Fruin) Legal and Financial Challenges, The Gerges, Hon. Abraham G. ..July/Aug. 1999...... 50 Korgie, Tammy S...... May 2001...... 5 Judicial Retirement Laws of the Fifty States and the Ethics—”Touting” in 1963 Was Replaced by a Flood District of Columbia (by Bernard S. Meyer) of Information About Lawyers Gerhart, Eugene C...... February 2000...... 59 Craco, Louis A...... January 2001...... 23 Ladies and Gentlemen of the Jury (by Michael S. Exclusion Language of Policies May Deny Attorneys Leif, H. Mitchell Caldwell, Ben Bycel) Coverage for Mistakes in Business Pursuits Wagner, Richard H...... February 2001...... 56 Adams, Martin B...... March 1999 ...... 46 Lawyer (by Arthur Liman, with Peter Israel) Justice Robert H. Jackson, A Tribute Siris, Mike...... February 1999...... 51 Gerhart, Eugene C...... Nov./Dec. 2000 ...... 42 May It Please the Court! (Leonard Rivkin, with Memoriam: Lawrence H. Cooke 1914-2000, In Jeffrey Silberfeld) Kaye, Judith S...... Sept. 2000 ...... 50 Mulholland, Ellen M...... Sept. 2000 ...... 54 Professionalism Award—Chronicle of a Career Mobbing: Emotional Abuse in the American Netter, Miriam M...... May 2001...... 49 Workplace (by Noa Davenport, Ruth Distler Tribute—William J. Carroll, A Schwartz, Gail Pursell Elliott) May 2001...... 25 La Manna, Judith A...... June 2000...... 52 Legal Writing New York Evidence with Objections (by Jo Ann Legal Writer—Dress for Success: Be Formal But Not Harris, Anthony A. Bocchino, David A. Sonenshein) Inflated Kirgis, Paul Frederic...... May 2000...... 50 Lebovits, Gerald ...... July/Aug. 2001...... 8 New York Legal Research Guide Legal Writer—Getting to Yes: Affirmative Writing (by Ellen M. Gibson) Lebovits, Gerald ...... October 2001...... 64 Emery, Bob...... January 1999...... 49 Legal Writer—”Of” With Their Heads: Concision New York Objections (by Justice Helen E. Freedman) Lebovits, Gerald ...... Nov./Dec. 2001 ...... 64 Rosenberg, Lewis ...... January 2000...... 58

Journal | November/December 2001 53 Legal Writer—On Terra Firma With English Reflections on Being Mediators Lebovits, Gerald ...... Sept. 2001 ...... 64 Ross, David S.; Research Strategies—A Practical Guide to Cite- Schelanski, Vivian B...... Jul./Aug. 2000...... 46 Checking: Assessing What Must Be Done Televised Criminal Trials May Deny Defendant a Fair Bennett, Steven C...... February 2000...... 48 Trial View From the Bench—Clarity and Candor Are Vital Murphy, Francis T...... Mar./Apr. 2000...... 57 in Appellate Discovery To the Supreme Court: Keep the Courthouse Doors Boehm, David O...... November 1999...... 52 Open Writing Clinic—An Attorney’s Ethical Obligations Weinberg, Philip ...... February 2000...... 55 Include Clear Writing Treatment Option for Drug Offenders Is Consistent Davis, Wendy B...... January 2000...... 50 with Research Findings Writing Clinic—Analyzing the Writer’s Analysis: Leshner, Alan I...... Sept. 2000 ...... 53 Will It Be Clear to the Reader? United States Should Ratify Treaty for International Donahoe, Diana Roberto.....Mar./Apr. 2000...... 46 Criminal Court Writing Clinic—Making the Language of the Law Murphy, Francis T...... April 1999 ...... 87 Intelligible and Memorable Why the Legal Profession Needs to Mirror the McCloskey, Susan...... November 1999...... 47 Community It Serves Writing Clinic—So Just What Is Your Style? Hall, L. Priscilla ...... Nov./Dec. 2000 ...... 38 McCloskey, Susan...... Nov./Dec. 2001 ...... 39 Privileges Writing Clinic—The Keys to Clear Writing Lead to Privilege and the Psychologist: Statutory Differences Successful Results Yield Untailored Multilateral Confusion McCloskey, Susan...... Nov./Dec. 2000 ...... 31 Marrow, Paul Bennett...... March 1999 ...... 26 Writing Clinic—Writing Clearly and Effectively: Professional Responsibility How to Keep the Reader’s Attention CLE for New York Attorneys: Ensuring the Tradition Stein, Joshua...... July/Aug. 1999...... 44 of Professionalism Litigation Pfau, Ann...... January 1999...... 8 (See also Trial Practice) Estates with Multiple Fiduciaries Pose Ethical and Practical Issues for Attorneys and Clients Alike Mortgages & Liens Freidman, Gary; Early Assessment of Potential Liens Is Critical to Morken, John R...... Nov./Dec. 2001 ...... 22 Assure that Recovery Meets Client’s Expectations Little, Elizabeth E...... Mar./Apr. 2001...... 44 Part 1500. Mandatory Continuing Legal Education Program for Attorneys in State of New York Mortgage Foreclosures Involve Combination of Law, January 1999...... 12 Practice, Relationships and Strategies Bergman, Bruce J...... July/Aug. 2001...... 19 Real Property Law Understanding Mechanic’s Liens Reveals Ap- A Primer on Conveyancing—Title Insurance, Deeds, proaches To Thwart a Developer’s Improper Filing Binders, Brokers and Beyond Lustbader, Brian G...... July/Aug. 2001...... 51 Rohan, Patrick J...... October 2000...... 49 Wall Street Remains a Key Player in Commercial Retirement Real Estate Financing Despite Capital Market New Rules Offer Greater Flexibility and Simpler Fluctuations Distribution Patterns for IRAs and Pension Plans Forte, Joseph Philip...... July/Aug. 2001...... 34 Neumark, Avery E.; Slater-Jansen, Susan B...... Mar./Apr. 2001...... 26 Poetry Challenges Science & Technology Dunham, Andrea Atsuko....January 2000...... 53 Technology Primer—Video Teleconferencing of Hearings Provides Savings in Time and Money Point of View Column La Manna, Judith A...... Sept. 2000 ...... 8 Client Protection Funds Serve Noble and Pragmatic Needs Wide Use of Electronic Signatures Awaits Market Miller, Frederick ...... February 2001...... 53 Decisions About Their Risks and Benefits Zoellick, Bill ...... Nov./Dec. 2000 ...... 10 Faceless Mentally Ill in our Jails, The Gerges, Abraham G...... March 1999 ...... 52 Securities Law Participation of Women Should Be Required in (See also Corporation Law) Domestic Violence Cases Murphy, Francis T...... January 2000...... 54

54 Journal | November/December 2001 Software Review Report of the Task Force to Consider Tort Reform CaseMap (CaseSoft) Proposals Reed, James B...... February 2000...... 58 April 1999 ...... 80 Kidmate: A Joint Custody Program for Family Law Rising Tide of Torts?, A Specialists (Lapin Agile, Inc.) April 1999 ...... 40 Siegel, Frederic...... February 1999...... 50 Tort Law Debate in New York, The Tax Law Angione, Howard...... April 1999 ...... 7 Phase-Ins, Phase-Outs, Refunds and Sunsets Mark Tort Law in New York Today New Tax Bill, a/k/a EGTRRA 2001 April 1999 ...... 8 Peckham, Eugene E...... October 2001...... 41 Torts and Trials—Changes Made in Juries, Timing the Transfer of Tax Attributes in Bankruptcy Settlements, Trial Procedures, Liability Concepts Can Be Critical to the Taxpayer Miller, Henry G...... January 2001...... 26 Hansen, Lorentz W...... October 2001...... 44 Trial Practice Tax Techniques Column A Real Case—Learning to Love: The Trial Lawyer’s Community Foundations: Doing More for the 14 Challenges Community Miller, Henry G...... Sept. 2001 ...... 8 Peckham, Eugene E...... February 2000...... 52 Changes in Practice and on the Bench—Days of Con- Proposed GST Regulations Clarify Exemptions for viviality Preceded Specialization and Globalization Grandfathered Trusts Hancock, Jr., Stewart F., ...... January 2001...... 35 Sederbaum, Arthur D...... June 2000...... 48 Trial Strategies—Quick Voir Dire: Making the Most of Qualified State Tuition Programs and Education 15 Minutes IRAs Cole, Ann H.; Rothberg, Richard S...... May 2000...... 51 Liotti, Thomas F...... Sept. 2000 ...... 39 State Income Tax: Not All Trusts Must Pay View from the Bench—Lawyers Need Detailed Michaels, Philip J.; Knowledge of Rules for Using Depositions at Trial Twomey, Laura M...... October 2001...... 52 DiBlasi, John P...... October 2001...... 27 Tort Law Trust & Estate Law Corporate Officers and Directors Seek (See also Estate Planning) Indemnification from Personal Liability Advances in DNA Techniques Present Opportunity Coffey, James J.; to Amend EPTL to Permit Paternity Testing Gaber, Mohamed K...... Mar./Apr. 2001...... 8 Cooper, Ilene Sherwyn ...... July/Aug. 1999...... 34 Torts & Negligence Notable Changes Affecting Estates in the Year 2000 Alternate Methods of Service for Motor Vehicle Cases Reformed Wills and Trusts for Tax Purposes Provide Way to Reach Elusive Defendants Rubenstein, Joshua S...... February 2001...... 37 Taller, Y. David...... May/June 1999 ...... 24 Special Procedures for Victims of the World Trade Are Lawyers Promoting Litigation? Center Tragedy Provide Expedited Access to Assets April 1999 ...... 9 Leinheardt, Wallace L...... October 2001...... 8 Assessing the Costs and Benefits Women in Law April 1999 ...... 32 A Woman’s Reflections—Difficulties Early in the Civil Justice Reform Act, The Century Gave Way to Present Openness April 1999 ...... 64 Spivack, Edith I...... January 2001...... 60 Lawsuits on the Links: Golfers Must Exercise Large Firm Practice—Women and Minorities Joined Ordinary Care to Avoid Slices, Shanks and Hooks Firms as Rivalry Opened for Business Lang, Robert D...... July/Aug. 2000...... 10 Gillespie, S. Hazard ...... January 2001...... 43 Normal Rules on Liability for Failure to Use Seat Belts May Not Apply in School Bus Accidents Effinger, Montgomery Lee...June 2000...... 41 Proposals for Change in Tort Law April 1999 ...... 57 Proof of Recurring Conditions Can Satisfy Prima Facie Requirement for Notice in Slip-and-Fall Litigation Taller, Y. David...... Sept. 2000 ...... 27

Journal | November/December 2001 55 NYSBACLE Publications New York Lawyer’s Deskbook Second Edition

Written and edited by leading practitioners, the New York Lawyer’s Deskbook consists of 24 chapters, each covering a different area of practice. Each chapter is intended as a starting point for new practitioners or for practitioners who may not have previously encountered a particular subject area. New attorneys will benefit from the clear, basic review of the necessary steps involved in handling a particular transaction or in understanding a particular subject area. By focusing on the handling of basic transactions, the Deskbook fills the gap between sketchy outlines, which are of little help to the novice attorney, and the voluminous reference sources, which very often are difficult to understand. Practitioners who are familiar with a subject area will benefit from the nu- 1998 (Supp. 2001) • approx. merous “Practice Guides” and from using the Deskbook as a refresher to rein- 1,600 pp., loose-leaf, 2 vols. force their own methods of practice. • PN: 4150 The Second Edition has expanded the New York Lawyer’s Deskbook into a List Price: $185 (incls. $13.70 tax) two-volume set. Incorporating the 2001 Supplement, it updates the original Mmbr. Price: $160 (incls. $11.85 tax) text; adds a new chapter on Elder Law; features coverage of the newly revised (Prices include 2001 Supplement) Article 9 of the UCC and a detailed summary of the new Estate and Gift Tax Legislation; chapters on zoning and land use and commercial real estate; and coverage of Kendra’s Law, electronic filing, amendments to the ethics rules, 2001 Supplement Mandatory Continuing Legal Education rules, external appeals of health plan PN: 51501 treatment denials, and the signature line requirement for court documents, List Price: $95 (incls. $7.04 tax) among others. Mmbr. Price: $85 (incls. $6.30 tax) Contents Criminal Law Corporate and Partnership Law Environmental Law Buying and Selling a Small Business Mechanic’s Liens • A step-by-step guide for Mortgages handling a basic case or Tax Implications of Forming a Corporation Mortgage Foreclosure transaction in 24 areas Arbitration under the Civil Practice Real Estate Transactions— of practice. Law and Rules Residential Property • Includes a new chapter Preparing for and Litigating the Will Drafting on Elder Law by Steven Plaintiff’s Personal Injury Case in Probate and Administration of M. Ratner, Esq. New York Decedents’ Estates What Is a Debt Collection Case? Banking Law Enforcement of Money Judgments Article 81 Guardianships Matrimonial Law Zoning and Land Use Labor Law Real Estate Transactions— General Introduction to Workers’ Commercial Property Compensation Law Elder Law Social Security Legislative Highlights

“. . . exactly the book I was looking for—and could not find—when I began to practice in New York.” Jill Nagy, Esq.

“. . . one of the finest deskbooks that has ever been published.” Lucian L. Lodestro, Esq. Lodestro, Vanstrom & Edwards

56 Journal | November/December 2001 New York Lawyer’s Formbook Second Edition

Compiled and written by leading practitioners from throughout New York State, the New York Lawyer’s Formbook consists of 20 sections, each covering a different area of practice. The purpose of the Formbook is to familiar- ize new practitioners, or practitioners who may not be familiar with a particular area of law, with forms and various other materials used when handling a basic transaction in that area of law. Included in the Formbook are copies of official forms, commonly used commercial forms, original forms developed by the authors and a wide variety of miscellaneous material which the authors use in their daily practice. Many of the sections contain sample clauses, worksheets, letters, checklists, charts, questionnaires and other informative exhibits. The Formbook is a companion volume to the New York Lawyer’s Deskbook. 1998 (Supp. 2001) • approx. 2,000 Many of the forms and materials included in the Formbook are referred to in pp., loose-leaf • PN: 4155 the Deskbook. Although both the Formbook and the Deskbook are excellent re- List Price: $185 (incls. $13.70 tax) sources by themselves, when used together their utility is greatly increased. Mmbr. Price: $160 (incls. $11.85 tax) This revised edition, which incorporates the 2001 Supplement, expands the original publication into a two-volume set. (Prices include 2001 Supplement) It adds a new chapter of Elder Law forms and a new chapter of Mort- gage documents. 2001 Supplement PN: 51551 Contents Social Security List Price: $95 (incls. $7.04 tax) Corporate and Partnership Law Criminal Law Mmbr. Price: $85 (incls. $6.30 tax) Buying and Selling a Small Business Environmental Law Tax Implications of Forming a Mechanic’s Liens Corporation Mortgage Foreclosure Arbitration under the Civil Practice Real Estate Transactions— Law and Rules Residential Property Preparing for and Litigating the Probate and Administration of Plaintiff’s Personal Injury Case Decedents’ Estates in New York Article 81 Guardianships Debt Collection Real Estate Transactions— Enforcement of Money Judgments Commercial Property Matrimonial Law Mortgage Documents General Introduction to Workers’ Elder Law Compensation Law

“. . . an excellent tool for every practi- • Includes over 2,000 pages of tioner.” forms, checklists and other Muriel S. Kessler, Esq. exhibits used by experienced Kessler and Kessler practitioners in their day-today practice. New York, NY • Covering 20 areas of practice, “Appropriate professional practice will the Formbook is an excellent surely be improved by the use of this To order companion to the New York volume.” Lawyer’s Deskbook. Call 1-800-582-2452 Lewis R. Friedman Source code: cl1471 Acting Supreme Court ® Justice New York State Bronx, NY, now deceased Bar Association

Journal | November/December 2001 57 and legal dictionaries as well as The or deal through any broker . . .” In ad- Oxford English Dictionary and Words dition, a comma after “employ” would LANGUAGE and Phrases. Is it possible that agita is avoid the awkwardness of the phrase a New York pronunciation of agitur, “employ through a broker.” TIPS a third person singular Latin subjunc- Question: The expression abide the tive meaning “an action has been event often comes up in legal opinions, brought”? (Ballentine’s Law Dictionary, but its meaning escapes me. Black’s B Y G ERTRUDE B LOCK 3d. ed. 1969.) I hope that this wild Law Dictionary (7th ed. 1999) does not guess turns out to be correct. define the expression. Attorney Gary uestion: These questions may Muldoon, who submitted the question, seem simple, compared to Question: Attorney R. M. Frome added that Words and Phrases for New some you receive, but I’m hop- sends the following sentence and asks, Q York lists exactly 10,000 references to ing you can shed some light on them: “Does this mean that the Tenant is or is abide the event! (1) When signing one’s name with a not in default?” Here is the sentence: suffix, is there one correct format? For “Landlord certifies that Tenant is not in Answer: The phrase abide the event example, my name is Robert S. default in payment of rent except basic has the same meaning in lay and legal Moskow II. My secretary invariably rent for May 2001.” use. Abide means “await,” and the changes the signature block to read Answer: This sentence is an exam- phrase implies that when certain cir- “Robert S. Moskow, II.” How should ple of what I call “negative ambiguity,” cumstances (“the event”) occur, a con- my name appear in the signature though that problem usually results clusion will be reached. The Oxford block? Is there one correct form or can from using two negatives when one af- English Dictionary says that the first use either form be used? (2) The abbrevia- firmative would do. The sentence of abide (with the same meaning of tion “cc” used to refer to carbon copy. means that the Tenant is in default of “await”) was in 1000 A.D. Currently, Now that carbon copies are no longer payment for only the basic rent for an appellate court stated that it meant used, is this still the proper way to in- May 2001. The sentence would have “on final outcome of litigation the side dicate copies? (3) The “night owls” in been clearer if it had been stated affir- finally successful in the first case our office are at a loss as to the mean- matively. should be successful in all.” (Words and ing of the word agita. We are not even Mr. Frome also objects to the use of Phrases, Permanent ed. 1946 updated sure that is the correct spelling. Can parentheses, except “in huge sentences annually.) you shed some light on this subject? that run on forever.” He submitted as From the Mailbag Answer: (1) In names that include a an illustration of the unnecessary use Arbitrator and mediator John E. suffix, the one you chose, Robert S. of parentheses the following sentence: Sands, of West Orange, N.J., e-mailed Moskow II, is preferred. See, for exam- Tenant warrants and represents to an amusing anecdote about double ple, the citation in The Associated Press Landlord that Tenant did not negotiate negatives, which were discussed in an Stylebook and Libel Manual at 102. The with, employ or deal through any bro- earlier “Language Tips” column. He New York Times Manual of Style and ker (except ABC Brokerage Co.) in con- recalled that a linguistics professor Usage prefers “Robert S. Moskow 2d.,” nection with this Lease. told his class, “In some languages, a but neither source includes a comma. Mr. Frome finds the use of paren- double negative can mean a positive or (2) In the current computer age, theses in that sentence objectionable, an intensified negative, but in no lan- “cc” is still used to mean “copies.” but it seems all right to me, although guage does a double positive yield a When only one copy is intended, the an argument can be made that they negative.” At that, a wag in the back single initial “c” is often substituted. were not necessary. In fact, no punctu- row remarked, “Yeah, sure.” The abbreviation “bc” stands for ation is required before or after the ex- Along those lines, I recall a comic “blind copy,” meaning that the original cept ABC Brokerage Co. phrase, al- strip showing an angel handing an recipient will not be informed that a though commas would be an English person a package of nouns, copy of the document (usually a letter) acceptable alternative to the parenthe- pronouns, adjectives, prepositions and has been sent. Another option is “xc” ses. conjunctions, and asking “Is that for “xerographic copy,” which is the One comment on the punctuation, enough to create your language?” The type of duplicate that is typically which Mr. Frome did not ask about: person answered, “Hopefully.” meant today. Although many reputable writers now GERTRUDE BLOCK is the writing spe- (3) As to the meaning of the word omit the final comma in a list, in legal cialist and a lecturer emeritus at agita, if that is the correct spelling, I writing that omission may cause litiga- Holland Law Center, University of have been unable to be of help in find- tion. A comma after employ would ob- Florida, Gainesville, FL 32611. Her ing either the meaning or the usage, al- viate any possible ambiguity: “. . . e-mail address is [email protected] though I have checked a number of lay Tenant did not negotiate with, employ,

Journal | November/December 2001 59 Daniel S. Lurie Sharon Toby Steiglitz SIXTH DISTRICT Russell B. Lusthaus R. Jason Straight Joseph J. Sadowski David Norman Mahler Damien Mcewen Sullivan NEW Suzanne Therese Mancuso George Sutcliffe SEVENTH DISTRICT Nathan Daniel Marinoff Ken Takii Jeffrey DeVoesick Timothy Lange Marlin Sarita Tankasali Patrick Joseph Iraca MEMBERS William Lee Martin Howard B. Teich Carl Frederick Ruoff Steven Joshua Matays Tamara Corene Thompson Roland R. Schindler WELCOMED Scott D. McCoy Christopher R. Tizzano Matthew Dempsey McGill William Morten Tong EIGHTH DISTRICT Michael Paul McGraw Lourdes M. Torres Sean William Connolly Troy A. Mckenzie Joachim Friedrich Trautmann Riana V. McLoughlin Sandra Treusdell NINTH DISTRICT Thomas Anthony McTigue James Pennington Truitt Dolly Caraballo FIRST DISTRICT Diego Ricardo Figueroa Kamyar Mehdiyoun Alan Craig Turner Trisha L. Cartelli Michele Simone Agdomar Thekla Britta Fischer Samuel Miles Meirowitz Monica Ullua Brian Dunefsky Joseph Paul Aiena Daniel Martin Ford Mark Douglas Meredith David Charles Vaccaro Joseph A. Egitto Prasanth Rao Akkapeddi Kenneth D. Freeman Bishoy Mikhail Edward Neeraja Viswanathan Louann Teresa Fernald Patricia Ann Alcamo Joseph Furst Mikhail Deirdre Dionysia Von Michael Edward Greene Dana Andrew Alden Sari Vivienne Gabay Stephen Alan Miller Dornum Andrew Hallerman Gali Arad Adam C. Galaburda Christopher Michael Mitchell Bobby Walia Mary Elizabeth Mohnach Hitoshi Aratani Elena Garcia De Madariaga Nneka I. Mitchell Luevenia Ann Wallace Melissa Mulrooney Anthony John Archbald Elena Maria Garcia Silvia Mabel Montalban Augustine Wong Angelique A. Pesce Jill Lauren Arnold Spencer Craig Gibbs Deidre Regina Moore Janet L. Woods Gary M. Reing David J. B. Arroyo Robert Anthony Gigante Junya Morishita Tembani S. Xaba Christina Marie Roberts Tinuade Tolulope Awe Alison Kim Gilgore Nadine A. Moustafa Xiang Xie Jason Paul Sautter Michael W. Bacal Sarah Telo Gillman Jennifer Mary Murray Kathryn K. Yang Stephen J. Schwartz Agnieszka R. Balaban Nicole Donna Girault Kristen Elizabeth Murray Sheila Marjory Zachman Motty Shulman Calethea Y. Barbour Peter Glass Yoram M. Nachimovsky David Zalman Christopher F. Smith John Robert Barlow Jeremy L. Goldstein Haleh Colleen Naimi Roberto Zapata Joel S. Stuttman Karen Leslie Barrett Christopher Paul Graham Peter G. Neiman Samantha Jody Zweig Helen Valkavich Shahram David Behin Maurice Hugh Gray Jacqueline Ann Newmark Aaron Ward Stephanie M. Beige Jacqueline Gottlieb Green Patricia Veronica Norton SECOND DISTRICT David James Ward Stacey Ann Bell Mae Watson Grote Oluwafunmilola Fehintola Malika Bibbs Gilbert James West Gregg M. Benson Divakar Gupta Odegbami Patricia A. Cavallaro Maxine Salzman Young Charles Douglas Berger Dan Hagevik Jeremiah S. Pam Laurie B. Cohen-Miller Carl Wolf Billek Steven Seunsuk Hahn Thomas Allen Parachini Jeanette C. Dalton TENTH DISTRICT Kristian Borg-Olivier Geoffrey Ross Hallock Andrew T. Paredes Grace Fung Shannon Theresa Ackerly Charles William Bradley John T. Hammer Eugene Han Park Robert Edward Giovinazzi Michelle I. Allen Ashley Whiteside Brauer Michael I. Handler Raymond Perez Elchin Nisson Ifraimov Robert D. Botticelli Jennifer Natalie Brodoff Joel Avi Hankin Margaret A. Phillips Aaron D. Jones Joshua Michael Brinn Christine Elizabeth Bromberg John D. Hartley Andrew Howard Pillersdorf Tamara Ivane Jordan James F. Burdi Shayne Lynne Brown Charles G. Heilbronn Alfred P. Placeres Omotayo Olugbenga Kuku Tara Michele Callahan Andrezej Jan Burba Ross L. Hirsch Kenneth G. Pogrin Catherine Cheryl Leung Paul Gerard Cane Eugene P. Caiola David Sangyong Hong Ross George Pooley Paul S. Levine Danielle Simone Chandonnet Mary Alice Callaghan Gregory B. Horton Cristina Marie Posa Ashmali P. Mckay Kristin B. Church Anne P. Callender Sherilyn Ann Hozman Harris L. Present Molly K. Mcshane Joanne M. Cook R. Daniel Canova Raymond Kim Joe Alan Pressman Nabisubi N. Musoke Tricia Marie Criscito James Howard Cantrell Melonie S. Jurgens Susan E. Quinn Nicole Alisa Neckles Kelley Dowd Curley Joseph Robert Cassidy Nadia Kaddour Asim Rehman William G. O’Neill Michael G. Diaz Rachel Felicity Castelino Brendan R. Kalb Jamie Reiffel Beth A. Ornstein Mairead M. Duffy Alison Julie Chen Michael G. Kalish Daniel R. Renehan Edwin A. Ossa Lauren T. Emr Kevin Francis Clines Stephen Joshua Katz Ingrid Reynoso Sebastian J. Papaleo Steven Anthony Giampaolo Alexandre D. Cohen John Hagop Kedeshian Denise Elizabeth Rocca Nicole M. Robinson Gilbert Jackson Hardy Joshua David Cohen James Michael Keim Jennifer Lauren Rodburg Judith Rosa Deborah A. Harper Jason F. D. Collins Kevin Patrick Kelly Jennifer Elizabeth Rolfe Amy Lee Rothschild Erik Lloyd Herz Owen Lapidus Cyrulnik Yelee Caroline Kim Matthew David Root Deirdre J. Sheridan Natalie V. Holder John Damasco Harold K. King Avinoam Yackov Rosenfeld Nicole Ann Tate Erica L. Ingebretsen Philip Anthony D’ancona Antonia M. Kirkland Peter James Rossi Lucienne N. Taylor William Kevin Joseph Jessica A. Davis Jasen Phillip Kisber Christopher Stephen Thomas Vays Sandra C. Maliszewski Pierre Marc Davis Ilana Michelle Klein Rothemich George T. Vishnevetsky Amy B. Marion Gilbert De Dios Lori Ann Klucsarits Lisa Gabrielle Rothman Richard B. Martin Wendy Amoreena Deems Thomas G. Komaromi Dan Joseph Rozenblatt THIRD DISTRICT Dino Ernest Medina Galab B. Dhungana Daniel Brian Kosove Lina Rubin Samuel John Finnessey Jimmy Montes James Anthony Diehl Wey-Wey Elaine Kwok Cecilia E. Rutherford Thomas J. Gosdeck Louis A. Narotsky Stephanie Dobozin Magdale Linda Labbe Omri Sachs Gary G. Heffernan Tricia A. Odierna Avis Bonita Edwards Martin Lebwohl Genevieve P. Salvatore Michael J. Kink Steven Alexander Penkovsky Jacqueline Sue Edwards Marc B. Ledesma Kurt N. Schacht Michael P. Smith W Marilynn Pierre Sheila M. Eisenberg Christina Lee Mary Blume Scott Steven G. Somlo Sandro Razzano Jason Stanley Elphick Catalina Legarre Rachel Amy Shaffer Donna Rodecker Kathleen Marie Emberger Lindsey Shapss Leibowitz Douglas E. Shayne FOURTH DISTRICT Daniel J. Scher Michael Seth Etra Kim Levy Michael Curtis Shumway Lawrence H. Brinker Marshal Dean Schichtman Natalie Diane Everaert Joseph Michael Lewis Dan Sivertsen Steven G. Natoli N. Patricia Siegel Andrew Lawrie Fabens Jonathan Paul Lindroos Jennifer L. Sklar Lisa B. Singer Sean Everett Fairweather Jillian Littell Eileen Rose Skuse FIFTH DISTRICT Glenn Daniel Smith Kristen Leigh Fancher Jojo Chou Liu Lisa Michele Smith Muhammad Akram Faizer Sheila Madonna Stebner Kevin M. Favreau Tyson Marc Lomazow Anna Yurievna Smorodskaya Thane Joyal Bradford J. Tiernan Sean Craig Feller Claudia Patricia Lovas Karen Solimando Paul S. Micho Edward M. Fenk Michael Scott Loy David Frederick Sparks Walter N. Munson ELEVENTH DISTRICT David H. Fiestal Kendal R. Ludden Craig Matthew Spruce Sean Dustin Ariello Rachelle Steencken Rodney Rudolph Austin

60 Journal | November/December 2001 Andrea Brochetelli Meredith Gillian Kopelow Samuel Halpern Robert E. Burke Adetokunbo Adelani Oseni Matthew Adam Kaplan Anthony Como Angela Marie Redman Elizabeth Anne Keane In Memoriam Elias Nikolaos Fillas Eric Torres Kevin M. Kenneally Richard A. Aronow Irving L. Gartenberg Paula Andrea Forero Charisee Mary Lee Jersey City, NJ New York, NY Kerry S. Glasgold OUT-OF-STATE Chui-jae Lee Steven Auderieth Daniel B. Gazan Monica Gohrig Christoffer G. Ahlstrom Gary M. Lobel Burlington, VT Glen Cove, NY Elizabeth Han Alla Ashkinazi Anthony Harris Lowenberg Kent H. Brown Joseph Jaspan Abdool K. Hassad Catherine Florence Augustson Timothy Patrick Lydon Slingerlands, NY Woodmere, NY Francis Emerson Hemmings James Kimball Baden Glenn Machado Lawrence M. Herrmann William Basso Eugene James Mincone Richard J. Couch Weirong Lin Rita Hill Wolfgang Bergthlaer Katherine Miranda Buffalo, NY Flushing, NY Tonja F. Jordan Diane L. Bucci Jennifer Lynn Morris George L. Cruser Nazareth Magarian Kyoung Min Kang Donya Janae Bullock Chuka Steve Okenwa Burke, VA Bronxville, NY Vance Thomas Elliott Kuhner Colleen E. Cain Michael John Policastro Dwight D. Darcy Anthony R. Mansfield Sejal R. Mehta Antonio Caruso Shanna Nichet Price-Wright Jersey City, NJ New York, NY Michael Ian Mostoff Suzanne Pyun Victor Casagrande Paul H. Davis Daniel F. Mathews Lorraine O’Kane Clement Chien-ming Chang Inna Reznik Syracuse, NY Syracuse, NY Laurie Denise Olds Michael Andrew Columbo Jo Lynn Ricks Kumar S. Paturi Thomas Matthew Comerford Michael D. Ritigstein Carol K. Demitz Peter P. Peterson Danielle Terese Plescia Alfred C. Constants Aida Mounir Saba New York, NY Garden City, NY Maximiliano Rinaldi Jason S. Crane Maura Santiago-Ducos Lawrence R. Dittelman Warren H. Rotert Gaynor J. Ryan William Vincent Decordova Brett Stewart Silverman White Plains, NY Ramsey, NJ Joann S. Voich Samantha Beth Diesenhouse Juliet Suzanne Sorensen Jon C. Dupee Clarin Schwartz Susan Weerasinghe Jutta Maria Dissen Jonathan Tivadar Allan Soros Goshen, NY New York, NY Amy Yi-ju Wu Camille Vanessa Donald Edward Thompson Joan L. Ellenbogen Ferdinand Tremiti M. Douglas Duncan Robert J. Tighe New York, NY Rochester, NY TWELFTH DISTRICT Mitchell Scott Feder Joshua A. Tinkelman Lawrence F. Fay Vincent West Beatriz Alonso David Feinsilver Michael S. Turner White Plains, NY Port Washington, NY Christopher John Sean M. Fisher Jan Nicolaus Ullrich Blira-Koessler Kelly J. Garrone Elise Michele Weissman Arlene Eva Fried Andrew S. Zucker Ylber I. Dauti James P. Geocaris Dana Forest Wolfe New York, NY Somerville, NJ Anyekache A. Hercules Elizabeth Ann Goss Richard K. Wulff Lucio Galvis David Ziskind Bay Shore, NY

CONTINUED FROM PAGE 64 , in-, non-, or un-. “The lack of consis- Writing should be economical, not 1. Mortimer Levitan, Some Words That tency” or a “negative” anything be- clipped, casual, or abrupt. Sometimes Don’t Belong in Briefs, Wis. L. Rev. 421, Vol. (1960). comes (depending on your meaning) length enhances readability, exposes 2. Do not use an apostrophe if the pos- “The inconsistency” or “dis-X,” “non- meaning, and increases persuasion. sessive looks awkward: “Subdivi- X,” or “un-X,” depending on the word. President Abraham Lincoln could sion A’s remedies” becomes “The Delete “of” in dates and years. “Four have cut a few words at Gettysburg by remedies of Subdivision A.” “The saying, “We cannot dedicate, conse- New York City Police Department’s years of prison” becomes “Four years’ (NYPD) policies” becomes “The imprisonment.” Or “Four years in crate, or hallow this ground.” But he policies of the New York City Police jail.” “Ten days of notice” becomes said it better by expanding his parallel Department (NYPD).” “Ten days’ notice.” “Forty-six years of structure: “We cannot dedicate, we 3. Writers may use whose for people age” becomes “Forty-six years old.” cannot consecrate, we cannot hallow and things. We need not rewrite our “October of 1999” becomes “October this ground.” President George W. national anthem—honoring a flag “whose broad stripes and bright 1999” (not “October, 1999”). Bush could have let it go with “We will stars . . . were so gallantly stream- Lose “of which” legalisms. “Small not tire, falter, or fail.” Instead, he ing.” Claims Court, the jurisdiction of which stressed America’s resolve following 4. Address Before Joint Session of Con- is often in doubt, is . . . .” becomes September 11, 2001, by saying, “We gress, September 20, 2001. “Small Claims Court, whose jurisdic- will not tire, we will not falter, and we tion is often in doubt, is . . . .”3 “The will not fail.”4 GERALD LEBOVITS, is a judge of the contract Jones signed, which contract Housing Part, New York City Civil The best writing is not always the Court. An adjunct professor of law provided that . . . .” becomes “The con- shortest writing. The best writing, and the Moot Court faculty advisor at tract Jones signed provided that . . . .” however, is always fat-free. Trimming New York Law School, he is the au- “After negotiating, Jones and Smith fat is hard. A waist is a terrible thing to thor of Advanced Judicial Opinion Writ- signed a stipulation, which stipulation mind. But you can safely remove of ing, a handbook for New York State’s resolved their differences” becomes without paying too high (of?) a price. trial and appellate courts. This col- “After negotiating, Jones and Smith Offing the of will give your readers umn is adapted from that handbook. signed their stipulation, which re- more time to reflect on your arguments His e-mail address is solved their differences.” Or “After ne- while they relax in front of the TV [email protected]. gotiating, Jones and Smith signed a watching All My Children. And that ad- stipulation that resolved their differ- vice is not off the wall. ences.”

Journal | November/December 2001 61 Jean E. Nelson II, Associate Director, Lawyer Assistance Program [email protected] Ray M. Lopez, Director, HEADQUARTERS Jean Marie Grout, Staff Attorney, [email protected] [email protected] Management Information Systems STAFF Leslie A. Fattorusso, Staff Attorney, John M. Nicoletta, Director, [email protected] [email protected] E-MAIL ADDRESSES Cheryl L. Wallingford, Program Manager, Ajay Vohra, Technical Support Manager, [email protected] [email protected] Daniel J. McMahon, Assistant Director, Paul Wos, Data Systems and Telecommunications Publications, [email protected] Manager, [email protected] Executive Staff Patricia B. Stockli, Research Attorney, Margo J. Gunnarsson, Database Services Patricia K. Bucklin, Executive Director, [email protected] Administrator, [email protected] [email protected] Governmental Relations Marketing John A. Williamson, Jr., Associate Executive C. Thomas Barletta, Director, Richard Martin, Director, Director, [email protected] [email protected] [email protected] L. Beth Krueger, Director of Administrative Ronald F. Kennedy, Assistant Director, Media Services and Public Affairs Services, [email protected] [email protected] Bradley G. Carr, Director, Kathleen R. Baxter, Counsel, Graphic Arts [email protected] [email protected] Roger Buchanan, Manager, Frank J. Ciervo, Associate Director, Lisa Bataille, Administrative Liaison, [email protected] [email protected] [email protected] William B. Faccioli, Production Manager, Amy Travison Jasiewicz, Editor, State Bar News, Kathleen M. Heider, Director of Meetings, [email protected] [email protected] [email protected] Human Resources Membership Barbara Beauchamp, Web Site Content Editor Richard V. Rossi, Director, Patricia K. Wood, Director, [email protected] [email protected] [email protected] Accounting Law Office Economics and Management Pro Bono Affairs Kristin M. O’Brien, Director of Finance, Stephen P. Gallagher, Director, Diane Burman, Director, [email protected] [email protected] [email protected] Anthony M. Moscatiello, Controller, Law, Youth and Citizenship Program [email protected] Gregory S. Wilsey, Director, Continuing Legal Education [email protected] Terry J. Brooks, Director, Emil Zullo, Assistant Director, [email protected] [email protected]

THE NEW YORK JOURNAL BOARD BAR FOUNDATION MEMBERS EMERITI

2001-2002 OFFICERS DIRECTORS s a tribute to their outstanding service to Richard J. Bartlett John P. Bracken, Islandia Aour Journal, we list here the names of President Cristine Cioffi, Niskayuna each living editor emeritus of our Journal’s Board. 1 Washington Street Angelo T. Cometa, New York City Richard J. Bartlett P.O. Box 2168 Maryann Saccomando Freedman, Buffalo Coleman Burke Glens Falls, NY 12801-2963 Robert L. Haig, New York City John C. Clark, III Emlyn I. Griffith Jules J. Haskel, Garden City Angelo T. Cometa Vice President Paul Michael Hassett, Buffalo Roger C. Cramton 225 North Washington Street John R. Horan, New York City Maryann Saccomando Freedman Rome, NY 13440-5724 Susan B. Lindenauer, New York City Emlyn I. Griffith H. Glen Hall Patricia K. Bucklin Robert L. Ostertag, Poughkeepsie Secretary Paul S. Hoffman Joshua M. Pruzansky, Islandia One Elk Street, Albany, NY 12207 Charles F. Krause Thomas O. Rice, Garden City Philip H. Magner, Jr. Randolph F. Treece M. Catherine Richardson, Syracuse Treasurer Wallace J. McDonald Hon. Shira A. Scheindlin, New York City 445 Broadway J. Edward Meyer, III Albany, NY 12207 Justin L. Vigdor, Rochester Albert M. Rosenblatt Robert J. Smith Lawrence E. Walsh

62 Journal | November/December 2001 Members of the House of Delegates 2001-2002 First District Third District Edmunds, David L., Jr. Alcott, Mark H. Ayers, James B. Eppers, Donald B. OFFICERS Baker, Theresa J. Bauman, Harold J. Evanko, Ann E. Barasch, Sheldon Cloonan, William N. Evans, Sue M. Batra, Ravi Connolly, Thomas P. * Freedman, Maryann Saccomando † Bing, Jonathan L. Dorsey, Richard J. Gerstman, Sharon Stern Bonner, Thomas J. Flink, Edward B. Gold, Michael A. Brett, Barry J. Friedman, Michael P. Graber, Garry M. Buckley, Hon. John T. Higgins, Patrick J. †* Hassett, Paul Michael Steven C. Krane, President Cashman, Richard Kelly, Matthew J. McCarthy, Joseph V. New York Chambers, Hon. Cheryl E. Klein, Frank Mohun, Michael M. Christian, Catherine A. LaFave, Cynthia S. O’Connor, Edward J. Lorraine Power Tharp, President-Elect * Cometa, Angelo T. Leistensnider, Ruth E. O’Mara, Timothy M. Cuyler, Renaye B. Lester, Kelly Mooney Palmer, Thomas A. Albany Davis, Bonni G. Maney, Hon. Gerard E. Pfalzgraf, David R. Frank M. Headley, Jr., Treasurer Davis, Evan A. Miranda, David P. Porcellio, Sharon M. DeFritsch, Carol R. Murphy, Sean Scarsdale Eisman, Clyde J. Netter, Miriam M. Ninth District Eppler, Klaus Pierro, Louis W. Aydelott, Judith A. A. Thomas Levin, Secretary * Fales, Haliburton, 2d Samel, Barbara J. Fedorchak, James M. Mineola Farrell, Joseph H. † Tharp, Lorraine Power Gardella, Richard M. Field, Arthur Norman Tippins, Timothy M. Geoghegan, John A. Finerty, Hon. Margaret J. Treece, Hon. Randolph F. Golden, Richard Britt Fink, Rosalind S. * Williams, David S. Goldenberg, Ira S. * Forger, Alexander D. * Yanas, John J. Headley, Frank M., Jr. Freedman, Hon. Helen E. Herold, Hon. J. Radley * Gillespie, S. Hazard Fourth District Klein, David M. Goldstein, M. Robert Cioffi, Cristine Kranis, Michael D. Gross, Marjorie E. Clements, Thomas G. Longo, Joseph F. Vice-Presidents Haig, Robert L. Coffey, Peter V. Manley, Mary Ellen First District: Handlin, Joseph J. Doern, James E D * Miller, Henry G. Harris, Martha W. FitzGerald, Peter D. Mosenson, Steven H. Mark A. Alcott, New York * Heming, Charles E. Harper, David A. O’Leary, Diane M. Stephen D. Hoffman, New York Hirsch, Andrea G. Hoye, Hon. Polly A. * Ostertag, Robert L. Second District: Hoffman, Stephen D. Keniry, Hon. William H. Riley, James K. Horowitz, Steven G. Russell, William E. Stewart, H. Malcolm, III Edward S. Reich, Brooklyn Jacoby, David E. Tishler, Nicholas E. Walker, Hon. Sam D. Third District: Jaffe, Barbara James B. Ayers, Albany Kilsch, Gunther H. Fifth District Tenth District * King, Henry L. Doerr, Donald C. Abrams, Robert Fourth District: Kougasian, Peter M. Dwyer, James F. Asarch, Hon. Joel K. Peter D. FitzGerald, Glens Falls † Krane, Steven C. Fennell, Timothy J. †* Bracken, John P. Fifth District: Landy, Craig A. Fetter, Jeffrey M. Filiberto, Hon. Patricia M. Leber, Bernice K. Getnick, Michael E. Franchina, Emily F. James F. Dwyer, Syracuse Lieberman, Ellen Gingold, Harlan B. Gutleber, Edward J. Sixth District: Lindenauer, Susan B. Klein, Michael A. Kramer, Lynne A. Hon. Eugene E. Peckham, Binghamton * MacCrate, Robert Kogut, Barry R. Levin, A. Thomas Mandell, Andrew Michaels, Joanne E. Levy, Peter H. Seventh District: Miller, Michael Priore, Nicholas S. Meng, M. Kathryn C. Bruce Lawrence, Rochester Miller, Sonia E. Rahn, Darryl B. Mihalick, Andrew J. Eighth District: Minkowitz, Martin Renzi, David A. Monahan, Robert A. Opotowsky, Barbara Berger †* Richardson, M. Catherine Perlman, Irving Joseph V. McCarthy, Buffalo * Patterson, Hon. Robert P., Jr. Rizzo, James S. †* Pruzansky, Joshua M. Ninth District: Paul, Gerald G. Uebelhoer, Gail Nackley Purcell, A. Craig Joseph F. Longo, White Plains Pickholz, Hon. Ruth †* Rice, Thomas O. Quattlebaum, Poppy B. Sixth District Roach, George L. Tenth District: Raubicheck, Charles J. Beehm, Angelina Cutrona Rothkopf, Leslie A. Craig Purcell, Hauppauge Rayhill, James W. Denton, Christopher Spellman, Thomas J., Jr. Eleventh District: Rifkin, Richard Drinkwater, Clover M. Tully, Rosemarie Robertson, Edwin D. Folmer, John B. Walsh, Owen B. Gary M. Darche, Flushing Roper, Eric R. Gacioch, James C. Twelfth District: Rosner, Seth Lewis, Richard C. Eleventh District Lawrence R. Bailey, New York Rubenstein, Joshua S. Mayer, Rosanne Bohner, Robert J. Safer, Jay G. Peckham, Hon. Eugene E. Darche, Gary M. Scarborough, Robert H. Reizes, Leslie N. Dietz, John R. Schumacher, H. Richard Wayland-Smith, Tina Fedrizzi, Linda F. * Seymour, Whitney North, Jr. Glover, Catherine R. Members-at-Large of the Silkenat, James R. Seventh District Nashak, George J., Jr. Sloan, Pamela M. Bleakley, Paul Wendell Nizin, Leslie S. Executive Committee Souther, Eugene P. Buzard, A. Vincent Terranova, Arthur N. Stenson, Lisa M. Castellano, June M. Wimpfheimer, Steven Sharon Stern Gerstman Vitacco, Guy R., Sr. Clifford, Eugene T. Michael E. Getnick Yates, Hon. James A. Dwyer, Michael C. Twelfth District Matthew J. Kelly Grossman, James S. Bailey, Lawrence R., Jr. Second District Harren, Michael T. Friedberg, Alan B. Gunther H. Kilsch Cerchione, Gregory T. Heller, Cheryl A. Kessler, Muriel S. Bernice K. Leber Dollard, James A. Lawrence, C. Bruce Kessler, Steven L. Susan B. Lindenauer Doyaga, David J. †* Moore, James C. Millon, Steven E. Fisher, Andrew S. * Palermo, Anthony R. †* Pfeifer, Maxwell S. Hesterberg, Gregory X. Reynolds, J. Thomas Schwartz, Roy J. Kamins, Barry * Van Graafeiland, Hon. Ellsworth Torrent, Damaris Esther Lashley, Allen * Vigdor, Justin L. Torres, Austin Morse, Andrea S. Wallace, David G. Reich, Edward S. †* Witmer, G. Robert, Jr. Out-of-State † Delegate to American Bar Association House of Delegates Sunshine, Nancy T. Chakansky, Michael I. * Past President Terrelonge, Lynn R. Eighth District * Walsh, Lawrence E. Attea, Frederick G. Doyle, Vincent E., III

Journal | November/December 2001 63 THE LEGAL “Of” With Their Heads: Concision WRITER BY GERALD LEBOVITS

hope this question is not off of the State of New York” becomes “The New the purpose of becomes for, to. Has the op- wall, but did you ever see the TV York State Supreme Court.” tion of becomes may. Have a need of be- Isoap “All of My Children”? If you Normalize nominalizations. Good comes need. In advance of becomes be- did, you are the only one. The show is writers prefer verbs to nouns. Nomi- fore. In back of becomes behind. In case of All My Children. Of is one word writers nalizations turn verbs into nouns. becomes if. In excess of becomes more can cut. “Criminal possession of stolen prop- than, over. In front of becomes before. In To be concise is to use only neces- erty” becomes “Criminally possessing furtherance of becomes to further. sary words. To be succinct is to use stolen property.” “The forensic expert In hopes of becomes to. In lieu of be- only necessary content. The goal of carried out an analysis of the blood comes instead of. In receipt of becomes concision and succinctness is to get the sample” becomes “The forensic expert have received. In terms of becomes at, by, most thoughts in the shortest space— analyzed the blood sample.” “The so- for, in, with. In the absence of becomes to make every word tell. Write as if lution was the result of the paralegal’s absent. In the amount of becomes for. In you will be paid more if you use fewer careful inspection of the papers” be- the course of becomes during. In the di- words. Do not write “2/8” when you comes “The paralegal solved the prob- rection of becomes toward. In the event of can write “1/4.” Brevity is not simply lem by inspecting the papers care- becomes if. In the immediate vicinity of about the number of pages. Brevity is fully.” “He committed forgery by the becomes near. In the interests of be- about everything, down to the size of writing of a bad check” becomes “He comes for. In the midst of becomes amid. the word and the number of syllables. committed forgery by writing a bad In the nature of becomes like. In the Lengthy, thick briefs always lend check.” neighborhood of becomes about, near. In meaning to the phrase “weight of au- All, both. Delete of after all (“All the process of, the process of (delete en- thority.” Get right to the point in an in- New York loves baseball”) and both ex- tirely). stant, er, instantly. cept when a pronoun follows (“all of Which words can be cut? Lots of us studied legal writing”; “both of us Brevity is about everything, ‘em: “A discussion of some words that studied legal writing”). down to the size of the word don’t belong in briefs could probably What of it? Delete of after alongside, and the number of syllables. be condensed into this concise state- inside (unless you mean “in less than”), ment: about fifty percent of them.”1 off, and outside. Use except for to replace Of is a big part of the wordiness outside of. “Except for Judge X, who Is comprised of becomes consists of. problem. Deleting of is a big part of the was appointed, all the judges in the On the basis of becomes after, because of, solution. Here are some ways to get county were elected.” by, on. On the grounds of becomes be- out of of. Delete “as of.” “The attorney has not cause. On the part of becomes among, by. Play with possessives. “The foregoing filed the motion as of yet” becomes Regardless of whether or not becomes re- constitutes the order and decision of “The attorney has not filed the motion gardless whether. The act of (delete en- the court” becomes “This (or the above) yet. “Or “The attorney has not filed the tirely). The issue of [or “as to”] whether is the court’s order and decision.”2 motion.” becomes whether. The question of Invert or rearrange. “I am a fan of the Off “of” prepositional phrases. Phrases whether or not becomes whether. The oc- Beatles” becomes “I am a Beatles fan.” to rephrase include the following: currence of (delete entirely). With the ex- “Because of Judge B’s status as a Along the lines of becomes like. As a re- ception of becomes except. judge” becomes “Because Judge B is a sult of becomes because. At the rear of be- Eliminate “of” abstractions. Abstrac- judge.” “You’re not the boss of me” becomes behind. By means of becomes by. tions include type of, kind of, matter of, comes “You’re not my boss.” “Joint By reason of becomes because of. By state of, factor of, system of, sort of, nature Committee to Preserve the Indepen- virtue of becomes because of. Concerning of. “He is the kind of [sort of, type of] dence of the Judiciary” becomes “Joint the matter of becomes about. During the person who would . . . .” becomes “He Committee to Preserve Judicial Inde- course of becomes during. First of all be- would . . . .” pendence [or an Independent Judi- comes first. For the duration of becomes Negative “of.” A negative phrase that ciary].” “The Supreme Court of the during. For the period of becomes for. For uses an of becomes, with a prefix, a dis- CONTINUED ON PAGE 61

64 Journal | November/December 2001