I Don't Need Your Authority

JUNE 2010 VOL. 82 | NO. 5 JournalNEW YORK STATE BAR ASSOCIATION

Also in this Issue I Don’t Need Family Health Care Decisions Act Kendra’s Law Your Authority Electronically Stored The Use of Learned Treatises in Information New York State Courts Point of View: Judicial Reform II by Eric Dinnocenzo Corporate Governance 866-FUNDS- NOW

Pre-Settlement Finance BESTSELLERS FROM THE NYSBA BOOKSTORE June 2010

Attorney Escrow Accounts – Rules, New York Practice Monograph Series Regulations and Related Topics, 2009–2010 NEW! Third Edition This 16-book set comprises chapters excerpted from the This new edition provides useful guidance on escrow 2009–2010 edition of the New York Lawyer’s Deskbook Consumer Bankruptcy, 2nd Edition and Formbook. It is an invaluable reference for practitioners funds and agreements, IOLA accounts and the Lawyers’ This new edition covers consumer bankruptcy from who work in or are new to these areas. Fund for Client Protection. The greatly expanded appendix both debtor and creditor perspectives. It provides features statutes, regulations and forms. PN: 4009GP / Member $400 / List $500 official and procedural forms, as well as the local PN: 40269 / Member $45 / List $55 / 330 pages bankruptcy rules for New York’s federal districts. Includes CD of forms, regulations and statutes The Plaintiff’s Personal Injury Action in PN: 40456 / Member $125 / List $170 / 770 pages in the appendix. New York State This treatise answers the tough questions faced by the Counseling Content Providers Best Practices in Legal Management plaintiff’s personal injury attorney every day – liens, in the Digital Age The most complete and exhaustive treatment of the busi- special needs trusts, structures, Medicare and Medicaid, Written and edited by experienced media law ness aspects of running a law firm available anywhere. conflicts of interest, workers’ compensation, no-fault, attorneys from California and New York, this book PN: 4131 / Member $139 / List $179 / 498 pages is an invaluable guide for anyone in the field of bankruptcy, representing a party in infancy, incompe- Choose a CD or USB flash drive containing all the forms. pre-publication review as well as attorneys respon- tency and wrongful death. sible for vetting their clients’ or firm’s Web site. PN: 4181 / Member $175 / List $225 / 1,734 pages Foundation Evidence, Questions and Includes forms, checklists and charts on CD. Courtroom Protocols, Second Edition PN: 4063 / Member $50 / List $65 / approx. 430 The Practice of Criminal Law Under pages (2009) the CPLR and Related Civil Procedure The second edition, along with its collection of Statutes, Fifth Edition (2009) New York Municipal Formbook, forms and protocols, has four new chapters: Pro Se A book that pulls together the rules and provisions of 3rd Edition, Revised 2010 Defendants, Courtroom Closure, Burdens of Proof and law not covered in NY’s CPL or Penal Law. (Forms on CD) Summations. PN: 40698 / Member $45 / List $55 / 206 pages More than 230 new forms expand the scope of PN: 41078 / Member $50 / List $60 / 172 pages the premiere formbook for anyone whose practice touches on municipal law – includes topics such Medical Malpractice in New York, Public Sector Labor and Employment as agreements, bidding, environmental law, FOIL, Third Edition Law, Third Edition (2009 Supplement) labor law, liability, permits and zoning. PN: 41606 / 2010 / Member $150 / List $185 This book provides advanced insight into many This landmark text has been revised to include recent aspects of the trial of a medical malpractice case. developments in case and statutory law that are useful NYSBA Practice Forms on CD-ROM PN: 41309 / Member $95 / List $125 / 654 pages to practitioners representing public sector employees, unions or management. 2009–2010 More than 600 of the forms from Deskbook and PN: 42057 / Member $150 / List $185 / 1,550 pages Model Partnership Agreements (2009) Formbook used by experienced practitioners in Here is a guide for solo and small-firm practitioners their daily practice. The advanced installation pro- who wish to establish a partnership or other business Real Estate Titles, Third Edition gram allows forms to be used in Adobe Acrobat® form, or to formalize relationships in a law practice An all-time bestseller, this edition is edited by James M. Reader,™ Microsoft Word® or WordPerfect.® that has no formal structure. Pedowitz, Esq., a nationally renowned expert in real PN: 615010 / 2009-2010 / Member $280 / PN: 41358 / Member $50 / List $60 / 142 pages estate law and title insurance, and authored by some of List $315 the most distinguished practitioners in the field. It’s an Protecting the Catastrophically New York Lawyer’s Deskbook essential guide to the many complex subjects surrounding real estate law. Injured Personal Injury Plaintiff’s and Formbook (2009–2010) PN: 42101 / Member $150 / List $180 / 1,632 pages Recovery Award-winning and packed with new information and forms A must-have for personal injury attorneys, this for use in over 25 practice areas. book provides the most current insights into the Deskbook PN: 4150 / Member $295 / List $375 field of structured settlements and analyzes the Formbook PN: 4155 / Member $295 / List $375 alternatives available to protect catastrophically injured plaintiffs’ recoveries. COMING SOON! PN: 42230 / Member $20 / List $30 / 82 pages Insurance Law Practice, 2010 Revision Post-Trial Practice

Expand your professional knowledge

1.800.582.2452 www.nysba.org/pubs Mention Code: PUB0757

BOARD OF EDITORS EDITOR-IN-CHIEF David C. Wilkes Tarrytown e-mail: [email protected] Mary Grace Conneely Monticello Philip H. Dixon Albany Elissa D. Hecker Irvington Jonathan Lippman New York City Eileen D. Millett New York City Gary A. Munneke White Plains Thomas E. Myers Syracuse John B. Nesbitt Lyons Gary D. Spivey Colorado Springs, Colorado Sharon L. Wick Buffalo MANAGING EDITOR Daniel J. McMahon Albany e-mail: [email protected] ASSOCIATE EDITORS Bran Noonan New York City Philip C. Weis Oceanside

PUBLISHER Patricia K. Bucklin Executive Director

NYSBA PRODUCTION STAFF ASSISTANT EDITOR Joan Fucillo DESIGN Lori Herzing Erin Corcoran EDITORIAL OFFICES One Elk Street Albany, NY 12207 (518) 463-3200 FAX (518) 463-8844 www.nysba.org

ADVERTISING REPRESENTATIVE Network Media Partners Bruce Tackett Executive Plaza 1, Suite 900 11350 McCormick Road Hunt Valley, MD 21031 (410) 584-1960 e-mail: [email protected]

EUGENE C. GERHART (1912 – 2007) Editor-in-Chief, 1961–1998 CONTENTS JUNE 2010

I DON’T NEED YOUR AUTHORITY The Use of Learned Treatises in New York State Courts BY ERIC DINNOCENZO 10

18 New York’s Family Health Care Decisions Act The Legal and Political Background, Key Provisions and Emerging Issues DEPARTMENTS BY ROBERT N. SWIDLER 5 President’s Message 28 Assisted Outpatient Treatment: May the Sun Continue to Shine on Kendra’s Law 8 CLE Seminar Schedule 15 Burden of Proof BY MARTIN SCHOENFELD BY DAVID PAUL HOROWITZ 34 Navigating and Avoiding Sanctions 50 Meet Your New Officers for Failing to Preserve Electronic 52 Language Tips Information BY GERTRUDE BLOCK 54 New Members Welcomed BY KELLY D. KUBACKI AND REGINA J. JYTYLA 60 Classified Notices 40 Point of View: Judicial Reform and 60 Index to Advertisers the Test of Time 63 2010–2011 Officers BY ROBERT H. TEMBECKJIAN 64 The Legal Writer BY GERALD LEBOVITS 44 Corporate Governance: An Expert Can Make a Difference in Litigation BY SHERYL L. HOPKINS, H. STEPHEN GRACE, JR., AND JOHN E. HAUPERT CARTOONS © CARTOONRESOURCE.COM

The Journal welcomes articles from members of the legal profession on subjects of interest to New York State lawyers. Views expressed in articles or letters published are the authors’ only and are not to be attributed to the Journal, its editors or the Association unless expressly so stated. Authors are responsible for the correctness of all citations and quotations. Contact the editor-in-chief or managing editor for submission guidelines. Material accepted by the Association may be published or made available through print, film, electronically and/or other media. Copyright © 2010 by the New York State Bar Association. The Journal ((ISSN 1529-3769 (print), ISSN 1934-2020 (online)), official publication of the New York State Bar Association, One Elk Street, Albany, NY 12207, is issued nine times each year, as follows: January, February, March/April, May, June, July/ August, September, October, November/December. Single copies $20. Periodical postage paid at Albany, NY and additional mailing offices. POSTMASTER: Send address changes per USPS edict to: One Elk Street, Albany, NY 12207.

NYSBA Journal | June 2010 | 3

PRESIDENT’S MESSAGE STEPHEN P. YOUNGER

Shaping the Future of Our Profession

hese are challenging times to change happen? In my view, we as the lead a bar association. Over the organized bar have a duty to lead in Tlast two years, our profession challenging times like this. has been under extraordinary stress. Toward this end, the theme for my While we are seeing signs of a turn- term is “Shaping the Future of Our around, the effects of the “great reces- Profession.” We will advance this goal sion” are still quite evident. in several ways. Most important, we Since April 2008, the legal sector has are launching a Task Force on the lost more than 50,000 jobs. Law firms Future of the Legal Profession to exam- around the country have experienced ine the structural causes of the difficul- declining revenues and problems in ties our profession has experienced City, where I remain today – 30 years getting clients to pay their bills. Solo and propose best practices to help our later. and small firm lawyers have struggled members prepare for a challenging Having benefited from positive to manage their firms on their own, future. As a bar association, we are mentoring, I believe that we each have while experiencing difficulties main- obliged to be stewards of the profes- an obligation to give back – an obliga- taining their caseloads. At the same sion for the benefit of our next generation to serve as mentors to the next time that job opportunities for law tion of lawyers. generation of lawyers; to represent our school graduates diminished, tuition profession well; and, most important, rates and student loan debt loads rose. Mentoring to be stewards of our profession and It will clearly take time for us to get our A major initiative under this theme is assure that it remains a profession profession back on its feet. promoting mentoring of new lawyers. of which our own mentors would be As we recover from the downturn, The hustle of the daily practice of law proud. This is especially important we have a choice. We can return to the is demanding for all of us. Technology now, when graduating law students status quo – i.e., the same practices that has created a 24/7, virtual law office. are having difficulty finding jobs, got us into this mess. Or, we can seize Over time, it has become quite chal- when associates who have been laid the opportunity presented by this crisis lenging for experienced lawyers to off are looking for work, and when to change how we practice law. I am dedicate the time needed to coach many are questioning why they chose convinced that there is a better way. new lawyers. However, we all need to to be lawyers in the first place. Our membership ranks are made up remember that we would not be where Over the next year, we will encour- of thought leaders who can help guide we are today but for the mentors who age our sections to provide opportuni- our profession into the future – a future have guided our careers. ties to pair new lawyers with mentors. that will hopefully make the practice of Throughout my professional life, I One such opportunity is already under law more satisfying for us and for the have been blessed to have wonderful way. We are matching law students next generation of lawyers. mentors. It began after college, when I with our sections, where they will be Law firm managers, corporate coun- was not even looking for a job. I had the able to work on reports and, in the sel and academics are all debating the wonderful fortune of working for then- process, form relationships with lead- evolution of our profession. In a recent Chief Administrative Judge Richard J. ers in the field. poll of the legal profession, nearly 75% Bartlett. He took me under his wing of those surveyed believed that our and encouraged me to attend Albany Future of Our Profession profession is undergoing a widespread Law School. Judge Bartlett then told In tandem with mentoring initiatives, evolution that will include permanent me to clerk for Judge Hugh R. Jones – a we also need to shape our profes- changes to billing structures, firm former State Bar President who sat on organization, and client expectations. the New York Court of Appeals. After Thus, we know that change is coming. my clerkship, Judge Bartlett directed STEPHEN P. Y OUNGER can be reached at The question is, who will make that me to Patterson Belknap in New York [email protected].

NYSBA Journal | June 2010 | 5 PRESIDENT’S MESSAGE sion so that it is satisfying for lawyers New York should adopt meaningful 20%. Legislation is on the table to cre- and attractive to our clients. Our new anti-corruption legislation. Also, there ate more judgeships, but we have seen Task Force on the Future of the Legal is a patchwork of regulatory bodies in no progress. At the same time, the Profession will try to project what the New York’s government ethics arena. Family Courts need to consider what profession will look like in the next We need to consider what body is best management techniques and techno- decade and propose steps that the equipped to monitor ethics in govern- logical tools can be used to better cope State Bar can take to promote posi- ment and to ensure that necessary due with their burgeoning caseloads. tive developments in the profession. process protections are secured. Our new Task Force on the Family There are four main components to Finally, we need ethics rules that Courts will examine what resources this study: (1) exploring better ways will allow full participation of lawyers our Family Courts need, as well as the to train new lawyers so they can meet in government. Every day, New York case management and technological the demands of the modern client; (2) lawyers lend their expertise on issues techniques that can help the Family helping lawyers find balance in the vir- that affect the lives of New Yorkers, Court system. Our goal is to ensure tual, 24/7 workplace; (3) developing and many of them do so through pub- that we help effectively manage all best practices for law firms in dealing lic service in non-paying positions. As cases affecting families, and that the with their clients, including the grow- New York continues to work through Family Court is fully deployed. ing use of alternative billing systems; the impacts of the recession, we cannot and (4) identifying the technologies of afford to lose the intellect and innova- Youth Courts the future that will make our practices tion that lawyers bring to the public Chief Judge Emeritus Judith S. Kaye more efficient and effective. sector. (who will be spearheading our Youth This is an area where I am con- Toward this end, our new Task Force Court project) has reminded us that we vinced that our Association can make will build on the work of our Special have an obligation to nurture young a difference, not only in New York Committee on Government Ethics, people because their future depends but nationally. New York is a very which developed a set of “Guiding on it – and so does ours. We cannot diverse state, and we are a diverse Principles on Government Ethics” that ensure our own future unless we do bar association. No organization is a our Association adopted earlier this our part to help young people. clearer reflection of the overall profes- year. Hopefully, the Task Force’s work In more than 80 Youth Courts across sion than we are, representing large will lead to meaningful reform that New York, lawyers come together with firms, small firms, big cities, suburbs, will help restore public confidence that law enforcement and educators to train and rural areas. The best practices our honest and hard-working public young people to apply problem-solving that our Task Force proposes can thus servants are advancing the interests of methods for resolving minor youthful serve as a national model to improve all New Yorkers. offenses. In Youth Courts, offenders the profession. are “tried” by their peers, who serve as Family Courts lawyers, judge and jury. Youth Courts Government Ethics There may be no place where shaping use positive peer pressure to ensure Another recent phenomenon is the the future and restoring confidence that young people in trouble pay back increasing loss of confidence that our in our government institutions come their communities and receive the help citizens have in their government insti- together as clearly as in our Family they need to avoid further brushes tutions. New Yorkers are losing their Court system. From foster care to with the law. Studies show that youths jobs and their homes at the same time child abuse and neglect, the Family sent through traditional courts are far that a succession of government offi- Courts are dealing with the most vul- more likely to return to the criminal cials are being investigated or indicted. nerable segment of our society – chil- justice system than those who go to a On top of that, the gridlock at all levels dren – at the most vulnerable points in Youth Court. of government appears to be worse their lives. Unfortunately, the Family Our new Special Committee on than ever. Courts are plagued by overcrowded Youth Courts will examine the role The State Bar has long supported dockets, too few judges, and long the State Bar can play in promoting transparency in our governmental delays. and financing Youth Courts and will institutions. In my view, effective eth- In 2007, a commission appointed review best practices for developing ics reform is needed to help restore by then-Chief Judge Judith S. Kaye effective Youth Courts. The Special confidence in our government. New recommended adding 39 new Family Committee also will explore legislation York lacks a comprehensive anti- Court judges to handle the increased that can both maintain and expand the corruption statute. Given the U.S. caseload. It has been 20 years since a role of Youth Courts in our state. Supreme Court’s current review of the new Family Court judgeship was cre- federal theft of honest services law, ated in New York City and, since that it is appropriate to consider whether time, filings have increased by nearly CONTINUED ON PAGE 61

6 | June 2010 | NYSBA Journal

NYSBACLE Tentative Schedule of 2010 Programs (Subject to Change)

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

Real Problems, Real Answers: One Year’s 2010 Insurance Coverage Update Experience With the New York Rules of June 18 Albany; Long Island; Syracuse Professional Conduct June 25 Buffalo; New York City (9:00 am – 12:35 pm) June 7 Westchester Bridging the Gap June 9 New York City (two-day program) June 10 Long Island; Syracuse July 21–22 New York City (live session) June 17 Albany Albany (video conference from NYC) June 18 Ithaca Commercial Real Estate Leases Estate Planning After Divorce September 13 New York City (9:00 a.m. – 1:00 p.m.) September 23 Rochester June 8 Westchester June 9 New York City; Rochester Handling DWI in New York September 23 Long Island † Advanced Document Drafting for the Elder Law September 24 New York City Practitioner September 30 Buffalo June 8 Long Island October 28 Albany June 10 Buffalo June 11 Albany Bridging the Gap June 21 New York City (two-day program) October 13–14 Fraudulent Practices in Real Estate June 8 Albany Emerging Issues in Environmental Insurance June 16 New York City October 29 New York City Planning, Drafting and Administration of Practical Skills: Purchases and Sales of Homes Conservation Easements November 2 Albany; Long Island; New York June 14 New York City City; Rochester November 3 Buffalo Practicing Matrimonial and Family Law in Chaotic Times – Part Two November 4 Syracuse; Westchester (9:00 am – 1:00 pm) † Eighth Annual Sophisticated Trusts June 18 Albany and Estate Institute Representing a Political Candidate (two-day program) November 18–19 New York City (9:00 a.m. – 1:00 p.m.) June 18 Westchester June 22 Albany June 23 Buffalo; Long Island June 24 New York City; Syracuse To register or for more information call toll free 1-800-582-2452 In Albany and surrounding areas dial (518) 463-3724 • Or fax your request to (518) 487-5618 www.nysba.org/CLE (Note: As a NYSBA member, you’ll receive a substantial discount)

† Does not qualify as a basic level course and, therefore, cannot be used by newly admitted attorneys for New York MCLE credit. NEW YORK STATE BAR ASSOCIATION

From the NYSBA Book Store > NEW! Counseling Content Providers in the Digital Age A Handbook for Lawyers

For as long as there have been printing presses, there have been accusations of libel, invasion of privacy, intellectual property infringements and a variety of other torts. Now that much of the content reaching the public is distributed over the Internet, television (including cable and satellite), radio and film as well as in print, the field of pre-publication review has become more complicated and more important. Counseling Content Providers in the Digital EDITORS Age provides an overview of the issues content reviewers face Kathleen Conkey, Esq. repeatedly. Elissa D. Hecker, Esq. Pamela C. Jones, Esq. Counseling Content Providers in the Digital Age was written and edited by experienced media law attorneys from California and New York. This book is invaluable to anyone entering the PRODUCT INFO AND PRICES field of pre-publication review as well as anyone responsible for 2010 / approx. 430 pages, softbound / PN: 4063 vetting the content of their client’s or their firm’s Web site. Available June 2010 Order Now! Table of Contents $65 Nonmembers Introduction; Defamation; The Invasion of Privacy Torts; Right $50 Members of Publicity; Other News-gathering Torts; Copyright Infringement; ** Free shipping and handling within the conti- Trademark Infringement; Rights and Clearances; Errors and Omissions nental U.S. The cost for shipping and handling outside the continental U.S. will be added to your Insurance; Contracting with Minors; Television Standards and order. Prices do not include applicable sales tax. Practices; Reality Television Pranks and Sensitive Subject Matter; Miscellaneous Steps in Pre-Broadcast Review.

Get the Information Edge 1.800.582.2452 www.nysba.org/pubs Mention Code: PUB0758 I Don’t Need Your Authority

The Use of Learned Treatises in New York State Courts

By Eric Dinnocenzo ERIC DINNOCENZO ([email protected]) is an attorney at Trief & Olk, a firm with offices in New York and New Jersey. He handles complex civil litigation with a focus on representing plaintiffs in bad-faith insurance denials, products liability, medical malpractice, and labor law. He is a cum laude graduate of Boston College Law School and received his undergraduate degree from Fairfield University.

ou are about to go to trial and have just discovered is that the text must be shown to be a reliable authority, a passage from a learned treatise that you believe which can be accomplished by any testifying expert, not can be used to discredit an opposing expert wit- just the one who happens to be on the witness stand, as Y 3 ness during cross-examination. You picture yourself well as through judicial notice. reading aloud from the text and the expert suddenly at a loss for words on the witness stand, everyone in the New York Law courtroom realizing that the expert’s opinion has been In recent years, New York law has slowly inched toward exposed as false. the federal rule, though its roots still remain firmly in For a trial lawyer such moments are priceless. But for the 19th century. In the 1896 case Egan v. Dry Dock, E.B. those who happen to litigate in the New York state courts, & B.R. Co., the First Department held that a party may they are exceedingly rare. read aloud from a learned treatise to an opposing expert New York law only permits a learned treatise to be and ask if the expert agrees with certain statements. But used during the cross-examination of an expert, and the court was careful to qualify that, first, the witness only – and this is key – if the expert concedes that it is author- must deem the writing to be an authority in the field.4 itative.1 As you may have already surmised, the seasoned Moreover, a learned treatise could be used in this man- expert witness will rarely, if ever, make that concession. ner only for the purpose of ascertaining the weight to be In fact, trial practice commentators have set forth given to the testimony of the expert witness, not for the methods to cope with the expert witness who is pro- literature to be evidence for the jury to consider.5 grammed to deny that any literature is authoritative. New York state courts have consistently upheld this These include asking questions that establish that a text rule, as well as the principle that a party may not intro- is used by professionals in the field, while avoiding the duce learned treatises into evidence or read aloud from use of buzzwords like “authority” or “authoritative,” and them during the direct examination of an expert on the also pulling out the article or book, holding it aloft before grounds that they are inadmissible hearsay.6 For exam- the jury, and asking the expert if it is an authority on a ple, the Second Department has held that a questioning particular issue, all the while anticipating that the expert attorney cannot read directly from his notepad to ask will say no and the judge will not allow the attorney to questions that were obviously taken from literature in read aloud from it.2 the expert’s field.7 The Third Department has determined Seasoned experts routinely testify that while certain that an expert is not permitted to testify as to the results literature in the field may serve as a guide to formulating of his independent research of medical literature.8 opinions, none is authoritative. For instance, some physi- The rationale for limiting the use of learned treatises cians claim that medicine is a constantly evolving sci- during the cross-examination of experts is to prevent ence and that shortly after a text or article is published it the expert from being ambushed by opposing counsel becomes outdated. In a sense, who can blame them? Why armed with books and articles of questionable legitimacy, should they open themselves up to cross-examination and who, furthermore, could cause the trial to be over- concerning unfavorable literature when other experts whelmed by a scholarly debate about the relevant (or in the case will avoid it by refusing to agree that it is an irrelevant) literature. As is evident, there is a certain trust authority? Especially considering that the law does not in this equation that the expert will forthrightly admit or allow them during direct examination to refer to litera- deny whether a text or article is an authority. The expert ture that actually supports their opinion. is the gatekeeper, and the law presumes that he or she is In the federal courts or the state courts in the major- an honest one. ity of other jurisdictions, the evidentiary rules regarding The unfortunate consequence of the rule that exists in learned treatises are much different. Parties may read New York is that experts have grown adept at protecting aloud from them, as well as show statements contained in themselves from questioning that concerns any scientific them to the jury, during either direct or cross-examination literature that challenges or contradicts their opinion. of an expert witness. All that is required as a foundation The expert can be questioned concerning his or her opin-

NYSBANYSBA Journal | June 22010010 | 11 ion and the basis for it, but not about the literature that Arguably, this decision is not a stark development; diverges from it. As a result, the truth-seeking function of it is a familiar rule that experts can be cross-examined a trial suffers. about any materials they review in preparing for their trial testimony. Yet it does represent a shift away from the Problems With Application long-established rule that literature can be used during The New York rule can be vague and amorphous in its the cross-examination of an expert witness only if he or application because, as a practical reality, individual she concedes that it is authoritative. judges interpret it differently. Expert testimony during direct examination can range from discussing particular texts, to speaking generally about the body of literature, to not being permitted to discuss the literature at all. The limitations imposed by the Similarly during cross-examination, although judges will New York rule can have tremendous not allow statements to be read from learned treatises impact on how a case is tried. unless deemed authoritative by the witness, some judges will allow attorneys to ask the expert if he or she agrees with the conclusions of specific texts or ask about general principles stated in the literature. Further muddying the waters, in 2006 the Court of In certain types of cases, the limitations imposed by Appeals held that it was permissible to show the jury, as the New York rule can have a tremendous impact on a demonstrative aid, practice guidelines issued jointly by how a case is tried. For instance, in medical malpractice the American Heart Association and American College cases involving infants who suffer shoulder dystocia with of Cardiology. The Court was careful to note that the resulting Erb’s palsy at birth, the medical literature is guidelines were not introduced for the truth of their con- sharply divided about what causes a permanent paraly- tents or to establish a per se standard of care, but instead sis of the infant’s arm – one camp claims, in accordance to illustrate a defendant physician’s decision-making with the long-held belief in the medical community, that process. Also significant was that the physician was a it is solely due to physician negligence, while the other treating doctor and defendant in the case, rather than a (using what a number of experts say is a flawed scientific retained expert, and when he referred to the guidelines method) concludes that a substantial number of injuries during his testimony the plaintiff never requested a limit- are caused naturally by maternal expulsive forces. A thor- ing instruction.11 ough analysis of the literature presented to the jury can Although the plaintiff argued that there was no mean- have a different impact on its decision-making process in ingful distinction between offering the guidelines for this type of case and others, as opposed to a trial in which their truth and using them to demonstrate a physician’s the literature is suppressed or otherwise expounded on decision-making process, the Court rejected this argu- by experts, according to how they see fit, with no ability ment, adhering to the reasoning that the guidelines were to impeach them with contradictory sources. not admitted to establish a standard of care, but rather to explain the physician’s decision-making process.12 A Shift in the Law Thus, limited exceptions have grown out of the New In recent years, the First Department has departed slight- York rule regarding how attorneys and expert witnesses ly from the established rule. In its 2008 decision Lenzini may use learned treatises at trial. How to reconcile these v. Kessler, the First Department held that an expert who exceptions with the rule poses a challenge to attorneys testifies to having consulted a text and agreeing with and judges in trials where scientific and other expert lit- much of it may “not foreclose full cross-examination by erature is poised to play a significant role. the semantic trick of announcing that he did not find the work authoritative.”9 Thus, an expert does not have to The Federal Courts and Other States say the magic word “authoritative” as a prelude to being The federal courts under Federal Rule of Evidence questioned about certain texts or articles during cross- 803(18), along with a majority of states, allow the reading examination, at least in the First Department. aloud from learned treatises at trial during both direct In reaching its holding, however, the Appellate and cross-examination. To satisfy foundation require- Division found it significant that the expert brought ments, any expert, whether called by the plaintiff or the the subject medical text to court and had made notes in defendant, must testify that it is a reliable authority in the it, and that a limiting instruction was given to the jury field; or it can even be deemed such by judicial notice. that the literature was only to be used in evaluating the Then it is open season to question any expert witness credibility of the expert. Further, the court reiterated the concerning statements contained in the treatise. principle that a learned treatise cannot be offered for its Still, certain rules apply. In federal court, the state- truth or to establish a standard of care.10 ments may be read into evidence, but may not be

12 | June 2010 | NYSBA Journal received as exhibits.13 In the context of a direct examina- rule remedies the practical reality of admitting statements tion, experts may refer to literature to the extent that they in learned treatises for the purpose of impeachment only, relied upon it to arrive at their opinion.14 To be clear, a with an instruction to the jury that they are not to be con- learned treatise is not meant to be a substitute for expert sidered for their truth. testimony, but rather is to help the expert explain his or Additional safeguards were erected by the New Jersey her opinion to the jury. Supreme Court to ensure fairness at trial. The mere fact Historically, New Jersey law was nearly identical to that a text has been published does not automatically ren- New York law concerning the use of learned treatises at der it admissible; rather, the text must be demonstrated trial. But, finding the rule to have “pervasive problems,” by the expert to be one that qualifies as the type of mate- the New Jersey Supreme Court in 1992, in Jacober v. St. rial reasonably relied on by experts in the field. The trial Peter’s Medical Center,15 adopted the more permissive judge has discretion to prevent the trial from being over- scope allowed under Federal Rule of Evidence 803(18). whelmed by the use of literature. Further, learned trea- In Jacober, the court contrasted the merits of the federal tises may not be introduced into evidence as exhibits.19 approach with the drawbacks of its own rule and con- Although it can reasonably be disputed, the court cluded that a more expanded use of authoritative treatis- seemed confident that the rule it adopted would not like- es avoids the possibility for the expert to have “full veto ly be susceptible to abuse because attorneys have a strong power over the cross-examiner’s efforts.”16 Preventing incentive to direct the jury’s attention to a few select, cross-examination upon the accepted literature in the highly regarded texts or articles rather than overwhelm- field, the court reasoned, only serves to protect an igno- ing jurors with references to as many texts as possible.20 rant or unscrupulous expert witness.17 In short, a trial There is also a leveling effect that is created by the would be fairer if the expert witness was no longer the New Jersey and federal rule with respect to adversaries arbiter of the questions being posed and could be asked with unequal resources. A party who has less access to about divergent views expressed in the literature. As the expert witnesses, or fewer financial resources, can bolster court put it, “[a]doption of the federal rule will advance its expert testimony with the aid of literature, rather than the goals of the adversarial system by enhancing the abil- simply being outmatched by a greater number of oppos- ity of juries to evaluate expert testimony.”18 The federal ing expert witnesses, who perhaps are of greater stature.21

NYSBA Journal | June 2010 | 13 Frequently this is the case for plaintiffs in medical mal- In 2008, the First Department took a step in this direc- practice cases, who often have a smaller stable of experts tion. Only time will tell if that momentum continues. ■ to choose from, and who many times have to search for them out-of-state as physicians can be reluctant to testify 1. Labate v. Plotkin, 195 A.D.2d 444, 600 N.Y.S.2d 144 (2d Dep’t 1993). against other physicians who practice in their state. 2. Ben Rubinowitz & Evan Torgan, Authoritative Texts and Cross-Exam of Medical Experts, NYLJ, June 7, 2007. And, arguably, the federal rule keeps experts more 3. Fed. R. Evid. 803(18). honest. Since they are no longer the gatekeeper for the 4. 12 A.D. 556, 571, 42 N.Y.S. 188 (1st Dep’t 1896). use of learned treatises at trial, the rule discourages them from straying too far from accepted principles in the field. 5. Id. at 571. Given that the purpose of a trial is to discover the truth of 6. See Kirker v. Nicolla, 256 A.D.2d 865, 867, 681 N.Y.S.2d 689 (3d Dep’t 1998); Gunnarson v. State, 95 A.D.2d 797, 463 N.Y.S.2d 853 (2d Dep’t 1983). the matter being tried, this is a powerful policy reason for 7. Labate, 195 A.D.2d 444. adopting the New Jersey and federal rule. 8. Gushlaw v. Roll, 290 A.D.2d 667, 670, 735 N.Y.S.2d 667 (3d Dep’t 2002). 9. 48 A.D.3d 220, 220, 851 N.Y.S.2d 163 (1st Dep’t 2008) (quoting Spiegel v. Conclusion Levy, 201 A.D.2d 378, 379, 607 N.Y.S.2d 344 (1994)). In federal and most state courts, the parties are allowed 10. Id. a much more liberal use of learned treatises at trial as 11. Hinlicky v. Dreyfuss, 6 N.Y.3d 636, 815 N.Y.S.2d 908 (2006). opposed to the more than century-old rule that exists in 12. Id. New York. Nearly 20 ago, New Jersey transitioned from 13. Fed. R. Evid. 803(18). a rule similar to New York’s and adopted Federal Rule 14. Jacober v. St. Peter’s Med. Ctr., 128 N.J. 475, 489, 608 A.2d 304 (1992). of Evidence 803(18), which is applied in the majority of 15. Id. state courts. Given that over the past century society has 16. Id. at 490 (quoting Whitley v. Stein, 34 S.W.2d 998, 1001 (Mo. App. 1931)). become much more specialized in nature, with authorita- 17. Id. (quoting Darling v. Charleston Cmty. Mem’l Hosp., 33 Ill. 2d 326, 211 N.E.2d 253 (1965)). tive texts in professional fields growing exponentially in 18. Id. at 494. number and influence, it may be the case that New York 19. Id. at 491–95. will also at some point transition away from its restric- 20. Id. at 496 tions on the use of literature at trial. 21. See id. at 495. Are You feeling overwhelmed? The New York State Bar Association’s Lawyer Assistance Program can help.

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

NEW YORK STATE BAR ASSOCIATION LAWYER ASSISTANCE PROGRAM

14 | June 2010 | NYSBA Journal BURDEN OF PROOF BY DAVID PAUL HOROWITZ

DAVID PAUL HOROWITZ ([email protected]) practices as a plaintiff’s personal injury lawyer in New York and is the author of New York Civil Disclosure (LexisNexis), the 2008 Supplement to Fisch on New York Evidence (Lond Publications), and the Syracuse Law Review annual surveys on Disclosure and Evidence. Mr. Horowitz teaches New York Practice, Evidence, and Electronic Evidence & Discovery at Brooklyn, New York and St. John’s law schools. A member of the Office of Court Administration’s CPLR Advisory Committee, he is a frequent lecturer and writer on these subjects.

“Know When to Hold ’Em”

lectronic disclosure and evi- (b) scope of electronic data to the [] Defendants’ email deletion dence continues to percolate review; policy.”8 Finding that the party’s tes- through civil litigation in New (c) identification of relevant data; timony “is starkly different from any E (d) identification and redaction of 9 York’s state and federal courts, seem- kind of reasonable retention policy,” ingly permeating certain practice privileged electronic data; the court held that “upon a preponder- areas. While common issues appear (e) the scope, extent and form of ance of the evidence the [producing and apply in both court systems, fed- production; party] failed to implement any change eral courts have been in the forefront of (f) anticipated cost of data recov- in its policy upon the commencement creating a body of caselaw in the area ery and proposed initial allocation of this litigation, upon being served and were early adopters of court rules of such cost; with a discovery demand, or even intended to provide an organizational (g) disclosure of the programs upon Plaintiffs filing multiple orders to framework for, and formalize a means and manner in which the data is show cause to compel the [producing for addressing, electronic discovery maintained; party] to produce emails responsive to issues. New York’s state courts have (h) identification of computer the Document Demand.”10 The court demonstrated a willingness to follow system(s) utilized; and also found that the e-mail produc- where the federal courts have led. (i) identification of the tion was “selective in nature,”11 that Having dipped a toe back into the individual(s) responsible for data the backup system upon which the 5 electronic pool with last issue’s column preservation. producing party placed reliance in the discussing the MBIA case,1 the path of The subjects and categories set forth absence of a litigation hold was such least resistance was to keep swimming. in the rule will be immediately familiar that, “a reasonable investigation would This column focuses on the issue of to federal court practitioners as they have revealed[,] failed to capture rel- litigation holds for ESI,2 discussing two closely follow those outlined in Federal evant emails,”12 and that “counsel for recent decisions, one state and one fed- Rules Civil Procedure 26. While there the [producing party] made numerous eral, that are particularly useful gadgets are still no reported decisions involv- statements to the Plaintiffs and this to have in the litigator’s tool box. ing the state court rules per se, a num- Court that were materially false.”13 More than one year ago3 a new ber of recent trial-level decisions have Determining that “[t]he CPLR and subsection was added to the Uniform addressed electronic disclosure issues New York caselaw are silent on the Rules for the Supreme Court and the that fall within the ambit of the rule.6 obligations of parties and their coun- County Court, 22 N.Y.C.R.R. Part 202, sel to effectuate a ‘litigation hold,’”14 directing that issues of electronic dis- Litigation Holds in State Court Justice Ramos noted that “New York closure be discussed, where appro- Justice Ramos in the Commercial courts have turned to the Federal priate, at Preliminary Conferences.4 Division, New York County, delved Rules of Civil Procedure and the case- Inserted as § 202.12(c)(3) (with the into “litigation holds,” intended to law interpreting them for guidance.”15 remaining subsections re-numbered), prevent the destruction of potentially Following that guidance, the court the rule provides: relevant electronic data, in connection determined that the demanding party 3) Where the court deems with a motion for, inter alia, spoliation.7 was entitled to an adverse inference16 appropriate, establishment of the After reviewing the parties’ submis- and “that the utter failure to imple- method and scope of any elec- sions and conducting a hearing, Justice ment a litigation hold constitutes a tronic discovery, including but not Ramos concluded: “As the finder of separate discovery violation warrant- limited to fact, this Court finds upon a preponder- ing sanctions,”17 which the court deter- (a) retention of electronic data ance of the evidence that [the produc- mined was an award of attorney fees and implementation of a data ing party’s] affidavits were materially and costs associated with the forensic preservation plan; incomplete, particularly with respect review of the producing party’s hard

NYSBA Journal | June 2010 | 15 drives, together with counsel fees and 1. Plaintiffs that Acted in a ten litigation hold constitutes gross costs on the motion.18 Grossly Negligent Manner negligence because that failure is 2. Plaintiffs that Acted in a likely to result in the destruction of Litigation Holds in Federal Court Negligent Manner relevant information.24 Judge Shira A. Scheindlin of the E. Sanctions Judge Scheindlin fixed a moment Southern District of New York penned VI. CONCLUSION in time when the failure to institute a a decision clearly intended to be the The organization of the opinion is proper litigation hold constituted gross paradigm for ESI preservation and useful both for the framework it offers negligence: production in federal court. In The for understanding the issues surround- After a discovery duty is well Pension Committee of the University of ing electronic disclosure sanctions gen- established, the failure to adhere Montreal Pension Plan v. Banc of America erally and in the case at bar, and for to contemporary standards can be Securities, LLC,19 an action brought furnishing a model for future litigants considered gross negligence. Thus, by investors of two liquidated hedge to structure arguments for and against after the final relevant Zubulake funds, Judge Scheindlin was confront- such sanctions. opinion in July, 2004, the following ed by motions for sanctions brought by The legal standards for the pres- failures support a finding of gross the defendants against 13 of 96 plain- ervation and production of ESI, and negligence, when the duty to pre- tiffs based upon allegations that “each the procedural framework, burdens of serve has attached: to issue a writ- and every plaintiff failed to preserve proof, and range of remedies set forth ten litigation hold; to identify all of and produce documents – including in the opinion, represent the synthesis the key players and to ensure that those stored electronically – and sub- and distillation of Judge Scheindlin’s their electronic and paper records mitted false and misleading declara- Zubulake decisions, and will be familiar are preserved; to cease the deletion tions regarding their document collec- to practitioners in the arena of elec- of email or to preserve the records tion and preservation efforts.”20 tronic litigation. of former employees that are in Titling her opinion “Zubulake One aspect of the opinion requires a party’s possession, custody, or Revisited: Six Years Later,”21 Judge the careful construction of a chronol- control; and to preserve backup Scheindlin took care to organize the ogy for past preservation and produc- tapes when they are the sole source opinion in a manner that made fol- tion efforts. Montreal was originally of relevant information or when lowing the complicated issues involv- commenced in the Southern District of they relate to key players, if the ing a multitude of parties, each of Florida in 2004 and was transferred to relevant information maintained whose conduct needed to be evaluated the Southern District of New York in by those players is not obtainable individually, a fairly straightforward October of 2005 following the defen- from readily accessible sources.25 proposition.22 To accomplish this, the dants’ successful motion to transfer Judge Scheindlin addressed the opinion was organized under the fol- venue.23 Judge Scheindlin offered two transfer of the action from Florida lowing headings: alternative times when preservation to New York vis a vis the time when I. INTRODUCTION obligations attached: the preservation obligations at issue II. AN ANALYTICAL Applying these terms in the dis- became fixed: FRAMEWORK AND covery context is the next task. The age of this case requires a APPLICABLE LAW Proceeding chronologically, the dual analysis of culpability – plain- A. Defining Negligence, Gross first step in any discovery effort tiffs’ conduct before and after 2005. Negligence, and Willfulness in is the preservation of relevant The Citco Defendants contend that the Discovery Context information. A failure to preserve plaintiffs acted willfully or with B. The Duty to Preserve and evidence resulting in the loss or reckless disregard, such that the Spoliation destruction of relevant information sanction of dismissal is warranted. C. Burdens of Proof is surely negligent, and, depend- Plaintiffs admit that they failed to D. Remedies ing on the circumstances, may be institute written litigation holds III. PROCEDURAL HISTORY grossly negligent or willful. For until 2007 when they returned IV. PLAINTIFFS’ EFFORTS example, the intentional destruc- their attention to discovery after a AT PRESERVATION AND tion of relevant records, either four year hiatus. Plaintiffs should PRODUCTION paper or electronic, after the duty have done so no later than 2005, V. DISCUSSION to preserve has attached, is will- when the action was transferred A. Duty to Preserve and ful. Possibly after October, 2003, to this District. This requirement Document Destruction when Zubulake IV was issued, and was clearly established in this B. Culpability definitely after July, 2004, when the District by mid-2004, after the last C. Relevance and Prejudice final relevant Zubulake opinion was relevant Zubulake opinion was D. Individual Plaintiffs issued, the failure to issue a writ- issued. Thus, the failure to do so

16 | June 2010 | NYSBA Journal as of that date was, at a minimum, thought-out and thorough litigation 8. Id. grossly negligent. The severity of hold, while often costly, will bring 9. Id. 10. Id. this misconduct would have justi- great peace of mind during the prose- 11. Id. fied severe sanctions had the Citco cution of a case, enabling a party to go Defendants demonstrated that any 12. Id. on the electronic disclosure offensive, 13. Id. documents were destroyed after without concern that its own misstep 14. Id. 2005. They have not done so. It is in this area renders it subject to pen- 15. Id. (citations omitted). likely that most of the evidence alty. ■ 16. Id. was lost before that date due to the 17. Id. failure to institute written litigation 1. MBIA Ins. Corp. v. Countrywide Home Loans, Inc., 18. Id. holds.26 2010 NY Slip Op. 20043, 895 N.Y.S.2d 643 (Sup. Ct., N.Y. Co. 2010). 19. 2010 WL 184312 (S.D.N.Y. 2010). 20. Id. at *1. In a footnote, Judge Scheindlin noted 2. Electronically stored information. See Kelly D. that while a duty to preserve existed in Kubacki and Regina J. Jytyla’s article “Navigating 21. Id. the Southern District of Florida when and Avoiding Sanctions for Failing to Preserve 22. Judge Scheindlin noted in note 56: Electronic Information,” on page 34 in this issue of I, together with two of my law clerks, have spent the case was filed, no Eleventh Circuit the Journal. an inordinate amount of time on this motion. We district court articulated a “litigation 3. Effective March 20, 2009. estimate that collectively we have spent close to hold” requirement until 2007.27 4. 22 N.Y.C.R.R. § 202.12(c)(3), amended and re- three hundred hours resolving this motion. I note, numbered. in passing, that our blended hourly rate is approximately thirty dollars per hour (!) well below that of 5. Id. Conclusion the most inexperienced paralegal, let alone lawyer, Electronic disclosure will continue to 6. See. e.g., In re Tamar, 24 Misc. 3d 768, 877 appearing in this case. My point is only that sanc- N.Y.S.2d 874 (Sur. Ct., Westchester Co. 2009) (elect- tions motions, and the behavior that caused them devour litigation resources and require ing production in electronic format); T.A. Ahern to be made, divert court time from other important thoughtful and detailed analysis at the Contractors Corp. v. The Dormitory Auth. of State of duties – namely deciding cases on the merits. N.Y., 24 Misc. 3d 416, 875 N.Y.S.2d 862 (Sup. Ct., time when a party first contemplates 23. Id. at *8. N.Y. Co. 2009) (cost of production (traditional analy- bringing a claim or is alerted to the sis)). 24. Id. at *3. potential that it may be subject to a 7. Einstein v. 357 LLC, 2009 NY Slip Op. 32784U, 25. Id. at *7. claim. The implementation of a well- 2009 N.Y. Misc. LEXIS 3636 (Sup. Ct., N.Y. Co. 26. Id. at *10 (citations omitted). 2009). 27. Id. at n.90.

NYSBA Journal | June 2010 | 17 ROBERT N. SWIDLER is General Counsel to Northeast Health, a not-for-profit health care system in the Capitol Region that operates hospitals, nursing homes, home care and other facilities and services. Mr. Swidler is former Counsel to the NYS Office of Mental Health, former Assistant Counsel to Governor Mario M. Cuomo, and former Staff Counsel to the NYS Task Force on Life and the Law.

New York’s Family Health Care Decisions Act The Legal and Political Background, Key Provisions and Emerging Issues By Robert N. Swidler

Introduction years – stable, but in the view of many observers, also New York’s Family Health Care Decisions Act (FHCDA)1 harsh and unrealistic in its approach to decision making establishes the authority of a patient’s family member or for dying and incapable patients. The long-standing law close friend to make health care decisions for the patient could be summarized in three broad principles: in cases where the patient lacks decisional capacity and Principle 1. Patients who have decisional capacity did not leave prior instructions or appoint a health care have a broad right to consent to or decline treatment – agent. This “surrogate” decision maker would also be even life-sustaining treatment. This principle, which empowered to direct the withdrawal or withholding of has its roots in Justice Cardoza’s seminal decision in life-sustaining treatment when standards set forth in the Schloendorff v. New York Hospital,3 was first explicitly statute are satisfied. stated by the New York State Court of Appeals decisions On March 16, 2010, Governor Paterson signed the in In re Storar,4 and reaffirmed by the Court repeatedly FHCDA into law at a ceremony at Albany Memorial since then, notably in Fosmire v. Nicoleau.5 While New Hospital. The key provisions became effective on June 1, York courts based the right on common law, in 1990 2010.2 the U.S. Supreme Court, in Cruzan v. Director, Missouri Department of Health, found that the right of competent 1. The Legal Background adults to refuse unwanted medical treatment is a liberty End-of-Life Decision Making interest protected by the Fourteenth Amendment Due Prior to the FHCDA, the law in New York on end-of-life Process Clause.6 Accordingly, in general capable patients decision making had been relatively stable for about 25 can decline life-sustaining treatment, including artificial

18 | June 2010 | NYSBA Journal nutrition and hydration, without regard to their progno- withdraw or withhold treatment depends on whether sis or the invasiveness of the treatment. there is “clear and convincing evidence” of the patient’s Principle 2. With respect to incapable patients, life- wish to forgo such treatment. sustaining treatment can be withdrawn or withheld if there is clear and convincing evidence that the patient Familiar Scenarios would want the treatment withdrawn or withheld. The With these legal principles as the backdrop, variations of Court of Appeals announced this standard in In re Storar.7 this scenario have occurred daily in hospitals and nursing In a later decision, In re Westchester County Medical Center homes across New York: An elderly patient is left perma- (O’Connor), the Court explained that “clear and convinc- nently unconscious after a stroke and is able to breathe ing evidence” means proof that the patient made “a firm only while on a ventilator. After a period of waiting for and settled commitment to the termination of life sup- improvement, the physician tells the family that there ports under the circumstances like those presented.”8 The is no hope of recovery, and that it would be acceptable O’Connor court also noted that the “ideal situation” is from a medical standpoint to discontinue ventilation. The where the patient expressed his or her wishes in writing, close and loving family members believe their husband such as in a living will.9 and father would not want his death prolonged this way, Principle 3. With respect to incapable patients, if and favor discontinuing ventilation after making him there is not clear and convincing evidence that the patient comfortable. would want treatment withdrawn or withheld, life- sustaining treatment is legally required to be continued or provided. This logical corollary to Principle 2 also Under New York law, the family arises from In re Storar. In that case, the Court refused to allow the mother of a mentally retarded man who was had no control – life-sustaining dying from bladder cancer to discontinue his regime of treatment had to be continued blood transfusions, because of the absence of proof of the patient’s wishes. indeﬁ nitely. In the years since Storar and O’Connor, the New York State Legislature approved three other principal circumstances in which life-sustaining treatment could be with- In most states, as a result of statute or caselaw, provid- drawn or withheld: ers could honor the decision by this family. Under New DNR decisions. Decisions regarding the entry of a do- York law they could not: in this instance there is no clear not-resuscitate (DNR) order can be made by a surrogate and convincing evidence and no health care proxy, the decision maker under circumstances defined in New decision relates to ventilation, not CPR, and the patient is York’s DNR law.10 not mentally retarded. Accordingly, under New York law, Health care agent. When a patient appoints a health care the family had no control – life-sustaining treatment had agent pursuant to New York’s Health Care Proxy Law to be continued indefinitely. and later loses capacity, the agent can make any health In another familiar scenario, an elderly woman who care decision the patient could have made, including a is a nursing home resident is in an advanced stage of decision to forgo treatment, based on a substituted judg- Alzheimer’s disease, and stops eating. As an interim ment/best interests standard.11 measure, staff commences tube feeding by nasogastric Mentally retarded patients. Decisions to withdraw or (NG) tube, but recognizes that long-term tube feeding withhold life-sustaining treatment from patients who will require a surgical gastrostomy. The woman did not have mental retardation or a developmental disability appoint a health care proxy or leave clear and convincing can be made by an Article 17-A guardian under a special evidence of her wishes. The woman’s daughters believe state law enacted in 2002, known as the Health Care their mother would not want that operation, nor would Decisions Act for Mentally Retarded Persons (HCDA).12 she want continuous tube feeding for the short remainder Significantly, indeed remarkably, the Legislature amend- of her life. They request that the NG tube be removed, and ed the HCDA in 2007, with little controversy, to provide that she be given comfort care only. Again, in most states for the designation of a guardian without a court appoint- their decision could lawfully be honored. In New York, it ment for the purpose of making end-of-life decisions for would have been unlawful to honor their decision. a patient with mental retardation or a developmental To be sure, even before the FHCDA, many hospitals disability who meets clinical criteria. and nursing homes in New York (or their medical staff) But in many end-of-life decisions involving incapable would have given effect to the decisions of these families, patients, the issue concerns a treatment other than resus- believing in each case that it was the humane, respect- citation, there is no health care agent, and the patient is ful and medically appropriate course. They might have not mentally retarded. In such cases, the legal ability to tried to support their action by discerning “clear and

NYSBA Journal | June 2010 | 19 convincing evidence” from the family’s recollections of among other public policies, a New York State regulation the patient’s statements and values. Or they might have recognizing brain death (1986); New York’s do-not-resus- contended that the treatment was “medically futile” or citate law (1987); New York’s Health Care Proxy Law “medically inappropriate,” even though in each case it (1990); and a law restricting surrogate mother contracts would likely have been effective in keeping the patient (1993). alive a while longer. But it was hard to reconcile those In When Others Must Choose, the Task Force examined approaches with the harsh letter of the caselaw, par- the absence of authority of family members or friends to ticularly as articulated in O’Connor. For that reason, other make decisions for patients who lack capacity in New more cautious providers would have declined the fami- York. It reviewed the clinical, ethical and legal aspects of ly’s decision under these circumstances; they would have the problem. It recognized that most New Yorkers have kept the patient on the ventilator, or insisted upon the not appointed health care agents, and it found there was gastrostomy, even though in each case those approaches a need to give family members and others close to the are inconsistent with the family’s wishes and the patient’s patient some default authority to make health care deci- likely wishes. sions for those patients who lack capacity, and who did

Prior to the FHCDA, New York law was also deﬁ cient in providing family members with authority to consent to beneﬁ cial treatment for incapable patients.

Decisions to Consent to Treatment not previously make a decision themselves or appoint Prior to the FHCDA, New York law was also deficient a health care agent. The Task Force concluded that the in providing family members with authority to consent absence of such authority resulted in both undertreat- to beneficial treatment for incapable patients. A patch- ment and overtreatment of patients. work of laws and regulations provides such authority The Task Force went beyond just calling for reform. under certain circumstances, such as where the patient It advanced a specific legislative proposal to address previously appointed a health care agent, or where a the problem. The proposal (not called the Family Health court had appointed a guardian.13 But there was no Care Decisions Act until later) was similar in many statute or regulation that generally empowered fam- respects to the Task Force’s earlier proposal that led to ily members to consent to treatment when the patient New York’s DNR law. Specifically, it proposed a statute could not and scant caselaw support for such authority. that would set forth requirements for determining inca- To be sure, providers generally turned to family mem- pacity; allow the selection of a surrogate decision maker bers for consent anyway, and an exception in the New from a priority list, empower such surrogates to make York informed consent statute provided some protection health care decisions for patients who lack capacity and from liability for doing so.14 But this lacuna in decision- who could not make the decision themselves or appoint making authority was still problematic in many ways. a health care agent; require the surrogate to adhere to the For example, the absence of clear legal authority on the substituted judgment/best interests standard; and limit part of family members to consent to treatment also the circumstances in which a surrogate may authorize impaired the ability to secure other decisions relating the withholding or withdrawal of life-sustaining treat- to treatment, such as authorization for the disclosure of ment. protected health information.15 The Task Force sent its proposal to Governor Cuomo and to the state Legislature. In 1993 the proposal was 2. The Political Background introduced in the Assembly by Richard Gottfried When Others Must Choose (D-Manhattan), Chair of the Assembly Health Committee In March 1992, the New York State Task Force on Life and formerly the lead sponsor of the Health Care Proxy and the Law addressed this issue in its influential report, Act.17 Assemblyman Gottfried would prove to be a tena- When Others Must Choose: Deciding for Patients Without cious champion for the FHCDA. The bill was first intro- Capacity.16 The Task Force is a multidisciplinary panel duced in the Senate by John A. DeFrancisco (R-Onondaga) that was formed by New York Governor Mario Cuomo in 1995,18 but in most years thereafter it was sponsored by in 1985 and charged with studying and making policy Senate Health Chair Kemp Hannon (R-Garden City). recommendations for public policies on issues relating At the start, the bill’s prospects were strong. The Task to medical ethics and bioethics. Its earlier reports led to, Force had a remarkably successful track record of secur-

20 | June 2010 | NYSBA Journal ing enactment of its previous proposals, such as the DNR willing to allow surrogate end-of-life decisions for men- and Health Care Proxy laws. Those policies were gener- tally retarded patients, who are less likely to have formed ally regarded as successful, and the Task Force made the wishes and values, and who are more at risk of being compelling case that the FHCDA was a necessary and “devalued,” it should be willing to allow surrogate end- logical extension of the policies and principles it had pre- of-life decisions for other patients as well. viously advanced. Soon a large, impressive and diverse Also in 2003 the Family Decisions Coalition retained list of organizations announced their support for the an Albany lobbying firm, Malkin & Ross, which advo- FHCDA.19 An umbrella group called the Family Health cated for the FHCDA year after year, mostly on a pro Care Decisions Coalition emerged to coordinate activities bono basis. Moreover, in 2007, Assemblyman Gottfried in support of the FHCDA.20 managed – rather surprisingly – to secure the support of But at the same time, other factors impeded the prog- Right to Life for the FHCDA, largely by adding language ress of the bill. The New York State Catholic Conference, to emphasize the duty of providers to respect surrogate which was especially influential in the Republican- decisions that favored the provision of life-sustaining controlled state Senate, issued a memo opposing the bill. treatment.22 The Conference was concerned that aspects of the bill Perhaps most important, the attitudes of New Yorkers, devalued life and facilitated euthanasia. It emphasized including legislators, had gradually changed since 1993. its opposition to a provision that would allow ethics A consensus seemed to emerge that it was often quite committees to make end-of-life decisions for patients reasonable and not eccentric for a patient to want to opt who did not have surrogates and to the termination of for palliative rather than aggressive care toward the end life-sustaining treatment for pregnant women patients. of life. It also seemed to most New Yorkers that families The Conference also sought to limit the circumstances should be able to make these decisions for their dying, in which artificial nutrition and hydration could be incapable loved ones. stopped, and to protect the conscience rights of health All these developments boded well for the prospects care providers. Other organizations such as Agudath of enacting the FHCDA. Israel and New York State Right to Life expressed similar concerns. Over time, the bill was amended to meet some of the Conference’s concerns. For example, in 2002 both versions deleted the hospital-based process for making end- of-life decisions for patients without surrogates. But the Conference’s opposition generally continued. It was also significant that those New Yorkers who cared most about end-of-life decisions already had adequate means to protect their interests under law: they could create a health care proxy or living will. In a sense, the FHCDA sought to protect the interests of those who were not concerned enough about the matter to look out for themselves – akin to an intestacy law. Unsurprisingly, legislators did not often hear demands from grass-roots constituents for the bill. As a result of forces promoting and forces imped- ing the FHCDA, for many years each spring a rit- ual was played out in Albany: supporters would meet with legislators and secure an editorial or op-ed piece. Numerous organizations would go on record as supporting the bill, but none would put substantial resources into a lobbying effort. At the same time, the organizations opposed to the bill would make their influential opposition known, especially to the Senate. By the end of each session, the bill had died in committee in one or both houses. Beginning in 2002, a few developments offered new hope of securing enactment of the FHCDA. For one thing, that year the Legislature enacted the HCDA.21 FHCDA advocates argued that since the Legislature was

NYSBA Journal | June 2010 | 21 The Dispute Over “Fetus” and “Domestic Partner” That three-way review process was nearly complete Despite such developments, the bill was gridlocked for when the dramatic “coup” in the Senate in June 2009 several years by two issues that related more to the battles brought a halt to progress on all legislation, including the over abortion and gay/lesbian rights than to end-of-life FHCDA.24 Although staff ultimately finished that work decisions. First, in 2003 the Senate, at the request of the and identical bills were introduced in the final days of Catholic Conference, inserted in its version of the FHCDA the 2009 session, both houses adjourned before acting on a requirement that a surrogate, when making a decision them. about life-sustaining treatment for a pregnant patient, The bills were re-introduced in both houses in January must consider “the impact of the treatment decision on 2010 with only one change: a long-standing provision the fetus and on the course and outcome of the preg- stating that a surrogate’s decision was not required if nancy.” Although it was doubtful that the clause would the patient had made a prior decision personally was have any practical effect on surrogate decision making, amended to attach witnessing requirements to prior oral pro-choice members of the Assembly regarded the inser- decisions to forgo life-sustaining treatment.25 tion of the word “fetus” objectionable for symbolic and The Assembly passed the FHCDA on January 20 with a political reasons. As a result, for years the Assembly nearly unanimous bipartisan vote, and the Senate passed refused to support the FHCDA if it included the fetus it February 24, unanimously. On March 16, 2010, 17 years clause, while the Senate refused to support the FHCDA after the FHCDA was first introduced, Governor Paterson without the clause. signed the FHCDA into law. The Governor stated, “After Meanwhile, also in 2003, the Assembly introduced a nearly two decades of negotiations, New Yorkers now version of the bill that revised the surrogate priority list to have the right to make health care decisions on behalf of make the highest priority relative the “spouse or domestic family members who cannot direct their own care.”26 partner.” It did so both as a result of its growing support for gay/lesbian rights generally, but also because of the 3. Key Provisions of the FHCDA strong case for allowing a partner in a same-sex couple Key provisions of the FHCDA are summarized below. to make the health care decisions. However, the Senate The new law is detailed, however, and this summary indicated that it would not make that change in its ver- does not cover all its provisions. sion. As a result, for years the Senate refused to support the FHCDA if it included the domestic partner phrase, Applicability while the Assembly refused to support the FHCDA with- The FHCDA applies to decisions for incapable patients out such clause. in general hospitals and residential health care facilities FHCDA advocates were frustrated by this impasse (nursing homes).27 The statute uses the term “hospital” and wanted to return the focus of attention to the need to to apply to both those settings.28 The FHCDA does not allow humane decisions for dying patients. They repeat- apply to decisions for incapable patients who have a edly proposed ideas for compromising or bypassing health care agent;29 who have a court-appointed guard- these disputes, but without success – until 2009. ian under SCPA 1750-b;30 for whom decisions about life- sustaining treatment may be made by a family member or Enactment of the FHCDA close friend under SCPA 1750-b;31 or for whom treatment As a result of the November 2008 election – the elec- decisions may be made pursuant to OMH or OMRDD tion that brought Barack Obama into the White House – surrogate decision-making regulations.32 Democrats gained control of the state Senate for the first time in over 40 years. In early 2009 Senator Thomas Determining Incapacity Duane (D-Manhattan) became Chair of the Senate Health The FHCDA sets forth a hospital-based process to deter- Committee, and shortly thereafter he introduced a ver- mine that a patient lacks decisional capacity, but only sion of the FHCDA that tracked the Assembly version: for purposes of the FHCDA.33 The process requires spe- it excluded the “fetus clause” and included the domestic cial credentials for professionals for determining that a partner clause.23 The gridlock had ended. patient lacks capacity as a result of mental retardation In the spring of 2009, staff from the Governor’s office, or mental illness.34 It also requires that the patient and the Senate and the Assembly began to meet in the Capitol prospective surrogate be informed of the determination to scrutinize the language of the bill, and to identify and of incapacity35 and additional notifications for patients address technical and policy issues. Among the issues that from mental hygiene facilities.36 Notably, if the patient received particular three-way attention were the need to objects to the determination of incapacity, or the choice of clarify the settings where the FHCDA would apply and the surrogate, or the surrogate’s decision, the patient’s objec- need to address how the FHCDA would apply to persons tion prevails unless a court finds that the patient lacks who are already subject to the HCDA, or subject to OMH capacity or another legal basis exists for overriding the or OMRDD surrogate decision-making regulations. patient’s decision.37

22 | June 2010 | NYSBA Journal Decisions for Adult Patients by Surrogates would reasonably be deemed inhumane or exces- The statute sets forth, in order of priority, the persons sively burdensome under the circumstances; and who may act as a surrogate decision maker for the inca- • the attending physician and another physician pable patient, i.e.:38 determine that the patient has an irreversible or • an MHL Article 81 court-appointed guardian (if incurable condition.44 there is one); Significantly, inasmuch as the definition of life-sus- • the spouse or domestic partner (as defined in the taining treatment includes decisions about resuscitation, FHCDA); one of the two standards must be met for surrogate con- • an adult child; sent to a DNR order as well.45 As a practical matter, in • a parent; most of the cases where a DNR order could have been • a brother or sister; or entered under the DNR law, the order can be entered • a close friend (as defined in the FHCDA). under the FHCDA. The surrogate has the authority to make all health care decisions for the patient that the adult patient could make for himself or herself, subject to certain standards and limitations.39 FHCDA requires the surrogate A surrogate’s consent is not required if the patient to base his or her decision already made a decision about the proposed health care, expressed orally or in writing, or with respect to a deci- on the patient’s wishes. sion to withdraw or withhold life-sustaining treatment expressed either orally during hospitalization in the presence of two witnesses or in writing.40 But since a The two standards also apply to decisions regarding surrogate must base his or her decision on the patient’s artificial nutrition and hydration (e.g., the provision of wishes if they are reasonably known, even if a patient’s nutrition or hydration by a tube inserted through the prior oral decision cannot be honored directly, a surrogate nose, stomach, or vein). Decisions regarding the provi- will have to give that statement appropriate weight in sion of food and drink are not considered health care making a decision. decisions and are outside the scope of the statute.46 The FHCDA requires the surrogate to base his or her decisions on the patient’s wishes, including the patient’s Decisions for Minor Patients religious and moral beliefs. If the patient’s wishes are The statute authorizes the parent or guardian of a minor not reasonably known and cannot with reasonable dili- patient to decide about life-sustaining treatment under gence be ascertained, the surrogate must base decisions the same two end-of-life standards that apply to sur- on the patient’s best interests, a term explained in the rogate decisions for adults.47 However, the parent or statute.41 guardian must make the decision in accordance with the minor’s best interests, taking into account the minor’s Surrogate Decisions to Withdraw or Withhold wishes as appropriate under the circumstances.48 Life-Sustaining Treatment If the attending physician determines that the minor The FHCDA authorizes surrogate decisions to withhold has the capacity to decide about life-sustaining treatment, or withdraw life-sustaining treatment only if one of two the minor’s consent is required to withhold or stop treat- standards is met. ment.49 If there is another parent who is unaware of the First, life-sustaining treatment can be withdrawn or decision, the law requires an attempt to inform such par- withheld if: ent of the decision.50 • the surrogate determines42 that treatment would be The statute allows a physician to accept a life-sustain- an extraordinary burden to the patient, and ing treatment decision by an emancipated minor without • the attending physician and another physician parental consent, although a decision by the minor to determine that the patient: forgo such treatment requires ethics review committee • is terminally ill (i.e., has an illness or injury approval.51 that can be expected to cause death within six months, whether or not treatment is provided); Decisions for Adult Patients Without Surrogates or One of the most significant features of the FHCDA is • is permanently unconscious. that it establishes a procedure to secure a decision (it Second, life-sustaining treatment can be withdrawn or is probably not accurate to call it “consent”) to provide withheld if: needed treatment for incapable patients who have no • the surrogate determines43 that treatment would family members or close friends who could act as the involve such pain, suffering or other burden that it surrogate.52 Prior to the FHCDA, in such cases the pro-

NYSBA Journal | June 2010 | 23 vider might either go to court for the appointment of a Other FHCDA Provisions guardian or approval of the treatment, or fashion some The FHCDA also legally dubious “administrative consent,” or wait for the • sets forth the right of private hospitals and indi- patient’s need for the treatment to become so urgent that vidual health care providers to refuse, on grounds of treatment could be provided under the emergency excep- moral or religious conscience, to honor health care tion to the informed consent requirement. decisions made pursuant to the FHCDA, subject The FHCDA addresses the problem first by requir- to limits and requirements (e.g., the facility must ing hospitals, after a patient is admitted, to determine notify patients of its policy prior to admission and if the patient has a health care agent, guardian, or promptly transfer responsibility for the patient to person who can serve as the patient’s surrogate. If the another health care professional willing to honor the patient has no such person, and lacks capacity, the hos- decision).59 pital must identify, to the extent practical, the patient’s • protects surrogates, health care providers and ethics wishes and preferences about pending health care deci- committee members from civil and criminal liability sions.53 for acts performed in good faith pursuant to the FHCDA.60 • provides that liability for the cost of health care Decisions to withdraw or provided to an adult patient under the FHCDA is the same as if the patient had consented to treat- withhold life-sustaining treatment ment.61 from isolated incapable patients • establishes that the FHCDA does not: • expand or diminish any authority an individual are strictly limited. may have to express health care decisions for himself or herself;62 • affect existing law concerning implied consent to With respect to routine medical treatment, the stat- health care in an emergency;63 ute simply authorizes the attending physician to decide • permit or promote suicide, assisted suicide, or about such treatment for patients without surrogates.54 euthanasia;64 For decisions about major medical treatment, the attend- • diminish the duty of parents to consent to treating physician must consult with other health care pro- ment for minors.65 fessionals directly involved with the patient’s care, and • provides that a hospital or attending physician a second physician selected by the hospital or nursing that refuses to honor a health care decision made home must concur in the decision.55 The treatment can by a surrogate in accord with the standards set then be provided. forth in the FHCDA is not entitled to compensa- In contrast, decisions to withdraw or withhold life- tion for treatment provided without the surro- sustaining treatment from isolated incapable patients are gate’s consent, except under specified circumstanc- strictly limited. Such decision can be made only (1) by a es.66 court, in accordance with the FHCDA surrogate decision- making standards; or (2) if the attending physician and a DNR-Related Provisions second physician determine that the treatment offers the The statute eliminates much of New York’s DNR law as patient no medical benefit because the patient will die applied to hospitals and nursing homes, and provides imminently, even if the treatment is provided, and the for such decisions to be made in accordance with the provision of the treatment would violate accepted medi- standards and procedures in the FHCDA.67 However, the cal standards.56 statute then creates a new PHL Article 29-CCC as a place to retain (with some modifications) existing provisions on Ethics Review Committees nonhospital DNR orders.68 A helpful revision to the non- The FHCDA requires hospitals and nursing homes to hospital provisions obligates home health care agency establish or participate in an ethics review committee staff and hospice staff to honor nonhospital DNR orders (ERC) that has diverse membership, including commu- (previously, nonhospital DNR orders were directed only nity participation.57 The ERC, which can operate through to emergency medical services and hospital emergency subcommittees, must be available to try to resolve dis- personnel).69 putes if less formal efforts fail. Its role is strictly advi- The statute also renames the former DNR law, PHL sory, however, except in two respects: ERC approval is Article 29-B, as “Orders Not to Resuscitate for Residents required for certain decisions to withdraw or withhold of Mental Hygiene Facilities,” to preserve existing rules life-sustaining treatment in nursing homes, and to affirm regarding DNR orders in those settings.70 decisions to forgo treatment by emancipated minors.58

24 | June 2010 | NYSBA Journal Health Care Proxy Law Amendments those efforts will need to extend well beyond the effective Chapter 8 amends the Health Care Proxy Law to require date. a provider, when an agent directs the provision of life- On the positive side, several factors should aid in the sustaining treatment, to provide the treatment, transfer prompt implementation of the FHCDA. First, the FHCDA the patient, or seek judicial review.71 This mirrors a is similar in structure to the DNR law that it supersedes, similar provision in the FHCDA. The statute also amends so providers and others will find its key concepts and the proxy law to adopt the FHCDA provisions regarding procedures familiar. Moreover, statewide hospital and institutional and health care provider conscience.72 nursing home associations promptly and collectively made available to their members model policies and Amendments to Guardianship Laws forms to implement the FHCDA. The developers of (MHL Article 81 and SCPA 1750-b) MOLST (Medical Orders for Life-Sustaining Treatment) The statute amends New York’s guardianship law, MHL also quickly revised their forms to reflect FHCDA princi- Article 81, to authorize a guardian of the person to act as a ples. Other educational programs and materials (includ- surrogate under the FHCDA for decisions in hospitals.73 ing this article) are rapidly emerging. It also repeals provisions in MHL Article 81 that restricted With patience and persistence on the part of provid- the authority of a guardian to make life-sustaining treat- ers, and with patience and forbearance on the part of ment decisions.74 regulators, the FHCDA can be implemented soon and The statute amends the HCDA (SCPA 1750-b) to insert implemented well in facilities across the state. a definition of “life-sustaining treatment” (because previously it referred to a definition in MHL Article 81 that The Adequacy of Safeguards was repealed).75 The most significant change made by the FHCDA is that it empowers family members to direct the withdrawal of Assignments for the Task Force on Life and Law life-sustaining treatment in the absence of clear and con- Chapter 8 directs the Task Force on Life and the Law to vincing evidence of a patient’s wish to forgo treatment. In create a special committee to provide advice on standards lieu of the unrealistic and harsh clear and convincing evi- and procedures for surrogate decision making for persons dence standard, the statute institutes safeguards, includ- with mental retardation/developmental disability and ing these: it requires the attending physician and another persons in metal health facilities. The committee must physician to make specific clinical findings; it requires include members appointed by OMRDD and OMH.76 the surrogate to make certain non-clinical findings about Finally the new law also directs the Task Force to the burdens of the treatment; it obligates the surrogate to make recommendations on extending FHCDA decision- base his or her decision on the patient’s wishes if known, making standards and procedures to other settings, such or else the patient’s best interests; it allows persons con- as physician offices and home care.77 nected with the case to challenge a decision. There is ample reason to have confidence in the 4. Emerging Issues adequacy of these safeguards, and confidence that the Enactment of the FHCDA will direct the attention of health lawyers, policymakers, patient advocates and health care providers toward several issues. Here are a few:

The Challenge of Implementation The FHCDA is not short and simple, and it will take time and consider- able effort for health care providers, health lawyers and others to famil- iarize themselves with its requirements and to implement it in practice. Unexpectedly, the lead time between enactment (March 16, 2010) and the effective date (June 1, 2010) was extremely brief. As a result, providers need to scramble to conduct training and implementation efforts; clearly

NYSBA Journal | June 2010 | 25 statute will in fact improve the quality of end-of-life deci- subject research regulations allow a “Legally Authorized sion making. But it is essential to empirically confirm Representative” to give consent for incapable patients to that expectation. Policymakers, health care profession- be enrolled in research protocols.80 A “Legally Authorized als, patient advocates, medical ethicists, academics and Representative” includes a person “authorized under others need to study the experience under the FHCDA applicable law to consent on behalf of a prospective subject across the state and ensure that the safeguards and other to the subject’s participation in the procedure(s) involved provisions are working as intended. in the research.”81 Thus the FHCDA would appear to give the surrogate such authority in many cases. This is The Performance of Ethics Review Committees a positive development in important respects: it expands For the first time, all hospitals and nursing homes in access by incapable patients to promising clinical trials New York will be required to create or participate in eth- and facilitates medical advances in the treatment of con- ics review committees.78 The clear objective of ERCs is ditions that cause mental incapacity. But it also poses new to provide a relatively impartial mechanism to resolve ethical concerns. An emerging issue is determining the disputes and to provide oversight of the most sensitive extent to which the FHCDA has opened the door to sur- decisions. But there is no assurance that ERCs will per- rogate consent for human subject research, and the extent form these functions well. Moreover, it is unclear how to which the state should seek to regulate such research. facilities can or will reconcile the role of ERCs with other This is yet another issue the Task Force on Life and the facility-based ethics initiatives, such as ethics consultation Law is examining. services.79 Mechanisms must be devised to measure and continually improve the quality of ERCs, and research Conclusion should be conducted on the merits and demerits of this The FHCDA authorizes a family member or close friend part of the statute. to make health care decisions, including end-of-life decisions, for a patient who lacks decisional capacity, subject Extending the FHCDA to Other Settings to substantive and procedural safeguards. Ultimately, the The FHCDA applies only in hospital and nursing home FHCDA is best viewed as an effort to align New York law settings. Yet the need for surrogate decision making can with sound clinical practice and broadly accepted prin- arise in any setting where health care is provided, includ- ciples of medical ethics. To be sure, it will be challenging ing a diagnostic and treatment center, physician’s office, to implement the FHCDA well, and it will be necessary dentist’s office, assisted living residence, or home care to identify and correct its flaws and gaps, and respond to situation. Of particular urgency is the need to allow sur- the issues it raises. But from the outset the FHCDA will rogate decisions to elect hospice for an incapable patient, provide relief from the harsh aspects of prior law, and irrespective of where the surrogate makes the decision. over time the law can be expected to enhance the quality But many of the safeguards in the FHCDA are designed of decision making for incapable patients. ■ for the hospital or nursing home setting, such as concurring opinion requirements and reliance upon ERCs. As 1. 2010 N.Y. Laws ch. 8, A.7729-D (Gottfried et al.) and S.3164-B. (Duane et al.). Section 2 of Chapter 8 amends N.Y. Public Health Law (PHL) to create a result, extending the FHCDA to other settings is not a “Article 29-CC Family Health Care Decisions Act.” simple matter. A key emerging issue for the Task Force 2. 2010 N.Y. Laws ch. 8, § 29. on Life and the Law is to devise a way to accomplish this 3. 211 N.Y. 125 (1914). extension in a responsible and practical manner. 4. 52 N.Y.2d 363, 438 N.Y.S.2d 266 cert. denied, 454 U.S. 858 (1981). 5. 75 N.Y.2d 218, 551 N.Y.S.2d 876 (1990). Decision Making for 6. 497 U.S. 261 (1990). Developmentally Disabled Persons 7. 52 N.Y.2d 363. As noted previously, surrogate decisions are already 8. 72 N.Y.2d 517, 531, 534 N.Y.S.2d 886 (1988). being made for developmentally disabled persons pursu- 9. Id. ant to the HCDA. Some advocates believe that the HCDA 10. PHL art. 29-B. offers a better approach to surrogate decision making 11. PHL art. 29-C. than the FHCA; other advocates favor extending the 12. Surrogate’s Court Procedure Act 1750-b (SCPA). FHCDA to that population, perhaps with amendments or 13. PHL art. 29-C; N.Y. Mental Hygiene Law art. 81 (MHL). special provisions. The Task Force was directed to form a 14. PHL § 2805-d(4)(c) . subcommittee to address this issue. 15. See 45 C.F.R. § 164.502(g)(2) (A HIPAA-covered entity must honor decisions about protected health information made by an adult’s ”personal representative,” i.e., a person who has “authority to act on behalf of [the adult] in Surrogate Consent to Human Subject Research making decisions related to health care.”). The FHCDA has indirectly impacted other laws and 16. NYS Task Force on Life and the Law, When Others Must Choose: Deciding regulations that refer to the authorized health care deci- for Patients Without Capacity (March 1992) available at http://www.health.state. sion maker. Perhaps most significant, federal human ny.us/nysdoh/taskfrce/inforpts.htm.

26 | June 2010 | NYSBA Journal 17. A.7166 (1993). The bill was not named the “Family Health Care Decisions 61. PHL § 2994-p. Act” until 1995. 62. PHL § 2994-q(1). 18. S.4685 (1995). 63. PHL § 2994-q(2). 19. Among the supporting organizations were: AARP; American College 64. PHL § 2994-q(3). of Physicians; Association of the Bar of the City of New York; Friends of the Institutional Elderly; Gay Men’s Health Crisis; Greater New York Hospital 65. PHL § 2994-q(4) Association; Medical Society of New York State; Healthcare Association of 66. PHL § 2994-s. New York State; Nurses Association of New York State; NYS Association of Homes and Services for the Aging; NYS Health Care Facilities Association; 67. See 2010 N.Y. Laws ch. 8, § 4, which amends PHL art. 29-B – the DNR NYS Bar Association; NY Civil Liberties Union; NYS Hospice and Palliative law – to make it applicable only to mental hygiene facilites. See also new PHL Care Association; SEIU Local 1199; StateWide Senior Action Council. § 2994-a(19) (defining “life-sustaining treatment” to include cardiopulmonary resuscitation). 20. See Family Decisions Coalition, http://www.familydecisions.org. 68. 2010 N.Y. Laws ch. 8, § 2, adding PHL art. 29-CCC Nonhospital Orders Not 21. 2002 N.Y. Laws ch. 500. to Resuscitate. 22. Enacted at PHL §§ 2984(5), 2994-f(3). 69. PHL § 2994-ee. 23. S.3164-B (Duane). 70. PHL art. 29-B. 24. Republicans Seize Control of State Senate, http://cityroom.blogs.nytimes. 71. 2010 N.Y. Laws ch. 8, § 23. amending PHL § 2984(3). com/2009/06/08/revolt-could-imperil-democratic-control-of-senate (June 8, 2009, 15:50 EST). 72. 2010 N.Y. Laws ch. 8, § 23, adding PHL § 2984(5). 25. Enacted at PHL § 2994-d(3)(ii). 73. 2010 N.Y. Laws ch. 8, § 25, amending MHL § 81.22.8. 26. Press Release, Office of Governor Paterson, Governor Paterson Signs Family 74. 2010 N.Y. Laws ch. 8, § 25, repealing MHL § 81.22.9(e). Health Care Decisions Act into Law (Mar. 16, 2010), available at http://www.state. 75. 2010 N.Y. Laws ch. 8, § 27, amending SCPA 1750-b. ny.us/governor/press/031610FHCDA.html. 76. 2010 N.Y. Laws ch. 8, § 28(1). 27. PHL § 2994-b(1). 77. 2010 N.Y. Laws ch. 8, § 28(2). 28. PHL § 2994-a(18). 78. PHL § 2994-m. Since 1992, the Joint Commission on the Accreditation 29. PHL § 2994-b(2). of Healthcare Organizations has required hospitals to have a mechanism to 30. PHL § 2994-b(3)(a). address ethical issue, but it has never specifically mandated ethics committees. Similarly, since 1997, New York’s DNR law has required facilities to have 31. PHL § 2994-b(3)(b). a dispute mediation system, but does not require ethics committees for that 32. PHL § 2994-b(3)(c). purpose. PHL § 2972. 33. PHL § 2994-c. 79. The statute helpfully notes that the ERC requirement does not “bar [providers] from first striving to resolve disputes through less formal means, 34. PHL § 2994-c(3)(c). including the informal solicitation of ethical advice from any source.” PHL 35. PHL § 2994-c(4)(a), (b). § 2994-m. Accordingly, a hospital’s ethics consultation service or chaplain’s 36. PHL § 2994-c(4)(c). office could still serve as a first line of guidance or attempted resolution of a dispute. 37. PHL § 2994-c(6). 80. 45 C.F.R. § 46.116. 38. PHL § 2994-d(1). 81. 45 C.F.R. § 46.102. 39. PHL § 2994-d(3)(i). 40. PHL § 2994-d(3)(ii). 41. PHL § 2994-d(4). 42. The statute does not explictly give this responsibility to the surrogate, but it is implict in the structure of the clause. 43. See PHL § 2994-c(6). 44. PHL § 2994-d(5) 45. PHL § 2994-a(19). 46. PHL § 2994-a(12). 47. PHL § 2994-e(1). 48. PHL § 2994-e(2)(a). 49. PHL § 2994-e(2)(b). 50. PHL § 2994-e(2)(c). 51. PHL § 2994-e(3). 52. PHL § 2994-g. 53. PHL § 2994-g(1). 54. PHL § 2994-g(3). 55. PHL § 2994-g(4). 56. PHL § 2994-g(5). 57. PHL § 2994-m. 58. PHL § 2994-m(2). 59. PHL § 2994-n. 60. PHL § 2994-o.

NYSBA Journal | June 2010 | 27 Assisted Outpatient Treatment: May the Sun Continue to Shine on Kendra’s Law

By Martin Schoenfeld

s New York County’s senior presiding judge with the appearance of sensational news stories when the over mental hygiene matters relating to the mentally ill are involved in violent crimes. For example, Amentally ill, I conduct hearings at hospitals such according to media reports, in February 2008 David as Bellevue and Kirby Forensic Psychiatric Center. The Tarloff, a person with a long history of mental illness type of hearings, conducted primarily under Article 9 and prior hospitalizations, allegedly slashed his former of the N.Y. Mental Hygiene Law (MHL), include those psychiatrist and fatally stabbed a psychologist who to release,1 retain,2 and medicate over objection.3 Also shared office space with the psychiatrist.7 At the time included are assisted outpatient treatment hearings, of the incident, Mr. Tarloff had a strange plan to rob the which are governed exclusively by MHL § 9.60, known psychiatrist and use the money to “rescue” his mother as “Kendra’s Law.” from a nursing home and take her to Hawaii.8 In editorials about the incident, writers opined about whether the Introduction application of Kendra’s Law could have prevented this Under Kendra’s Law, a judge may order assisted outpa- violent episode.9 tient treatment (AOT) for those mentally ill individuals The law itself was named after Kendra Webdale, a who are unlikely to survive in the community without young woman who, on January 3, 1999, was pushed certain services and who, based on their histories, would off a subway platform and killed by an oncoming train. not seek those services voluntarily. These services may The man who pushed her was a paranoid schizophrenic include medication, talk therapy, treatment for alcohol or who had neglected to take his prescribed medication.10 substance abuse, and educational and vocational training, However, despite repeated references to Kendra’s Law as as well as housing.4 There might also be money manage- protection for society against violent acts by mentally ill ment services.5 The judge’s order will require monitoring individuals, the vast majority of those with mental illness and evaluating the recipient either by individual social workers or case management teams.6 MARTIN SCHOENFELD is an Associate Justice, Appellate Term, First Judicial Background District. The author expresses his gratitude to his staff for their assistance Although the public might not know the specifics of with this article. Kendra’s Law, public interest in this statute increases

28 | June 2010 | NYSBA Journal are not violent. They are far more likely to be the victims hearing, the resulting order, the consequence to a recipi- rather than the perpetrators of violence.11 ent for noncompliance, and the renewal of an order.20 Kendra’s Law was adopted to provide the resources The procedure begins with the filing of a petition in and oversight necessary for a viable, less-restrictive the supreme or county court in the county in which the alternative to hospitalization. Its purpose is to enable the person allegedly in need of AOT is present.21 The court mentally ill to lead more productive and dignified lives, may order that an individual 18 or older receive AOT while at the same time reduce the risk of danger posed by only if the judge finds that the individual those mentally ill individuals who refuse to comply with • suffers from a mental illness; necessary treatment.12 • is unlikely to survive safely in the community with- The idea of outpatient treatment commitment was out supervision; first proposed in New York in 1989, but it faced opposi- • historically has not complied with treatment for his tion from civil liberties and consumer advocacy groups.13 or her mental illness;22 In later years, press coverage began to focus on the prob- • is unlikely to participate voluntarily in outpatient lem of having “revolving door” patients. These patients treatment; would appear stable in a hospital setting but, upon dis- • needs AOT to prevent relapse or deterioration that charge, would deteriorate while in the community due would be likely to result in serious harm to self or to insufficient community resources and the patients’ others; and own inability or unwillingness to comply with treatment. • is likely to benefit from AOT.23 These individuals frequently returned to costly inpatient The class of persons who may petition for involuntary admissions. This led to significant media attention and to AOT of a mentally ill person is limited. Among those who increased efforts to pass legislation.14 may petition for AOT are In 1999, New York State adopted MHL § 9.60.15 The • an adult (18 years or older) who lives with the indi- statute provides a process to issue court orders requiring vidual; both compulsory outpatient treatment and immediate • his or her parents, spouse, adult siblings, or adult access to care. A judge not only directs that the recipient children; comply with outpatient treatment but further mandates • the hospital director where the individual is hospi- that local health agencies provide the individual with talized; essential services. To date, Kendra’s Law has survived all • those who provide mental health services to the constitutional challenges.16 individual, including psychiatrists, psychologists, Kendra’s Law is a “sunset” statute; it will automati- and social workers;24 and cally expire on June 30, 2010, unless formally renewed. • a parole or probation officer assigned to the The law was originally enacted for a five-year period and patient.25 was renewed for an additional five years in 2005.17 At A physician’s affidavit or affirmation must accompany that time, the Legislature directed that the Commissioner the petition.26 That physician “shall not” be the same per- of the Office of Mental Health (OMH) contract with an son as the petitioner.27 In the affidavit or affirmation, the external research organization to evaluate the AOT pro- physician must state that he or she is able to testify at the gram’s implementation and effectiveness.18 OMH con- hearing. In addition, the affidavit must include a state- tracted with the Department of Psychiatry and Behavioral ment that no more than 10 days before filing the petition Sciences at Duke Medical Center and subcontracted with • the physician personally examined the patient and Policy Research Associates, Inc., of Delmar, New York recommends AOT; or (collectively referred to as “Duke”). On June 20, 2009, • the physician unsuccessfully attempted to examine Duke, having completed its evaluation, wrote a favorable the patient,28 is willing and able to examine the report.19 patient, and has reason to suspect that the patient This article will review the basic statutory procedure meets the requirements for AOT.29 to obtain an AOT order, briefly discuss the Duke report, The court must set a hearing date within three busi- and explore the need to amend Kendra’s Law to allow ness days from receipt of the petition.30 At the hearing, more judicial discretion. the subject of the petition is entitled to have an attorney present. He or she has the right to be represented by Obtaining an AOT Order either Mental Hygiene Legal Service or privately financed The procedure governing the issuance of an AOT order counsel. The right to counsel applies at all stages of the includes eligibility requirements, categories of those per- proceeding.31 The subject of the petition must be afforded sons who may petition the court to obtain an order, the an opportunity to present evidence, call witnesses, and content of the petition, the requirements of a proposed cross-examine adverse witnesses.32 accompanying treatment plan, the mechanics of the court An AOT order may not be issued unless a doctor gives the court a written treatment plan by the date of the

NYSBA Journal | June 2010 | 29 hearing.33 Further, the physician who recommends AOT ents to engage actively in treatment; evaluates the recipi- must not only have personally examined the patient, he ents’ perception of AOT; assesses the success of AOT on or she must personally testify at the hearing.34 The mere rates of hospitalization, arrest, homelessness, violence, submission of a petition and doctor’s affidavit or affirma- suicide, and substance abuse; and considers the regional tion at the hearing cannot serve as sufficient evidence to and cultural differences in AOT implementation through- authorize AOT.35 If the subject of the petition refused to out New York State.46 The Duke report is based on OMH be evaluated, the judge, on reasonable cause, may direct surveys, AOT administrative statistics, hospital admis- that the subject be placed in custody and transferred to a sion records, case management reports, Medicaid claims, hospital for up to 24 hours, to be examined.36 and arrest records, as well as on personal interviews with At the hearing, the physician is required to show not key program stakeholders and service recipients.47 only that the subject of the petition meets the criteria for According to the Duke report, most of New York AOT but also that the recommended treatment is the least State’s experience with AOT originates in New York City, restrictive alternative.37 Further, the doctor must describe where approximately 70% of all AOT cases are found. In in detail the type of outpatient treatment recommended, some outside counties, AOT has either been rarely used including any medication, and must give the rationale for or not used at all.48 Ideally, AOT can be utilized as a pre- using the recommended treatment.38 ventive measure to avoid deterioration before hospital-

AOT is used mostly as a transition plan to ensure treatment following hospitalization, with the expectation of reducing hospital recidivism.

If, at the conclusion of the hearing, the judge does not ization is needed. In nearly 75% of all cases, however, it is find by clear and convincing evidence that the subject of employed as part of a safe discharge plan for hospitalized the petition meets the criteria for AOT, the petition must patients. Thus, AOT is used mostly as a transition plan be dismissed.39 The subject is released from the hospital to ensure treatment following hospitalization, with the or, if not in a hospital, remains in the community without expectation of reducing hospital recidivism.49 conditions.40 If the petitioner has established by clear and A key goal of the AOT program is to motivate recipi- convincing evidence that the subject meets the criteria, the ents to participate actively in community-based treatment judge may order the person to receive AOT for an initial and services. In this regard, the Duke report discusses the period not to exceed six months.41 In the order, the judge program’s reliance on case managers. According to the must make specific findings that the proposed treatment report, Assertive Community Treatment teams, known plan is the least restrictive treatment appropriate for the as ACT teams, serve as a unified group in approximately subject and shall include in the order all categories of 20% of the cases to provide all the recipients’ needs.50 treatment that the assisted outpatient is to receive.42 At ACT teams generally consist of a psychiatrist, a nurse, the appropriate times, the initial order may be renewed and other professionals such as vocational, family well- for successive periods of up to one year each, upon the ness, and substance abuse treatment specialists. ACT is filing of a renewal petition and a further hearing.43 designated for persons with severe mental illness who Although AOT is provided under court order, failure are difficult to serve in conventional outpatient mental to comply with that order is not a ground for contempt health settings.51 of court or for involuntary commitment.44 Kendra’s Law The more common type of management assis- allows only one remedy. If, in the physician’s judgment, tance, according to the report, is called Intensive Case an outpatient is noncompliant with the treatment plan, Management, or ICM.52 Generally, with ICM, a social the physician may request that the individual be removed worker assists recipients to ensure that their medical, to a hospital for observation and immediate treatment. housing, employment, and other requirements are Once in the hospital, the patient may not be retained for met. With ICM, however, separate providers supply more than 72 hours unless a new admission proceeding the services and are not part of an all-purpose team. is commenced in accordance with other provisions of the Thus, an ICM worker does not dispense services such MHL.45 as medication, as an ACT team would. Instead, the case worker is more like a personal assistant, helping recipi- The Duke Report ents comply with AOT orders by coordinating their Consistent with its legislative mandate, the Duke report various services. In my experience, recipients who fail discusses the impact of AOT on New York’s mental health treatment plans with ICM are often thereafter given an system; reviews whether AOT programs motivate recipi- ACT team.

30 | June 2010 | NYSBA Journal The Duke report, in its summary, states that AOT patient’s discharge was “totally inappropriate.”62 There, orders exert a critical effect on service providers, stimu- the patient had a lengthy history of prior hospitaliza- lating their efforts to prioritize care for AOT recipients.53 tions and a long-standing record of criminal arrests for Among other findings, the report shows that perceptions sexual misconduct and assaultive behavior. Although the of the AOT program – experiences of stigma or coercion, patient was diagnosed with both schizophrenia and anti- treatment satisfaction – appear largely unaffected by social personality disorder, the hospital admittedly failed participation in the program and are more likely shaped to treat the latter, notwithstanding its acknowledgment by other experiences with mental illness and treatment.54 that during his current hospitalization the patient had Also, of great significance, the report finds that although “engaged in outrageous and facially illegal activity.”63 there is an over-representation of minorities in AOT pro- The judge, “well aware” of the Appellate Division’s grams, this ratio is influenced more by social and system- opinion in In re Manhattan Psychiatric Center that the only ic variables, such as multiple hospitalizations in public issue before the court is whether to order AOT, remarked: facilities and poverty levels that may correlate with race, “The court is powerless to prevent the occurrence of and is not the result of racially biased implementation.55 what is an obvious abuse of discretion by the [hospital] Finally, based on statistical evidence, the report concludes in deciding to discharge this man.”64 He then granted the that those receiving successive periods of AOT have a petitioner’s AOT application, stating that “[s]ociety and lower incidence of arrest and hospitalization, are more this patient are better served by this woefully inadequate compliant with treatment, and are better able to handle outpatient treatment plan than by no treatment plan.”65 medication and personal finances.56 On occasion, it also has been clear to me that, even with an AOT order, a patient might not be ready for dis- Judicial Discretion charge into the community. I recall one case in which a Lack of Discretion patient’s family was against his being released from the Under Kendra’s Law, the judge’s role is limited to deter- hospital, and he refused to consent to outpatient treat- mining whether a petitioner has demonstrated that the ment. His demeanor in the courtroom was extremely statutory requirements for AOT have been met. The bizarre. During the AOT hearing, his behavior became appropriateness of releasing a patient from a hospital, or more and more unpredictable. I expressed my concern of allowing a mentally ill person who is already in the that by discharging him, the hospital was not acting in community to continue to reside there, is a function of the this patient’s best interest. The psychiatrist, however, hospital’s director and is not before the court at an AOT testified that the patient was a malingerer who under- hearing. This lack of judicial discretion was clearly stated stood what was expected of him under AOT. As the only by the Appellate Division, First Department in its unani- options were either granting or denying AOT, I signed mous decision in In re Manhattan Psychiatric Center.57 the order. As the patient was leaving the courtroom, he In that case, the lower court judge, seeking to clarify totally decompensated, had to be physically restrained, the statute, held in abeyance an order regarding a hospi- and was re-admitted to the hospital on an emergency tal’s AOT application for a patient whose history included basis. such incidents as jumping from a five-story building and striking his father in the eye with a bottle. While recogniz- Discretion as a Safeguard ing that the judge “was obviously, and understandably, Proportionally, the number of situations such as the three troubled that such a patient may be released at all,”58 the just discussed are small compared to the overall num- Appellate Division nevertheless reversed and granted ber of AOT cases heard. Considering, however, that in the order, stating that “the question for the court is not Manhattan alone more than 700 AOT hearings were con- whether the patient should be released, but whether he ducted last year, the need for greater judicial discretion should be released with or without an AOT order.”59 The exists. Therefore, I propose that the statute be amended opinion further stated that to enable judges, at the time of the hearing, to direct upon no measure of discretion would be sufficient to permit good cause shown that the subject of an AOT petition a court to bar the release of a hospitalized patient . . . be retained for not more than 24 hours for observation. as an alternative to ordering AOT, because Kendra’s If, during that period, the hospital’s director concludes Law does not place that decision before the court. The that further retention is warranted, a new proceeding in statute provides that “[n]othing in this section shall be accordance with the other provisions and constitutional construed to affect the ability of the director of a hos- safeguards set forth in the MHL shall be commenced. If pital to receive, admit or retain patients who otherwise meet the provisions of this article regarding receipt, the director still believes that release is appropriate, the retention or admission. (§ 9.60[q]).”60 AOT proceeding must then be continued until comple- tion. The limited restriction on the individual’s liberty is Thereafter, in In re Endress,61 the judge granted a a small price for safeguarding the patient’s welfare and hospital’s AOT petition, despite his opinion that the the public’s safety.

NYSBA Journal | June 2010 | 31 At the very least, judges should be provided with peri- 10. See People v. Goldstein, 6 N.Y.3d 119, 122, 810 N.Y.S.2d 100 (2005); Anemona Hartocollis, A Mother Relives Her Anguish; a Subway Killer is Sentenced, N.Y. odic status reports. This would help ensure that upon a Times, Nov. 3, 2006, available at http://www.nytimes.com/2006/11/03/ recipient’s leaving the hospital, or remaining in the com- nyregion/03kendra.htm (last visited Apr. 17, 2010). munity, those responsible for that person’s well-being 11. Michael F. Hogan et al., NYS/ NYC Mental Health-Criminal Justice Panel, comply with the AOT order. These reports could also be Report and Recommendations, June 2008, at 9. used to assist judges in assessing an outpatient’s progress 12. In re K.L., 1 N.Y.3d 362, 366–67, 774 N.Y.S.2d 472 (2004). (particularly useful because not all recipients appear at 13. Howard Telson, Bellevue Pilots Outpatient Commitment Program, 13 Am. 66 Ass’n of Community Psychiatrists Newsletter 4 (1999), available at http:// the AOT hearings), and to alert the court about any www.wpic.pitt.edu/aacp/Vol-13-4/regional13-4.html. significant events that might cause concern for decom- 14. Id. 15. Kendra’s Law, 1999 N.Y. Laws ch. 408. 16. See, e.g., K.L., 1 N.Y.3d at 367; In re Urcuyo, 185 Misc. 2d 836, 849, 714 MHL § 9.60 should be N.Y.S.2d 862 (Sup. Ct., Kings Co. 2000). 17. See 2005 N.Y. Laws ch. 158 § 1. amended to permit more 18. 2005 N.Y. Laws ch. 158 § 6. 19. Marvin S. Swartz et al., New York State Assisted Outpatient Treatment judicial discretion. Program Evaluation (2009) (“Duke Report”). 20. The New York State Office of Mental Health provides sample legal forms that include an order to show cause, a verified petition, a physician’s affirma- pensation. Currently, social workers regularly report to tion, and a final order/judgment. These forms are available on the Office of Mental Health’s Web site at http://bi.omh.state.ny.us/aot/about?p=kl-forms. AOT program directors, who must submit written quar- 21. MHL § 9.60(e)(1). terly reports to the program coordinators.67 The reports 22. The statute sets forth specific criteria to determine whether the patients document changes in an outpatient’s treatment plan such have a history of lack of compliance with treatment for their mental illness. A as a change in medication or in living arrangements and lack of compliance must have been either: are also intended to help ensure that requisite services • “a significant factor in necessitating hospitalization in a hospital, are being provided in a timely manner.68 Similar types of or receipt of services in a forensic or other mental health unit of a correctional facility” within the last thirty-six weeks before the petition reports would be very useful to judges. the petition was filed; or • the result of “one or more acts of serious violent behavior toward Conclusion self or others or threats of, or attempts at, serious physical harm to Whether discussed in a research paper such as the Duke self or others” within 48 months before the petition was filed. MHL § report or in tabloid editorials, the consensus is that AOT 9.60(c)(4)(i)–(ii). is a valuable program. The court hearing ensures that 23. MHL § 9.60(c). a patient’s due process rights are protected, while the 24. Mental health providers who are allowed to petition for AOT on behalf of the patient also include the director of a public or charitable organization, court’s order is designed to reduce violent incidents by agency, or home that provides services or a residence to the patient and the mandating outpatient treatment and other services. To director of community services or social work official of the city or county further the goal of balancing the public’s concern for where the patient lives. MHL § 9.60(e)(1)(iv), (vii). safety with the AOT recipient’s right to live a dignified 25. MHL § 9.60 (e)(1). life in the community, MHL § 9.60 should be amended to 26. MHL § 9.60(e)(3). permit more judicial discretion. Whether or not amended 27. Id. to increase judicial supervision, however, the statute is 28. Under the statute, an unsuccessful attempt to examine the patient occurs worth saving. “Let the Sun Shine In.”69 ■ when the doctor “has not been successful in eliciting the cooperation of the subject of the petition to submit to an examination.” MHL § 9.60(e)(3)(ii).

1. MHL § 9.31. 29. MHL § 9.60(e)(3). 2. MHL § 9.33. 30. MHL § 9.60(h)(1). 3. Rivers v. Katz, 67 N.Y.2d 485, 504 N.Y.S.2d 74 (1986). 31. MHL § 9.60(g). 4. MHL § 9.60(a)(1). 32. MHL § 9.60(h)(5). 5. In re William C., 64 A.D.3d 277, 284, 880 N.Y.S.2d 317 (2d Dep’t 2009). 33. MHL § 9.60(i)(1). 6. MHL § 9.60(i)(1). 34. MHL § 9.60(h)(2). 7. Eric Konigsberg & Ann Farmer, Father Tells of Slaying Suspect’s Long Ordeal 35. In re Gail R., 67 A.D.3d 808, 811, 891 N.Y.S.2d 411 (2d Dep’t 2009). with Mental Illness, N.Y. Times, Feb. 20, 2008, at B1. 36. MHL § 9.60(h)(3). 8. See Al Baker, Queens Man is Arrested in Killing of Therapist, N.Y. Times, Feb. 37. MHL § 9.60(h)(4). 17, 2008, at A1; John Eligon, Suspect’s Delusions Described to Judge, N.Y. Times, 38. Id. May 21, 2008, at B6. 39. MHL § 9.60(j)(1). 9. See Editorial, Mike, Elliot: You Must Act, Daily News, Feb. 21, 2008, at 28; E. Fuller Torrey, Deadly Madmen – Mental-Health System Still Lets Them Roam, N.Y. 40. In re Manhattan Psychiatric Ctr., 285 A.D.2d 189, 198, 728 N.Y.S.2d 37 (1st Post, Feb. 22, 2008, available at http://www.nypost.com/p/news/opinion/ Dep’t 2001). opedcolumnists/deadly_madmen_WgUp2zx9XTX6Wa4j0QzXFI. 41. MHL § 9.60(j)(2).

32 | June 2010 | NYSBA Journal 42. Id. 56. Id. at 3–4, 28, 34, 36. This too has been my personal observation. 43. MHL § 9.60(k). 57. In re Manhattan Psychiatric Ctr., 285 A.D.2d 189, 198, 728 N.Y.S.2d 37 (1st Dep’t 2001). 44. MHL § 9.60(n). 58. Id. at 195–96. 45. Id. 59. Id. at 196. 46. Duke Report, supra note 19, at 2. 60. Id. at 198. 47. Id. 61. 189 Misc. 2d 446, 732 N.Y.S.2d 549 (Sup. Ct., Oneida Co. 2001). 48. Id. 62. Id. at 448. 49. Id. 63. Id. at 452. 50. Id. at 13. 64. Id. 51. Id. For more information about assertive community treatment, see “ACT Program Guidelines 2007,” N.Y. State Office of Mental Health, http://www. 65. Id. at 454. omh.state.ny.us/omhweb/act/program_guidelines.html. 66. MHL § 9.60(h)(1). 52. Duke Report, supra note 19, at 2. 67. MHL § 9.48. 53. Id. at 35. 68. Id. 54. Id. at 4. 69. From Hair: The American Tribal Love-Rock Musical. Words by James Rado 55. Id. at 11–12. and Gerome Ragni; music by Galt MacDermot (Broadway Opening 1968).

NEW YORK STATE BAR ASSOCIATION

From the NYSBA Book Store Protecting the Catastrophically Injured Personal Injury Plaintiff’s Recovery The Benefits and Risks of Structured Settlements and Their Alternatives in a Changing Economy

This handy book, a must-have for personal injury attorneys, provides the most current insights into the field of structured settlements for catastrophically injured plaintiffs. This reference is authored by Michael Kessler, Esq., whose practice since 1990 has been exclusively devoted to representing plaintiffs who have suffered catastrophic injuries. The author, who has been writing about and lecturing on this topic since 2003, takes into consideration the recent changes in the market that have affected the daily subsistence and future incomes of catastrophically injured personal injury plaintiffs. Whereas previously the market could always be depended on to provide reliable returns that sustained plaintiffs’ recoveries, the events of 2008–2009 have forced personal injury attorneys to take a fresh AUTHOR look at how to help clients provide for their future needs. Michael W. Kessler, Esq. This book draws from Michael Kessler’s experience with large recoveries, his personal research into this topic and on the opinions of other qualified professionals. The result is a compact and helpful summary of the options available for securing the current and future needs of catastrophically injured personal injury plaintiffs. PRODUCT INFO AND PRICES Book Prices 2010 • 82 pages, softbound • Provides personal injury attorneys with the information necessary to help clients and PN: 42230 their families make the best decisions regarding large recoveries. NYSBA Members $20 • Presents an analysis of alternatives available to protect recoveries of personal injury Non-Members $30 plaintiffs. • Examines the issues personal injury attorneys should consider in order to provide for the (Receive a 40% discount when you future needs of catastrophically injured plaintiffs. order 10 or more)

Free shipping and handling within the continental U.S. The cost for shipping and handling outside the continental U.S. will be added to your order. Get the Information Edge Prices do not include applicable sales tax. 1.800.582.2452 www.nysba.org/pubs Mention Code: PUB0759

NYSBA Journal | June 2010 | 33 Navigating and Avoiding Sanctions for Failing to Preserve Electronic Information

By Kelly D. Kubacki & Regina J. Jytyla

n January 15, 2010, District Judge Shira Scheindlin KELLY D. KUBACKI serves as staff attorney for Kroll Ontrack. In this role, of the Southern District of New York issued an Ms. Kubacki tracks the evolving common and statutory law in the areas opinion that has grabbed the attention of lawyers of corporate information management, electronic discovery and com- O puter forensics. Through the design and implementation of educational, and clients that wrestle with the task of instituting and thought-leadership programming, in addition to writing and speaking, maintaining defensible legal hold policies. This case, she helps attorneys, litigation support and IT professionals understand Pension Committee of the University of Montreal Pension Plan the pressing legal and practical issues involved in corporate information 1 v. Banc of America Securities, LLC, holds that sanctions management and electronic discovery. may be imposed for spoliation of electronic data that is the result of negligent and grossly negligent conduct – not REGINA J. JYTYLA is a managing staff attorney in the Legal Technologies just bad faith. While this opinion sets parameters around division of Kroll Ontrack. Ms. Jytyla tracks and reports on the evolving culpability and conduct, many practitioners are still left law and technology in the areas of litigation readiness and management wondering how corporate litigants can successfully navi- of ESI, electronic discovery, and computer forensics. gate this challenging process. This article explores Judge

34 | June 2010 | NYSBA Journal Scheindlin’s four-part analysis with regard to when failure to obtain records from all employees, the failure to spoliation warrants sanctions, including each standard take all appropriate measures to preserve ESI (electroni- of negligence and the sliding scale of corresponding sanc- cally stored information), the failure to assess the accu- tions that may arise when a party fails to fulfill discovery racy and validity of selected search terms, or the failure obligations. Practical guidance will also be offered to to collect evidence. attorneys and corporate clients to help avoid the serious ramifications that may arise from a failure to preserve Behaviors constituting simple potentially relevant electronic information. negligence include the failure to Case Background obtain records from all employees. This securities action was filed in February 2004 by a group of investors who sought recovery of $550 million Gross negligence is a standard greater than simple in losses, resulting from the liquidation of two hedge negligence – it is a failure to exercise the same level of funds. Ninety-six plaintiffs were in the original action, care a careless person would employ. Accordingly, Judge but only the actions of 13 were the subject of this discov- Scheindlin defines the following failures as gross negli- ery opinion. gence: During discovery, in October 2007, the Citco Defendants • the failure to issue a written legal hold; (consisting of Citco NV, Citco Group Limited and former • the failure to identify the key players and ensure directors) alleged the plaintiffs’ production was severely that their electronic and paper records are pre- lacking. As a result, the plaintiffs were ordered to provide served; the court with declarations regarding their efforts to pre- • the failure to cease the deletion of e-mail or to preserve and produce documents. Based on the information serve the records of former employees that are in a received and by cross-referencing the productions and party’s possession, custody or control; and declarations of the plaintiffs, the defendants were able • the failure to preserve backup tapes when they are to identify at least 311 responsive documents that were the sole source of relevant information or when they not included in 12 of the 13 plaintiffs’ productions and relate to key players, if the relevant information discovered that nearly all the declarations were false and maintained by those players is not obtainable from misleading or executed by an individual without per- readily accessible sources. sonal, relevant knowledge of its contents. Armed with Willful, wanton or reckless misconduct includes an this information following the close of discovery, the intentional act, indifferent to the consequences, which defendants moved for spoliation sanctions and dismissal “make[s] it highly probable that harm would follow.”4 of the plaintiffs’ complaint. Judge Scheindlin cites the intentional destruction of Prior to discussion of the parties’ specific shortcom- relevant ESI or paper documents as examples of willful ings, Judge Scheindlin opens this opinion with a frame- misconduct, especially if the conduct occurred after the work for determining when spoliation sanctions are final relevant Zubulake opinion was issued in July 2004. appropriate. Four issues are essential to this analysis: the The grossly negligent actions described above may be plaintiffs’ level of culpability, the interplay between the deemed willful if the party’s actions are intentional. duty to preserve and evidence spoliation, which party Judge Scheindlin notes that these behaviors are not meant should bear the burden of proving evidence destruction to establish a definitive list, but are examples of discovery and consequences, and the appropriate remedy for the failures and culpability levels. harm caused. Duty to Preserve Culpability After discussing the various levels of culpability in the Turning to the party’s culpability, Judge Scheindlin context of discovery, Judge Scheindlin turns to the duty discusses the standards of negligence, gross negligence of preservation: and willful misconduct in the discovery context. The By now, it should be abundantly clear that the duty to judge describes negligence as behavior that falls below preserve means what it says and that a failure to pre- the standard of acceptable conduct. Acceptable conduct serve records – paper or electronic – and to search in in the discovery context is determined by “what a party the right places for those records, will inevitably result 5 must do to meet its obligation to participate meaningfully in the spoliation of evidence. and fairly in the discovery phase of a judicial proceed- Judge Scheindlin titled this case “Zubulake Revisited: Six ing.”2 A party who fails to meet this acceptable conduct Years Later” and used that series of seminal decisions standard has acted negligently regardless of whether the to provide further framework for a party’s obligations actions resulted “from a pure heart and an empty head.”3 that stem from duty to preserve, determining “[i]t is Behaviors constituting simple negligence include the well established that the duty to preserve evidence arises

NYSBA Journal | June 2010 | 35 when a party reasonably anticipates litigation.”6 In the Remedies instant case, the judge found the duty to preserve arose Turning to the final part of her four-point analysis, Judge by April 2003 after the plaintiffs filed suit. Scheindlin notes sanctions serve to (1) deter the parties from engaging in spoliation; Burden-Shifting (2) place the risk of an erroneous judgment on the Next Judge Scheindlin explores the burdens associated party who wrongfully created the risk; and (3) restore with the loss of documents, specifically analyzing who is “the prejudiced party to the same position [it] would responsible for demonstrating the favorability or preju- have been in absent the wrongful destruction of evi- 9 dice of the lost evidence. Judge Scheindlin relates the bur- dence by the opposing party.” den of proof question to the severity of the sanctions at The least harsh yet most adequate sanction available issue. For less severe sanctions, such as an award of costs should be imposed, ranging from cost-shifting and fines and fees, the court’s inquiry focuses on the spoliating par- to preclusion and default judgment. The terminating or ty’s conduct instead of the loss of evidence, and whether default judgment sanction should be imposed only in it was relevant or resulted in prejudice. Essentially, the the most egregious cases, which Judge Scheindlin deter- innocent party must prove three elements: the spoliating mined was not appropriate for the plaintiffs’ actions. party had control over the evidence and an obligation to After discussing the sanctions and analyzing the preserve when the evidence was destroyed; the spoliating varying levels of an adverse inference instruction in party acted with a culpable state of mind; and the missing particular, Judge Scheindlin concludes this discussion by evidence is relevant. noting the subjectivity of a decision to award sanctions. A judge relies on experience and his or her “gut reaction”10 The burden-shifting test seems to regarding the party’s compliance with discovery obligations, which requires a case-by-case basis approach. place a substantial burden on A party’s best defense against sanctions is to fully innocent parties. comply with discovery obligations. Ignorance is no longer bliss and there seems to be decreasing protection for When more severe sanctions are considered, such preservation mistakes, oversights or intentional destruc- as dismissal or an adverse inference, the inquiry of the tion activities. By remaining vigilant in preserving infor- court focuses on behavior, in addition to the relevance of mation and addressing e-discovery issues, parties place and prejudice caused by the unavailability of evidence. themselves in the best position to avoid the court’s wrath, Moreover, if a spoliating party is found to have acted in administered through sanctions. a grossly negligent manner or in bad faith, relevance and prejudice may be presumed. However, this presumption Legal Hold Implementation is not required and is always rebuttable. Following the four-part analysis to determine if and In her discussion of this issue, Judge Scheindlin sets when sanctions are appropriate, Judge Scheindlin dis- forth a burden-shifting test as follows: if a spoliating cusses the plaintiffs’ specific actions that led to the defen- party’s conduct is egregious enough to justify the impo- dants’ motion. This discussion centered on whether the sition of a presumption of relevance and prejudice or if plaintiffs issued a litigation (or legal) hold, an imperative the conduct warrants permitting the jury to make that step in preserving pertinent information and avoiding presumption, the burden shifts to the spoliating party costly sanctions. Following the final Zubulake opinion in to rebut the presumption. If the spoliating party demon- July 2004, the duty to issue written legal holds was clear strates no prejudice occurred, then no jury instructions and the plaintiffs should have instituted a written legal would be warranted, although the possibility for lesser hold no later than 2005, which is when the action was sanctions remains open. transferred to the Southern District of New York. Arguably, the burden-shifting test seems to place a Originally, the 13 plaintiffs discussed in Pension substantial burden on innocent parties since it requires an Committee failed to issue written legal holds when the innocent party to demonstrate the relevance of evidence duty to preserve initially arose in 2003. Seven of the plain- that it may never review due to the opposing party’s tiffs eventually issued written holds, while six plaintiffs failure to preserve. As Judge Scheindlin notes, this seems failed to issue a written hold at any time. The seven who unfair, but “the party seeking relief has some obligation issued written holds were found to have acted negli- to make a showing of relevance and prejudice, lest litiga- gently, while the six who failed to issue any were found tion become a ‘gotcha’ game rather than a full and fair grossly negligent and subject to a permissive adverse opportunity to air the merits of a dispute.”7 An automatic inference sanction. presumption of relevance and prejudice would motivate In addition to their failure to ever issue a written parties to find errors and capitalize on mistakes, which legal hold, these six plaintiffs conducted discovery in a the judge felt “would not be a good thing.”8 grossly negligent manner. Their searches were “severely

36 | June 2010 | NYSBA Journal deficient,” and they failed to engage in any preservation ment of the company’s ESI strategy – which includes or collection efforts prior to 2007 – four years after the legal holds – should not be overlooked, and efforts duty to preserve technically arose. Not only did these should continue to strengthen the legal-IT relationship. plaintiffs fail to collect or preserve documents, they also actively continued to destroy electronic documents and Pension Committee Distinguished backup data that may have contained responsive data. In February 2010, Judge Lee Rosenthal14 from the Southern As such, it was fair to presume that the missing docu- District of Texas authored an opinion that distinguishes ments were relevant and the defendants were prejudiced. and limits the Pension Committee ruling. The opinion, Regarding the backup tapes, Judge Scheindlin amended Rimkus Consulting Group, Inc. v. Cammarata,15 addresses the original opinion to clarify that preserving all backup sanctions for the intentional destruction of electronic evi- tapes is not required. Rather, the preservation obligation dence. In this case, the defendants (who were the plain- arises when the backup tape is the sole source of relevant tiffs in the original action) contended that the deletion of information.11 evidence, including e-mails and attachments, was part of For the seven plaintiffs who eventually did issue writ- their routine business practice. Disagreeing with those ten legal holds, Judge Scheindlin notes that the duty to arguments, Judge Rosenthal determined the defendants issue a hold was not well established in early 2004. Based intentionally lost, altered and deleted e-mails the plaintiff on this fact, the rule of lenity applied and the belated requested in the discovery process. As a result, it was issuance of the legal hold alone was insufficient to find appropriate to send the case back to a jury with a permis- that these plaintiffs engaged in grossly negligent conduct. sive adverse inference instruction, and to award attorney Like the other six plaintiffs, these seven had additional fees and costs incurred during the plaintiff’s investiga- discovery shortcomings that contributed to their con- tion into the spoliation. duct being deemed sanction-worthy. These shortcomings In exploring the preservation and spoliation issue, included deficient, unsupervised searches and relevant Judge Rosenthal discussed Pension Committee, paying documents that were not produced. particular attention to the U.S. Circuit Court differences Judge Scheindlin also found all 13 plaintiffs worthy of with regard to culpability of parties and the burden of monetary sanctions because they “conducted discovery proof associated with relevance and prejudice of spoli- in an ignorant and indifferent fashion,”12 and awarded ated evidence. In regard to culpability levels, caselaw the defendants reasonable attorney fees and costs associ- in the Second Circuit (as applied in Pension Committee) ated with the motion. Finally, Judge Scheindlin ordered allows the imposition of sanctions for negligent evi- two of the plaintiffs to search backup tapes for relevant dence destruction, whereas in the Fifth Circuit, negligent documents or demonstrate why this task could not be destruction – as opposed to intentional, bad faith destruc- performed, but she declined to order further discovery tion – is insufficient for the imposition of an adverse infer- with regard to the other 11 plaintiffs because the burden ence instruction.16 Judge Rosenthal concluded that these would far outweigh the benefit. different culpability holdings “limit the applicability of As demonstrated in Pension Committee, the failure the Pension Committee approach.”17 to issue a legal hold will result in sanctions. Yet, as In regard to burden of proof requirements, Judge reported in a recent study by Kroll Ontrack, only 57% of Rosenthal made another distinction between the Second U.S. corporations have an identified means to preserve and Fifth Circuits, noting the Fifth Circuit has not potentially relevant data when litigation or a regulatory addressed the presumptions of relevance and preju- investigation is anticipated.13 This statistic is alarming. dice even in the context of bad faith. However, caselaw Corporations are unable to comply with their duty to within the Fifth Circuit suggests that an adverse inference preserve potentially relevant information if they lack an instruction is not considered appropriate unless there is a appropriate means to suspend the expulsion of poten- showing of relevance. tially responsive data. By failing to implement measures These differences highlight the continued confusion necessary to issue a legal hold, a company’s ESI readiness about the duty to preserve ESI. Organizations must make policy cannot be effective and the company is at risk for diligent efforts to understand the applicable legal stan- costly motions and sanctions. dards and become better educated about the technology Furthering the precariousness of the legal hold process that can simplify and economize the discovery of ESI. is the divide between corporate legal and IT departments, Regardless of what legal standards apply, parties cannot which share an increasing amount of responsibility for ignore preservation obligations established by courts creating ESI strategy and enforcement. This relationship across the country. As Judge Rosenthal noted in Rimkus is moving in a more collaborative and cooperative direc- Consulting Group, the “spoliation of evidence – particu- tion, but it is far from perfect. Role confusion, vernacular larly of electronically stored information – has assumed barriers and budgetary ownership are all common sub- a level of importance in litigation that raises grave con- jects of contention. Thus, implementation and enforce- cerns” and “distract[s] from the merits of a case, add[s]

NYSBA Journal | June 2010 | 37 costs to discovery, and delay[s] resolution.”18 Courts are need to search for information throughout the organiza- recognizing the increasing impact presented by e-dis- tion’s electronic information. Possessing this tool will covery related issues and are growing more intolerant of help strengthen defensibility arguments if the opposing party missteps in this arena. party moves for spoliation sanctions in the event some data does not get preserved. Best Practices Once the application inventory and data map is in Commentators widely believe the Pension Committee and place, it must be routinely updated as an organization’s Rimkus Consulting Group decisions raise the bar of accept- technology environment is constantly changing. The able conduct for corporate litigants. Merely understand- periodic updates should intertwine with technology ing the details discussed in these cases is not enough to asset management processes, storage planning, informa- meet this heightened bar. Instead, best practices, like the tion security assessments and other peripheral processes. ones outlined below, must be instituted to successfully When applications or systems are retired, information navigate all stages of data management and litigation should be included as to where the final set of data is response. kept and what process will be required to restore if necessary. Maintaining this information and checking with the pertinent parties prior to requiring a restoration, will save The exact moment the duty time, cost and effort down the road. to preserve arises remains a tricky Know When the Duty to Preserve Arises issue and is often considered The exact moment the duty to preserve arises remains a the most challenging step of the tricky issue and is often considered to be the most challenging step of the e-discovery process. The Federal Rules e-discovery process. of Civil Procedure provide little guidance as to a party’s preservation obligation and when the duty to preserve Implement an Archiving System arises. Thus, litigants must rely on caselaw to determine As legal requirements become more stringent, it is increas- the proper course of action. ingly important that organizations arm themselves with In a separate case from the Southern District of New the proper tools to defend against the risks presented York, United States Magistrate Judge James C. Franics by the mountains of data created and maintained in the IV found the duty to preserve arose no later than the course of business. One solution is implementing an lawsuit’s filing.19 In the District of Maryland, the court effective archiving system. Archiving enables efficient found the duty to preserve arose when a plaintiff sent records management that not only facilitates business a letter informing the defendant that he had consulted and storage efficiency, but can also ensure compliance attorneys regarding the matter.20 The Western District of with legal and regulatory requirements. E-mail and filing Kentucky has held the notice of litigation was established archiving will allow legal, IT and compliance teams to after a phone call from the plaintiff and the filing of a appropriately preserve, manage, locate and produce rel- complaint.21 evant ESI, in addition to allowing for quick enforcement As demonstrated by the sampling of cases above of the company’s document retention policy. (which by no means present an exhaustive list of possi- An archiving solution streamlines the ability to admin- bilities), it is no wonder parties are confused as to when ister legal holds. It facilitates efficient identification of the duty to preserve arises. It is better for parties to be potentially relevant ESI through enterprise-wide search- safe than sorry by implementing a written legal hold ing and enables legal holds to be immediately put into sooner rather than later if litigation appears to be on the place, preventing liability for preservation issues. Data horizon. To increase defensibility, parties should main- that is not relevant to the investigation, regulatory matter tain detailed notes of the preservation protocol followed, or litigation can be released easily, decreasing data stores which include when the hold was issued, what details that may eventually progress to the next phases of the were included in the hold, to whom the hold was issued e-discovery process. and the efforts taken to continually monitor compliance.

Create an Application Inventory and Data Map Issue Written Legal Holds Another way to proactively approach data management As highlighted by Pension Committee, issuing legal holds is to create an application inventory and data map. An is an essential step of the process. Upon reasonable antici- application and inventory map provides organization to pation of litigation, counsel must issue written legal holds IT environments and allows for a quick identification of and communicate them appropriately to employees of pertinent data and custodians that are key to the fulfill- the organization. This ensures all department heads, IT ment of preservation obligations. It also prevents the personnel and pertinent employees are made aware of

38 | June 2010 | NYSBA Journal the hold. The written hold should include the purpose for ence sanction for the evidence destruction and awarded the hold, a description of the lawsuit or investigation, and attorney fees and costs to the plaintiffs, holding the defen- the guidelines for determining what data should be pre- dants and in-house counsel jointly and severally liable. served and by whom. Counsel should then work jointly with IT to notify legal opponents and any relevant third Conclusion parties of their duty to preserve potentially responsive Judge Scheindlin reiterates in Pension Committee that information. Internal automatic destruction must also perfection is not required, but parties must take the be suspended, which includes halting defragmentation necessary steps to properly preserve relevant records for software and other forms of automatic or routine drive collection, review and production. Although the specific “cleanup” activities. definitions of unacceptable conduct and relational lev- The failure to properly issue a legal hold and prevent els of culpability provided in Pension Committee are not the disposal of information spells disaster for parties meant to establish a definitive list of behavior in the dis- and their counsel. In addition to Pension Committee, fed- covery process that will result in sanctions, the message eral caselaw from across the country is peppered with is abundantly clear. Courts will impose sanctions for a incidents involving spoliation and sanctions requests. failure to properly fulfill discovery obligations. Counsel Indeed, according to Kroll Ontrack’s 2009 Year in Review can help avoid spoliation by properly planning for elec- report, 66.7% of federal cases in 2009 that addressed tronic discovery prior to litigation. Investing resources in sanctions involved preservation and spoliation issues. To proper preservation and legal hold management from the provide an example, consider an Eastern District of New outset will return dividends by ensuring that discovery York case from March 2009 that addressed legal holds. In practices withstand judicial scrutiny in the unfortunate Acorn v. County of Nassau,22 the defendants claimed they event opposing counsel files a motion seeking spoliation issued a “verbal” legal hold and instructed key individu- sanctions. ■ als to search for responsive documents, despite lacking the technical resources to locate and access electronic 1. 2010 WL 184312 (S.D.N.Y. Jan. 15, 2010). documents. Finding the defendants possessed a duty to 2. Id. at *3. preserve and were grossly negligent in failing to issue a 3. Id. at *3. proper legal hold, the court awarded the motion costs 4. Id. at *3. and attorney fees to the plaintiffs. 5. Id. at *1. 6. Id. at *4 (citing Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 433, 436 (2d Cir. Monitor Legal Hold Compliance 2001)). Once a legal hold notice is issued, counsel should actively 7. Pension Committee 2010 WL 184312 at *5. monitor internal suspension measures and ensure com- 8. Id. at *5. pliance. This includes sending update notices to keep key 9. Id. at *6 (citing West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999)) (quoting Kronisch v. U.S., 150 F.3d 112, 126 (2d Cir. 1998)). players and new employees informed, reminding them of their preservation obligations. Detailed and accurate 10. Id. at *7. records should also be kept of what data have been pre- 11. Id. at *12 n.99. served and how, should the opposing party bring preser- 12. Id. at *23. vation methods into question. Counsel should ensure the 13. Kroll Ontrack, Third Annual ESI Trends Report (2009). legal hold is in effect until final judgment, a settlement 14. Judge Rosenthal currently serves as chair of the Federal Judicial Conference Advisory Committee for the Federal Rules of Civil Procedure, and led the com- has been reached and a formal release has been signed by mittee when the Federal Rules of Civil Procedure were amended in 2006 to all parties, or the case is dismissed and no related claims address electronically stored information. remain outstanding. To lift the legal hold, counsel should 15. 2010 WL 645253 (S.D. Tex. Feb. 19, 2010). circulate an explicit notice that serves to officially resume 16. Judge Rosenthal also notes that bad faith is required for an adverse infer- scheduled disposal. Care must be taken to ensure the ence instruction in the Eleventh Circuit, and that the Seventh, Eighth, Tenth hold is not lifted prematurely on particular data that may and D.C. Circuits appear to require bad faith. Id. at n.11. be concurrently under hold for another matter. 17. Id. at *7. A recent case from the Middle District of Florida 18. Id. at *1. highlights this ongoing obligation of counsel. In Swofford 19. Green v. McClendon, 262 F.R.D. 284, 2009 WL 2496275 (S.D.N.Y. Aug. 13, 2009). v. Eslinger,23 the court cited Zubulake IV and found that it is insufficient for in-house counsel to simply notify 20. Goodman v. Praxair Servs., Inc., 632 F. Supp. 2d 494 (D. Md. 2009). employees of preservation notices. Rather, counsel “must 21. KCH Servs., Inc. v. Vanaire, Inc., 2009 WL 2216601 (W.D. Ky. July 22, 2009). take affirmative steps to monitor compliance”24 to ensure 22. 2009 WL 605859 (E.D.N.Y. Mar. 9, 2009). preservation. Swofford is a novel case as it marks one of 23. 671 F. Supp. 2d 1274 (M.D. Fla. 2009). the first instances where in-house counsel was sanctioned 24. Id. at 1281 (citing Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 432 (S.D.N.Y. July 20, 2004)). for discovery failures. The court issued an adverse infer-

NYSBA Journal | June 2010 | 39 ROBERT H. TEMBECKJIAN is Administrator and Counsel to the New York State Commission on Judicial Conduct and a member of the New York State Bar Association Special Committee to Review the Code of Judicial Conduct.

The views expressed in the article are those of Mr. Tembeckjian and do not reflect the views of the New York State Bar Association.

Point of View: Judicial Reform and the Test of Time

By Robert H. Tembeckjian

n 1975, New York became the 38th state to create a and less mysterious, to give it more flexibility in impos- disciplinary commission for the purpose of handling ing sanctions commensurate with the misconduct, and Icomplaints of misconduct against judges.1 Today, all to make its decisions more accountable to the state’s 50 states and the District of Columbia operate such sys- highest court. While such changes would require action tems, culminating a national movement to take the disci- by the Legislature, the Commission has been receptive pline of judges out of the exclusive control of the courts, to constructive suggestions that could be implemented which had not been especially active in the field.2 While on its own, in the form of amendments to its operating there are variations from state to state, the basic model procedures and policies. is the same: an office of ethics enforcement professionals investigates and litigates complaints under the supervi- The Commission’s Mandate, Checks and Balances sion of a board or commission which, where appropriate, The Commission is an independent agency established either imposes or recommends sanctions against those by the New York State Constitution to review complaints judges found to have engaged in misconduct, subject to of misconduct against judges and justices of the Unified review by the state’s highest court. Court System and, where appropriate, render public I believe the record of the past 35 years demonstrates determinations of admonition, censure or removal from the strength and fairness of this disciplinary system in office, or retirement for disability.3 There are approxi- New York State. While the New York State Commission mately 3,500 judges and justices in the system, and the on Judicial Conduct (“Commission” or COJC) under- Commission receives and processes over 1,800 com- stands that the “watchdog” nature of its work is unlikely plaints per year.4 to earn it the affection of all judges, or the acclaim of While judges must be free to act independently, on grievants whose complaints have been examined and the merits and in good faith, they also must be account- dismissed, a judicial watchdog regarded as too active by able should they commit misconduct. The Commission’s the former and too passive by the latter probably has it objective is to enforce high standards of conduct as articu- just right. lated in the Rules Governing Judicial Conduct (“Rules”). That is not to say that there is no room for improve- By absorbing, addressing and often defusing the intense ment. The Commission itself has been advocating impor- criticism leveled at the judiciary by disappointed litigants tant structural changes to make the process more open and other complainants, and disciplining those relatively

40 | June 2010 | NYSBA Journal POINT OF VIEW few judges whose behavior demands it, the Commission Gilpatric.17 The Court declared that, based on 19 years of protects the independence of the judicial branch to pre- experience, the Greenfield doctrine was “not workable,” side over cases and render decisions free from untoward and it affirmed the Commission’s jurisdiction to act influences. In so doing, it serves the public interest in a where decisional delays were lengthy and without valid dynamic three-branch system of government in which excuse. the judiciary operates both independently and ethically. While its affirmance rate is noteworthy, the Commission The Commission was created in 1975 because judicial recognizes a significant constraint in the present system. discipline, which to that point was the sole province of In most states, the highest court has authority to review the courts, was dormant.5 The now-defunct Court on all judicial disciplinary decisions. In New York, however, the Judiciary, for example, had been convened only five the Court of Appeals may review only those cases that times in the preceding 25 years.6 In contrast, in its 35 the disciplined judge chooses to appeal. The Commission years of operation, the Commission has received and has called for expanding the Court’s authority, as dis- processed over 41,000 complaints, conducted over 7,500 cussed in the Recommendations section below. investigations, publicly disciplined over 700 judges and confidentially cautioned over 1,400 others.7 These num- Standing the Tests of Time and Litigation bers demonstrate not only that the Commission fulfills its While there have been calls from judges and others over mandate vigorously but also that it protects the judiciary the years to amend New York’s judicial disciplinary from frivolous grievances. The vast majority of com- system, the Commission believes that the test for change plaints are dismissed at the outset as without merit, and should not be what would please or solely benefit the judi- investigations are much more likely to exonerate than ciary or complainants but what would be consistent with inculpate the judge. the public interest in a fair but rigorous system of ethics The constitutional provisions that created the enforcement. Indeed, the Commission’s procedures have Commission recognize the important role the judiciary stood both the tests of time and litigation, having been must continue to play in the discipline of its own. First subjected to and withstood more than 100 procedural and foremost, the ethics Rules are promulgated by the challenges over the years, mostly in the form of CPLR Chief Administrative Judge on approval of the Court Article 78 proceedings initiated by judges or complain- of Appeals.8 Four of the 11 Commission members must ants, or in disciplinary reviews heard by the Court of be judges.9 The Chief Judge makes appointments to the Appeals.18 For example, in Nicholson v. Commission19 and Commission, as do the Governor and the leaders of the In re Doe,20 the Court affirmed the Commission’s author- Legislature.10 Yet to ensure the Commission’s own inde- ity to pursue matters bearing a “reasonable relation to the pendence and prevent domination by any one branch, its subject matter under investigation.” own members elect a Chair and hire an Administrator to In In re Seiffert,21 the Commission’s standard of run the day-to-day operations, and its budget is negoti- proof – preponderance of the evidence – was unequivo- ated and submitted to the Legislature by the Governor, cally affirmed. not controlled by the judiciary.11 In In re Petrie,22 the Commission’s procedure for sum- The Commission itself, not its staff, must authorize all mary determination was upheld. investigations, and strict quorum requirements make it The fundamental structure of the Commission impossible for any disciplinary action to be taken without itself – reposing in one body both investigative and adju- the participation of at least eight and the concurrence of dicative functions – is a standard administrative agency six out of the 11 members.12 model that has been emulated in 42 states and has been Formal disciplinary hearings are presided over by upheld in constitutional challenges throughout the coun- referees, many of whom are retired judges, designated by try.23 Indeed, the Commission’s Operating Procedures the Commission, not its staff.13 and Rules are modeled after the State Administrative Finally, the Court of Appeals has authority to review Procedures Act. However, to ensure that its procedures any Commission disciplinary determination at the request are fair and convey the appearance of fairness, the of the disciplined judge.14 The Court has heard 91 such Commission bifurcated its staff so as to separate those reviews since 1978, accepting 75 Commission determina- who investigate and litigate cases from the Clerk of the tions, modifying 14, rejecting one and remitting one for Commission, who neither investigates nor litigates but further proceedings.15 While on 12 occasions it reduced assists the Commission in its adjudicatory role in the and on two occasions it increased the discipline imposed, manner of an appellate law clerk.24 the only case in which the Court rejected a Commission Having withstood these and other tests, the sanction – In re Greenfield,16 which severely constrained Commission’s procedures should not be amended merely the Commission’s authority to act in matters involv- to assuage some critics’ unhappiness with some of the ing unreasonable delay in rendering decisions – was agency’s disciplinary decisions. Just like judges, the effectively reversed by the Court’s recent ruling in In re Commission must call them as it sees them, without

NYSBA Journal | June 2010 | 41 POINT OF VIEW outside influence. Where a proposed change is fair and and for years on its Web site, refutes the suggestion of reasonable, however, the Commission will likely embrace some critics that the Commission is either concentrating it. For example, upon considering the concurring and dis- disproportionately on part-time magistrates or somehow senting opinions in In re Shaw,25 the Commission clarified besmirching full-time judges by lumping them in with the standard necessary to prevail on a motion to recon- part-timers. All judges – part-time or full-time, law- sider a disciplinary determination.26 More recently, upon trained or lay-jurist, upstate or downstate, state-paid or considering a report of the New York County Lawyers’ locality-paid – wield enormous power and are subject to Association, the Commission undertook to implement the same ethical Rules, which the Commission endeavors certain clarifications to its Policy Manual.27 to apply equally, without fear or favor.

Discipline is based solely on whether there were violations of the Rules, without regard to whether the judge was part time or full time, elected or appointed.

Avoiding Judicial Politics Recommendations Judges, of course, are required to avoid political activ- While it may be rare for a government agency to encour- ity, except under the limited circumstances of their own age greater review of its decisions by a higher authority campaigns for elective judicial office.28 To avoid even and greater public access to its work, the Commission has the appearance that its decisions might be influenced made such recommendations over the years to promote by partisan judicial politics, the Commission adopted a the public policy of checks and balances. rule prohibiting its members from directly or indirectly participating in judicial elections, except their own cam- Court of Appeals Review of paigns for judicial office, and even from participating in All Commission Disciplines bar association ratings of candidates for appointive judi- There is no greater advocate for judicial independence cial office.29 While there is occasionally some debate over and accountability than the Court of Appeals. The Court’s the impact of a Commission discipline on the re-election authority over the Commission is a great safeguard to or re-appointment of a censured or admonished judge,30 both. Yet review is limited to those cases in which the the Commission’s role is limited to disclosing certain disciplined judge appeals.35 The Commission has rec- information to a judicial rating or appointing authority ommended legislation to enable the Court to review that presents a signed waiver of confidentiality from the any Commission disciplinary decision.36 Chief Judge judicial candidate.31 Jonathan Lippman has endorsed the proposal,37 which The Commission has also avoided taking any posi- would bring New York in line with the vast majority of tion on two recurring issues: whether judges should be states in which the highest court, appropriately, is the elected or appointed, and whether the system of part- ultimate authority on all matters of judicial discipline. time town and village court justices should be replaced or amended – e.g., to require that all such magistrates be Making Formal Disciplinary Proceedings Public lawyers.32 The Commission has sought to avoid any sug- All Commission investigations and formal disciplinary gestion that its decisions in individual cases were affected proceedings are confidential by law.38 For 35 years, the by a political view of the method by which an individual Commission has advocated that post-investigation for- ascended the bench or the efficacy of the part-time mag- mal proceedings should be made public, as they were in istrate system. Discipline is based solely on whether there New York until 1978, and as they are in 35 other states.39 were violations of the Rules, without regard to whether Opening the process in this way would educate both the judge was part time or full time, elected or appointed. the judiciary and the public and demystify an important Indeed, the Court of Appeals has unequivocally held that aspect of the Commission’s work. It is ironic that many the Rules Governing Judicial Conduct set forth a state- who claim the Commission’s secrecy leads to unaccount- wide standard that must be applied with equal force to ability do not join the Commission in seeking to open the all judges.33 It is significant to note, however, that after 35 process. In this regard it is important to note that the State years and over 700 decisions, approximately 69% of the Senate Judiciary Committee held two public hearings in judges disciplined by the Commission have been town 2009 on the Commission’s operations and procedures, and village magistrates, who happen to comprise approx- and thereafter State Senator John L. Sampson introduced imately 67% of the state’s judiciary.34 This statistical track a bill (S.6264) that would make the Commission’s formal record, openly reported for decades in its annual reports disciplinary proceedings public.

42 | June 2010 | NYSBA Journal POINT OF VIEW

Authorizing Suspension from Office 19. 50 N.Y.2d 597, 431 N.Y.S.2d 340 (1980). On occasion the Commission has concluded that a par- 20. 61 N.Y.2d 56, 61, 471 N.Y.S.2d 557 (1984) (citing Carlisle v. Bennett, 268 N.Y. ticular judge engaged in conduct warranting discipline 212, 217 (1935)). more serious than censure but less severe than removal.40 21. 65 N.Y.2d 278, 491 N.Y.S.2d 145 (1985). Yet in New York, unlike most states, there is no authority 22. 54 N.Y.2d 807, 443 N.Y.S.2d 648 (1981). for the Commission to suspend a judge. Even the author- 23. In re Hanson, 532 P.2d 303 (Ala. 1975); In re Flournoy, 195 Ariz. 441, 990 P.2d ity of the Court of Appeals to suspend a judge is limited 642 (Ariz. 1999); Adams v. Comm’n on Judicial Performance, 10 Cal. 4th 866, 42 Cal. Rptr. 2d 606 (Cal. 1995); In re Zoarski, 227 Conn. 784, 632 A.2d 1114 (Conn. 1993); to interim situations, such as when a judge is charged In re Kelly, 238 So. 2d 565 (Fla. 1970); In re Vaughn, 265 Ga. 843, 462 S.E.2d 728 with a felony.41 For years, the Commission has advocated (Ga. 1995); In re Holien, 612 N.W.2d 789 (Iowa 2000); In re Rome, 218 Kan. 198, expanding the range of available sanctions to include 542 P.2d 676 (Kan. 1975); In re Bowers, 721 So. 2d 875, (La. 1998); In re Diener, 268 Md. 659, 304 A.2d 587 (Md. 1973); In re Chrzanowski, 465 Mich. 468, 636 42 suspension without pay. N.W.2d 758 (Mich. 2001); Comm’n on Judicial Performance v. Russell, 691 So. 2d 929 (Miss. 1997); In re Elliston, 789 S.W.2d 469 (Mo. 1990); Mosley v. Comm’n on Conclusion Judicial Discipline, 117 Nev. 371, 22 P.3d 655 (Nev. 2001); Friedman v. State of N.Y., 24 N.Y.2d 528, 301 N.Y.S.2d 484 (1969); In re Nowell, 293 N.C. 235, 237 S.E.2d 246 Public confidence in the independence, integrity, impar- (N.C. 1977); In re Schenck, 318 Or. 402, 870 P.2d 185 (Or. 1993); In re Pirraglia, 916 tiality and high standards of the judiciary, and in an A.2d 746 (R.I. 2007); In re Brown, 512 S.W.2d 317 (Tex. 1974); In re O’Dea, 159 independent disciplinary system that helps keep judges Vt. 590, 622 A.2d 507 (Vt. 1993); In re Deming, 108 Wash. 2d 82, 736 P.2d 639, as amended by 744 P.2d 340 (Wash. 1987). accountable for their conduct, is essential to the rule 24. 22 N.Y.C.R.R. § 7000.13. of law. The members and staff of the Commission are 25. 96 N.Y.2d 7, 724 N.Y.S.2d 672 (2001). confident that their work contributes to those ideals, to a heightened awareness of the appropriate standards of 26. 22 N.Y.C.R.R. § 7000.6(f)(6). ethics incumbent upon all judges, and to the fair and 27. Judicial Conduct Commission Rejects NYCLA’s Report as “One-Sided,” N.Y.L.J., Feb 26, 2010, p. 1. proper administration of justice. 28. 22 N.Y.C.R.R. §§ 100.0(Q), 100.5. A system that has handled so many cases, produced 29. 22 N.Y.C.R.R. § 7000.14. fair results and withstood 35 years of legal and proce- 30. New York City Mayor Michael Bloomberg and New York Governor David dural challenges, and that has internal as well as external Paterson did not reappoint judges whom the Commission had censured. No checks and balances, should not be disturbed without Reappointment for Judge Who Accosted Lawyer, N.Y.L.J., Nov 29, 2007, p. 1, col. 1; significant cause. While the Commission itself advocates Decision Not to Reappoint Sends “Chilling” Message, Judge Claims, N.Y.L.J., May 1, 2009, p. 1 col. 3. A town justice recently ascribed his re-election defeat in some change, it would also borrow from the vernacular: part to a Commission censure. Republicans Win Both Saranac Lake Justice Seats, If it ain’t broke, don’t fix it. ■ Adirondack Daily Enter., Mar 17, 2010. On the other hand, two judges were recently re-elected despite having been censured or admonished. Top Court 1. The Legislature authorized a Temporary Commission on Judicial Conduct Rules Commission Can Admonish Kingston Judge, Poughkeepsie J., Dec. 15, 2009; in 1974, which began operations in January 1975. An amendment to the State Commission Admonishes State Supreme Court Justice McGrath, Albany Times Constitution, and subsequent enabling legislation, made the New York State Union, Feb. 17, 2010. Commission on Judicial Conduct (COJC) permanent as of April 1, 1978, and 31. Jud. Law § 45; Robert H. Tembeckjian, A Role for Disciplinary Agencies in the effectuated the structure under which it continues to operate today. N.Y. Const. Judicial Selection Process, 34 Fordham Urban L.J. 501 (2007). art. 6, § 22; N.Y. Judiciary Law art. 2-A (“Jud. Law”). 32. The state constitution does not require a town or village justice to have a 2. Gerald Stern, Is Judicial Discipline in New York State a Threat to Judicial law degree. N.Y. Const. art. 6 § 20. Independence?, 7 Pace L. Rev. 291 (1987); David Cleveland & Jason Masimore, The Ermine and Woolsack: Disciplinary Proceedings Involving Judges, Attorney- 33. In re Fabrizio, 65 N.Y.2d 275, 277, 491 N.Y.S.2d 144 (1985); In re Vonderheide, Magistrates and Other Judicial Figures, Geo J. Legal Ethics 1037 (2001). 72 N.Y.2d 658, 660, 536 N.Y.S.2d 24 (1988). 3. N.Y. Const. art. 6, § 22; Jud. Law art. 2-A. 34. Statistical analysis of Commission cases, www.scjc.state.ny.us/ Determinations/all_decisions.htm. 4. COJC, 2010 Annual Report, available at www.scjc.state.ny.us. 35. Jud. Law § 44(7). 5. Stern, supra note 2. 36. COJC, 2010 Annual Report, p. 20. 6. Id. 37. Agency Seeks Wider Court of Appeals’ Review of Judge Discipline Cases, 7. COJC, 2010 Annual Report, pp. 41–42, 249. N.Y.L.J., Apr. 21, 2010. 8. N.Y. Const. art. 6, § 20; 22 N.Y.C.R.R. §§ 100 et seq. 38. Jud. Law §§ 44(4), 45. 9. N.Y. Const. art. 6, § 22(a); Jud. Law § 41(1). 39. COJC, 2010 Annual Report p. 17, available at www.scjc.state.ny.us. 10. Id. 40. In re Doyle, 2007 WL 2505975, www.scjc.state.ny.us/Determinations/D/ 11. Jud. Law § 41(2), (7). doyle.htm; In re Carter, 2006 WL 4742824, www.scjc.state.ny.us/ Determinations/C/carter.htm; In re Raab, 2003 WL 599401, www.scjc.state. 12. Jud. Law § 41(6). ny.us/Determinations/R/raab.htm; In re Barr, 1980 WL 129351, www.scjc. 13. Policy 3.2, COJC, Policy Manual, available at www.scjc.state.ny.us. state.ny.us/Determinations/B/barr.htm; In re Hopeck, 1980 WL 129350, www. 14. Jud. Law § 44(7). scjc.state.ny.us/Determinations/H/hopeck.htm; In re Sena, 1980 WL 129346, www.scjc.state.ny.us/Determinations/S/sena.htm. 15. A list of the 91 cases, with citations and results, is available on the Commission’s Web site: www.scjc.state.ny.us. 41. N.Y. Const. art. 6 § 22 (e)–(g). 16. 76 N.Y.2d 293, 558 N.Y.S.2d 881 (1990). 42. COJC, 2010 Annual Report, p. 17, available at www.scjc.state.ny.us. 17. 13 N.Y.3d 586, 896 N.Y.S.2d 280 (2009). 18. COJC, 1995 Annual Report, pp. 66–69.

NYSBA Journal | June 2010 | 43 Corporate Governance: An Expert Can Make a Difference in Litigation By Sheryl L. Hopkins, H. Stephen Grace, Jr., and John E. Haupert

he current economic crisis has once again focused against directors asserting that directors have failed to the spotlight on corporate governance issues. Past properly exercise their oversight or decision-making func- Tboard and management actions are being scruti- tions or have acted in bad faith or in their own self inter- nized in the numerous securities fraud, breach of fidu- est obviously require an understanding of how boards ciary duty, and ERISA actions that have been filed in and management function and the standard business the aftermath of the stock market decline in 2008 and practices and processes of corporate governance that may 2009. Whether considering the propriety of board and be applicable. Similarly, securities violations claims may management actions in consummating recent mergers require an understanding of the roles and responsibilities and acquisitions, such as Bank of America’s acquisition of directors and individual corporate officers to deter- of Merrill Lynch, or considering the actions of the board mine whether fraudulent intent is present or whether a in carrying out its responsibilities in the Countrywide due diligence defense is available. And even common law securities fraud litigation, corporate governance issues fraud claims involving complex business decisions may are at the center of this litigation. This article will address how the testimony of corporate governance and management practices experts can be utilized in this and other SHERYL L. HOPKINS, J.D., MBA ([email protected]) is a member litigation, and who is qualified to testify as a corporate of the Board of Advisors of Grace & Co. Consultancy, Inc. and a former governance expert. practicing attorney with Akin Gump and Vinson Elkins. H. STEPHEN GRACE, JR., PH.D. ([email protected]) is president of Corporate Governance Practices Are at Issue in a Grace & Co. and former chair of Financial Executives International. Variety of Causes of Action JOHN E. HAUPERT ([email protected]) is a member of the Board Roles, responsibilities, practices, and processes of both the of Advisors of Grace & Co. and former treasurer of the Port Authority of board and management are at issue in a variety of causes New York and New Jersey [www.hsgraceco.com]. of action. For example, breach of fiduciary duty actions

44 | June 2010 | NYSBA Journal implicate corporate governance issues in explaining how mony is useful to explain both the context in which the and why decisions were made and what structures were directors or officers acted and customary business prac- in place to ensure good decision making to address issues tices, standards of conduct and processes considering the of fraudulent intent and misrepresentation. specific circumstances. The following breach of fiduciary duty action against the independent directors of a bank- Corporate Governance Testimony Is Specialized rupt corporation illustrates how corporate governance Knowledge Which Can Be Helpful to Courts and and management practice testimony can be used in these Juries Under Fed. R. Evid. 702 types of cases. In the context of these actions, courts and juries are In this case, the liquidating trustee of a creditor trust increasingly asked to assess and evaluate complicated established in connection with a Chapter 11 plan of reor- business decision-making and oversight decisions. Good ganization sued the independent directors of a twice– business decisions sometimes have bad outcomes. To bankrupt energy company asserting: (1) the independent avoid having these types of cases tried by hindsight, it directors elected after the corporation first emerged from is important that the trier of fact understand the context Chapter 11 had breached their fiduciary duties by pursu- in which business decisions are made as well as good ing business strategies that were excessively risky and not corporate governance and management practices and in the corporation’s best interests; and (2) the directors processes for making decisions. Business mores and gov- knew these risky strategies represented a material conflict ernance practices evolve over time. What steps should be of interest between the CEO and the corporation, since taken, procedures followed, and information considered these strategies offered the CEO the only opportunity to in making these and similar decisions? What are the roles regain control of the corporation. Specifically, the plain- and responsibilities of the individual officer and director tiff alleged that the independent directors had abdicated in this process? These are complicated questions whose their corporate governance responsibilities, approved the answers are important to the fact finder. expenditure of large sums of money in high-risk oil and But executive compensation issues, provisions in gas exploration ventures, and engaged in self-dealing. mergers and acquisition agreements, financial decision- making issues, director oversight responsibilities, and disclosures in financial statements or SEC filings, to name Courts have recognized that complex a few, are not exactly everyday stuff within the common corporate management process and experience of most courts and jurors. Testimony explaining both the context in which the board or management practice issues are beyond common acted and customary business practices, standards of experience and may require expert conduct and procedures for boards or management can, clariﬁ cation. therefore, be helpful to the court or the jury in deciding the case. Federal Rule of Evidence 702 recognizes that expert The corporate governance expert reviewed the allega- testimony is admissible where “specialized knowledge tions and addressed each allegation to determine if cus- will assist the trier of fact to understand the evidence or tomary business practices and processes were followed. to determine a fact in issue.” Courts have for some time The expert found that the independent directors had recognized that complex corporate management process acted appropriately for the following reasons: and practice issues are beyond common experience and • The oil and gas industry is inherently a risky busi- may require expert clarification.1 ness and risk sharing is a business judgment. The following three real-life examples, based on the • The directors were independent and were not exces- experiences of the firm with which the authors are asso- sively compensated; there was no self-dealing. ciated, demonstrate how attorneys can use corporate • The independent directors were well informed and governance and management practices experts in breach appropriately interacted with and relied on man- of fiduciary duty, securities violations, fraud, bad faith agement and exercised experienced and reasonable claims and other cases. judgment in addressing their responsibilities in an effort to make the reorganized entity a success. Breach of Fiduciary Duty Claim Against • Certain senior creditors in the first bankruptcy Independent Directors proceeding, operating as a bondholder commit- In breach of fiduciary duty actions against directors and tee, negotiated the CEO’s employment agreement officers, the court or the jury must determine whether and incentives and were directly involved in the directors and officers acted in an informed manner with selection of the independent directors. The com- the best interests of the corporation in mind and in good pany’s strategy was developed and put in place by faith. To help make these determinations, expert testi- the bondholder committee as part of the Plan of

NYSBA Journal | June 2010 | 45 Reorganization, which was approved by the court. • The embezzlement resulted from both a lack of and The strategy was based on the bondholder com- failure of internal controls at the plaintiff’s company mittee members’ experience with the CEO and on and from a highly unusual and inappropriate del- their belief that he was a talented natural resources egation of responsibilities by the company’s owner. finder. • Significant problems with the timely and accurate • The CEO would never have regained control of production of financial statements by the plaintiff the corporation under the employment agreement also contributed to the lax environment, which negotiated by the bondholder committee, even if allowed the two employees to undertake and con- the plan had been successful. These senior creditors, tinue the embezzlement scheme for several years. regardless of the success of the reorganized firm, • The plaintiff company’s damage claims were not would have retained control. In fact, the employ- supported by the evidence. ment contract anticipated the bondholder committee After an extensive trial, the jury found that the plain- members would replace the CEO if the plan was tiff had direct damages of only $120,000. The jury further successful. found that the plaintiff itself was responsible for 95% of • The damages claimed by the plaintiff in the form of this $120,000 in damages and that the defendant bank was loss of value were speculative and not based on any responsible for only 5% of the damages or $6,000. The jury evidence; the actions of the independent director also found there were no consequential damages. did not cause any damages. This analysis helped explain the context in which the Securities Violations Claims independent directors had acted, to show that they had Claims for violations of the 1933 Securities Act and the acted in an informed manner with the best interests of 1934 Securities Exchange Act against companies, direc- the corporation in mind and in good faith. The case was tors and officers frequently require an understanding of ultimately dismissed on the defendant’s motion for sum- the roles and responsibilities of directors and individual mary judgment. corporate officers to determine whether fraudulent intent is present or whether a due diligence defense is available. Good Faith and Bad Faith Claims The following Rule 10b-5 claim by the SEC against a CEO Corporate governance and management practices experts demonstrates the types of issues where corporate gover- may also offer helpful testimony in other types of com- nance testimony may assist the fact finder. plex commercial litigation. The following embezzlement The SEC sued the defendant CEO of a software compa- case, in which the plaintiff claimed direct and consequen- ny claiming that the CEO had intentionally orchestrated tial damages of almost $19 million against the defendant the misstatement of the company’s financial statements bank, again shows how testimony on corporate gover- through an accounting fraud, which ultimately resulted nance and management practices can be used effectively. in a restatement. The SEC further asserted that the CEO’s Two of the plaintiff’s employees embezzled almost certification of the restated financial statements was an $1 million over several years from their employer by set- admission of wrongdoing. While at first glance, this case ting up a fictitious bank account at the defendant bank. might appear to have called exclusively for account- The embezzlement resulted in the plaintiff company’s ing expert testimony, the real issue in the case was not insolvency. The company sued the bank asserting that whether the accounting was right or wrong, but whether the bank was negligent, acted in bad faith, and failed the non-accountant CEO had exercised appropriate judg- to follow reasonable commercial standards of fair deal- ment in addressing the accounting issues and in relying ing by opening the account and accepting checks and on accounting professionals. wire transfers into the fictitious account without proper The defendant’s corporate governance expert evalu- endorsement. After reviewing the evidence in the case, ated the allegations and explained how companies are the corporate governance expert, testifying on both liabil- organized and what the CEO’s role and duties were in ity and damage issues, refuted the plaintiff’s claims, as this situation as follows: follows: • All companies must rely on a division of labor to • The two employees had commenced their embezzle- operate. ment scheme several years before the fictitious • By necessity the CEO must rely on the expertise of account at the defendant bank was opened, a fact others within the company to fulfill the duties and unknown to the plaintiff at the time it filed the ini- obligations in his or her role in the overall manage- tial petition. In fact, the employees had employed ment of the company. fictitious accounts at three other banks prior to • The proper accounting for transactions under gen- opening the account at the defendant bank and had erally accepted accounting principles (GAAP) is embezzled a total of almost $2 million through the not always a black-and-white issue and requires fictitious accounts at multiple banks. accounting expertise.

46 | June 2010 | NYSBA Journal • The CEO was not an expert in accounting and had ence qualified by education may be able to explain what the right, in this instance which involved compli- pathogens contaminate food, but if the question at issue cated accounting issues not fully resolved by the is customary safety practices and processes used in a accounting rules, to rely on the accounting judg- kitchen to avoid food contamination, a chef with years ment of both internal and external accounting proof experience in preparing food is more qualified than fessionals as to the proper way to account for the the food scientist to answer this question. Similarly, a transactions in question. mechanical engineer may be able to explain the forces • The CEO had not ignored his duties, but rather had at play on a racehorse’s legs in running a race, but if the diligently performed those duties by seeking the issue is what to do to avoid injury in running a race, a advice of experts in an effort to fulfill his obliga- jockey qualified by years of practical experience in riding tions. horses in races can more credibly answer the question This analysis was helpful in establishing that the CEO than the mechanical engineer. had acted appropriately without fraudulent intent. The Similarly, those with practical experience in corporate case was settled for a nominal five-figure sum after the governance are generally better able to explain good cor- judge stated at a pre-trial hearing that he did not believe porate governance practices than those simply qualified a fraud charge could be supported at trial. by academics. Courts, for example, have focused on experience in both corporate law and securities law in qualify- Who Is Qualified to Testify as a Corporate ing attorneys as corporate governance experts. Lawyers Governance Expert? testifying on corporate governance issues, however, may Once it is determined that the testimony of a corporate have their testimony excluded, or at least limited, based governance expert would be helpful to the trier of fact on the well-recognized principle that experts cannot to understand the evidence, the next question is, Who testify about legal issues. In court, there is only one legal is qualified to testify as a corporate governance expert? expert – the judge.3 Courts, in the exercise of their gatekeeper role under In the management area those with actual, real-world Federal Rule of Evidence 702, must decide at the outset upper-level management or board experience are quali-

Those with practical experience in corporate governance are generally better able to explain good corporate governance practices than those simply qualiﬁ ed by academics. who is qualified to testify as a corporate governance fied to testify on corporate governance practice issues. expert. Under Federal Rule of Evidence 702, a witness Those who have sat on or advised boards and been can be qualified as an expert “by knowledge, skill, involved in making key decisions understand the process experience, training, or education.” Courts reviewing and the structures necessary to govern an organization academic credentials have qualified practicing attorneys, effectively and fairly. General knowledge of the primary law school professors, MBAs, microeconomists, and activity areas within companies, i.e. production, market- CPAs as corporate governance experts. But not every ing, finance and accounting, legal, research and devel- attorney, MBA, accountant or economist is qualified to opment, human resources, external relations, and IT is testify as a corporate governance expert. Thus, the need required, as well as an understanding of both formal and to clarify what other qualifications should be expected of informal organizational structure. those who represent themselves as qualified corporate Experience with external financial reporting processes governance experts. and other corporate communications, including annual The Advisory Committee notes to Federal Rule of filings, interim filings, proxy statements, other SEC fil- Evidence 702 (2000 amendments) recognize that in some ings and SOX requirements, is frequently important. fields experience may be the “predominant, if not sole Knowledge of how oversight and control systems and basis, for a great deal of reliable expert testimony.” Courts checks and balances, both formal and informal, actually must look beyond a proposed expert’s academic or tech- work within an organization is key. Such systems go well nical training credentials when determining whether that beyond review of the income statement and balance sheet expert is qualified to render an opinion in a given area. and must focus on operating cash flows, capital expen- They must also examine the full range of the expert’s ditures and other key value drivers. Familiarity with the practical experience.2 Experience may trump academics functioning and structure of board committees such as in many situations. For example, a Ph.D. in food sci- the audit committee, the compensation committee, the

NYSBA Journal | June 2010 | 47 nominating/governance committee, and the evolving the proper context of what was known at the time the risk management committee can also be useful.4 The decision was made. Practicing attorneys, law school pro- ability to explain the uncertainties involved in making fessors, microeconomists, MBAs and CPAs have all been business decisions and the processes, practices, and infor- qualified as corporate governance experts by the courts, mation necessary to make good decisions may best reside but education in law, economics, or management is not in those who have made these decisions. alone sufficient to qualify one as an expert in corporate governance. A corporate governance expert should also Conclusion have practical experience in dealing with corporate The testimony of a corporate governance expert can be governance issues – both to qualify as an expert and to helpful to the jury in a variety of causes of action, espe- enhance his or her credibility with the trier of fact. ■ cially where complex business decision-making practices and processes are at issue. Breach of fiduciary duty 1. See, e.g., Bauman v. Centex Corp., 611 F.2d 1115, 1120–21 (5th Cir. 1980) (corporate management issues may be complex and require expert testimony; cases, securities violations claims and, frequently, fraud the court admitted expert testimony of management consultant on corporate and bad-faith claims all include issues that implicate finance issues) the management decision-making process and actions. 2. United States v. Parra, 402 F.3d 752, 758 (7th Cir. 2005). Understanding the roles and responsibilities of officers, 3. See, e.g., Askanase v. Fatjo, 130 F.3d 657, 673 (5th Cir. 1997). directors and others with decision-making authority 4. See H. Stephen Grace, Jr. & John E. Haupert, Corporate Governance and the processes and structures in place in a business Consultants: The Issue of Qualifications, NACD – Directors’ Monthly (May 2007). entity to ensure good decision making is important in these cases to help the trier of fact place the decision in

NYSBABOOKS Consumer Bankruptcy Second Edition Consumer Bankruptcy, Second Edition provides practitioners with an integrated expla- nation of consumer bankruptcy from both debtor and creditor perspectives. It also includes the most recent changes to the Federal Rules of Bankruptcy Procedure, effective December 1, 2009, as well as links to official websites where the latest developments may be found. The second edition provides invaluable official and procedural forms as well as relevant bankruptcy statutes. Especially useful to New York practitioners is the inclusion of the local bankruptcy rules for all four federal districts.

The second edition of Consumer Bankruptcy has undergone substantial reorganization reflecting the comprehensive changes in the Bankruptcy Law in recent years. The Bankruptcy Abuse Prevention and Consumer Protection Act, enacted in 2005, was the reason for many of the substantive changes to consumer bankruptcy law, particularly as AUTHOR it pertains to individuals seeking relief from debt under either chapter 7 or chapter 13 of Susan Jensen-Lachmann, Esq. the Bankruptcy Code.

Consumer Bankruptcy, Second Edition is authored by Susan Jensen-Lachmann who pre- INFO & PRICING viously co-authored the first edition of this book with the Honorable Jeremiah E. Berk. PN: 40456 | 2010 | 770 pages | looseleaf Susan Jensen-Lachmann is counsel to the Committee on the Judiciary of the U.S. House of Representatives, where she is primarily responsible for bankruptcy and commercial NYSBA Members $125 legislation. Ms. Jensen-Lachmann is also the author of law review articles and has contrib- Non-Members $170 uted to various treatises on bankruptcy law and practice.

To order call 1.800.582.2452 ** Free shipping and handling within the continental U.S. The cost for shipping and handling outside the or visit us online at www.nysba.org/pubs continental U.S. will be added to your order. Prices do not include applicable sales tax. Mention code: PUB0760 when ordering.

48 | June 2010 | NYSBA Journal You’re a New York State Bar Association member. You recognize the value and relevance of NYSBA membership. For that, we say thank you.

The NYSBA leadership and staff extend thanks to you and our more than 77,000 members — from every state in our nation and 113 countries — for your membership support in 2010.

Your commitment as members has made NYSBA the largest voluntary state bar association in the country. You keep us vibrant and help make us a strong, effective voice for the profession.

Stephen P. Younger Patricia K. Bucklin President Executive Director MEET YOUR NEW OFFICERS

President ADR Task Force. A long–time trustee of Albany Law Stephen P. Younger School, Younger is past president of its National Alumni Stephen P. Younger of Council. New York City, a partner at Patterson Belknap President-elect Webb & Tyler, LLP, took Vincent E. Doyle III office on June 1 as the Vincent E. Doyle III, a 113th president of the partner of the Buffalo law 77,000-member New York firm Connors & Vilardo State Bar Association. LLP, took office on June The House of Delegates, 1 as president-elect of the the Association’s deci- 77,000-member New York sion- and policy-making State Bar Association. The body, elected Younger at House of Delegates, the the organization’s 133rd annual meeting, held this past Association’s decision- January in Manhattan. and policy-making body, Younger graduated cum laude from Harvard University elected Doyle at the orga- in 1977 and earned his law degree magna cum laude from nization’s 133rd annual Albany Law School in 1982 where he was editor-in-chief meeting, held this past January in Manhattan. As the cur- of the Albany Law Review. rent president-elect, Doyle chairs the House of Delegates He is a leading commercial litigator known for his and the President’s Committee on Access to Justice work in the arbitration field and he regularly represents (formed to help ensure civil legal representation is avail- financial institutions, mutual funds, hedge funds, pen- able to the poor). In accordance with NYSBA bylaws, sion funds and venture capital firms in securities dis- Doyle becomes president of the Association on June 1, putes. A seasoned trial lawyer, he has tried many cases 2011. in federal and state court and before arbitration panels, Doyle is a trial and appellate attorney whose practice and frequently argues appeals, particularly in the appel- includes civil and white collar criminal litigation, and late courts of New York. Based on his significant ADR representation of professionals in disciplinary proceed- experience, he is often called on to serve as an arbitrator ings, as well as advising on legal ethics matters. He or mediator in high-stake matters. received his undergraduate degree from Canisius College Prior to joining Patterson Belknap, Younger served as and earned his law degree from the University at Buffalo law clerk to the Hon. Hugh R. Jones, associate judge for Law School, magna cum laude. the New York Court of Appeals. Active in the State Bar for 20 years, Doyle served Active in the State Bar since 1983, Younger most for four years as a member-at-large of the State Bar’s recently served as president-elect and chaired the House Executive Committee and on the House of Delegates. of Delegates and the President’s Committee on Access He previously chaired the Criminal Justice Section, to Justice. He is a past chair of the Commercial and the Special Committee to Ensure Quality of Mandated Federal Litigation Section, and past chair of the section’s Representation, and the Task Force to Review Terrorism Securities Litigation Committee and its Pro Bono and Legislation. He also is a member of the Trial Lawyers Public Interest Committee. He is a fellow of The New Section, Committee on Legislative Policy, Membership York Bar Foundation. Committee, Committee to Review Judicial Nominations, In addition to his State Bar activities, he served as Committee on the Tort System, and the Task Force on transition director for New York State Attorney General, Wrongful Convictions. He is a Fellow of the New York Andrew M. Cuomo and is currently a member of the Bar Foundation. Transition Committee for New York County District Doyle sits on the Advisory Committee on Criminal Attorney, Cyrus Vance, Jr. He is the chair of the Executive Law and Procedure to the Chief Administrative Judge of Committee of the CPR Institute for Dispute Resolution. the State of the Courts of New York, and was appointed Younger also is counsel to the New York State by retired Chief Judge Judith S. Kaye to the Commission Commission on Judicial Nominations, which nominates on the Jury, a blue-ribbon panel charged with formulat- New York’s Court of Appeals Judges, and is a member ing ways to improve the jury system in New York. He of the First Department Judicial Screening Committee. previously served on the Grand Jury Project, also by He currently serves on the Advisory Committee to the appointment by Judge Kaye. He also is a member of the Commercial Division of the New York State Supreme New York State Judicial Screening Panel for the Fourth Court. He also served as a member of the Chief Judge’s Judicial Department.

50 | June 2010 | NYSBA Journal An active member of the Bar Association of Erie Treasurer County, Doyle served on its Board of Directors from Seymour W. James, Jr. 2003–2006; currently, he is president of that association’s Seymour W. James, Jr., of Aid to Indigent Prisoners Society. He also serves on the New York City, has been Board of Trustees of Villa Maria College in Buffalo. re-elected to a third term as treasurer of the New York Secretary State Bar Association. David P. Miranda James received his David P. Miranda, a part- undergraduate degree ner of the Albany law from Brown University firm Heslin Rothenberg and earned his law degree Farley & Mesiti P.C., from Boston University is the new secretary of School of Law. the 77,000-member Bar James is the Attorney- Association. Miranda took in-Charge of the Criminal Practice of The Legal Aid office on June 1, 2010. Society in New York City. In that capacity, he is respon- Miranda received his sible for the Society’s trial, parole revocation and appel- undergraduate degree late criminal practice. from the State University Active in the State Bar since 1981, James is a member of of New York at Buffalo its House of Delegates, Finance Committee, Membership and earned his law degree from Albany Law School. Committee, and Committee on Diversity and Leadership An experienced trial attorney whose intellectual prop- Development. Within the Criminal Justice Section, James erty law practice includes trademark, copyright, trade serves as a member-at-large of its Executive Committee. secret, false advertising, and patent infringement, as well He served as the Vice President for the 11th Judicial District as licensing, and Internet-related issues, Miranda has from 2004–2008 and on numerous committees, including served as a member-at-large of the State Bar’s Executive the Nominating Committee, the Special Committee on Committee since 2006. He chaired the Young Lawyers Association Governance, the Committee on Legal Aid, Section from 2002–2003 and was that section’s delegate the Committee on Attorneys in Public Service and the to the American Bar Association from 1998 to 2000. A Task Force on Increasing Diversity in the Judiciary. He is past chair of the Electronic Communications Committee, a Fellow of the New York Bar Foundation. he is a member of the Commercial and Federal Litigation James is a past president of the Queens County Bar Section, the Committee on Continuing Legal Education Association and has served on a number of that associa- and the Committee on the Annual Award. He also served tion’s entities, including its Judiciary Committee. He also on the Task Force on E-Filing and the Special Committee is a member of the Macon B. Allen Black Bar Association on Cyberspace Law. and a former member of the Board of Directors of the Miranda is the immediate past president of the Albany Metropolitan Black Bar Association. County Bar Association. In 2009, he served on the In addition to his bar association activities, James is a Independent Judicial Election Qualification Commission member of the Departmental Disciplinary Committee for for the Third Judicial District of the State of New York. In the First Judicial Department, the Committee on Character 2002, then-Chief Judge Judith Kaye appointed him to the and Fitness for the Second Judicial Department and the New York State Commission on Public Access to Court Independent Judicial Election Qualification Commission Records. for the Second Judicial Department. He also serves as the He received the Capital District Business Review’s secretary of the Correctional Association. 40 Under Forty Award for community involvement and James has served as an Adjunct Professor of Law at professional achievement in 2001. He was editor-in- CUNY Law School and on the faculty of the Benjamin chief and contributing author of The Internet Guide for N. Cardozo School of Law Intensive Trial Advocacy New York Lawyers in 1999 and 2005, and is the author Program. of “Defamation in Cyberspace: Stratton Oakmont, Inc. v. Prodigy Services Co.,” published in the Albany Law Journal of Science & Technology. He is an arbitrator of intellectual property disputes for the National Arbitration Forum.

NYSBA Journal | June 2010 | 51 LANGUAGE TIPS BY GERTRUDE BLOCK

uestion: It troubles me that The second mistaken assumption There is, of course, nothing wrong The Washington Post seems to of the 18th-century grammarians was with observing the invalid infinitive- Qsplit infinitives as a matter that language could be set by fiat and rule. But if there were such a rule, it of policy, and The New York Times prevented from changing. They were would be stylistic, not grammatical. also permits the practice. Split infini- unaware that majority usage deter- If splitting an infinitive would result tives too often weaken the verb with- mines both the meaning and the gram- in clarity and emphasis, split it. The out adding the emphasis the author mar of a language. The English gram- following sentences containing split intended. Please comment. marians were also unaware that Latin infinitives seem to me to pass that test, Answer: Attorney Nicholas Cobbs, had undergone many changes since but you may differ: who sent these comments, is not the the classical rules were written, so that It is necessary to really understand first correspondent to voice his dislike Latin, too, had been corrupted. But, the matters at hand. of split infinitives. Most of the readers undeterred by their limited knowl- The result was to considerably who agree with him believe there is edge, the 18th-century scholars pur- lessen the benefit. a grammatical rule against splitting sued their agenda. The aim is to better equip candi- infinitives that even those who ought One of the characteristics they dates for office. to know better (like the journalists deplored was that the English infini- Some readers also believe that an mentioned above) are breaching. tive had been divided into two words. expanded infinitive rule proscribes the In fact, the rule against splitting In Latin, the infinitive form itself had insertion of an adverb into a verb infinitives originated with 18th cen- contained the preposition to. As we all phrase. Timothy Levin, of Harrisburg, tury grammarians, who thought that learned in Latin 101, amare means “to Pennsylvania, sent two illustrations of there ought to be such a rule, so they love.” Obviously, that infinitive ought supposedly incorrect usage. created one. It was clear to these well- not have been “split.” (The grammari- Average weighted maturity will educated gentlemen that the English ans could merely have re-joined the two ordinarily exceed five years. language needed help because it was, words, creating the infinitive form to The portfolios may also invest in as their leader Bishop Robert Lowth, love, but they ignored that possibility.) other fixed income securities. an Oxford University professor, said So the rule against splitting infini- He also provided correct versions of “extremely imperfect” and “Many of tives was born. Thus they announced the same statements: even the best writers” constantly make that phrases like: “to safely refuse,” Average weighted maturity ordi- egregious errors in English. So it was “to carefully consider,” “to politely narily will exceed five years. imperative that they, the “authorities” – acknowledge,” and “to unduly post- The portfolios also may invest in wise persons knowledgeable about the pone” were ungrammatical. (All these other fixed income securities. language – take charge. phrases were taken from modern legal But there is no rule against insert- The problems of English occurred, casebooks.) Replace these with: “safe- ing adverbs into verb phrases. All four these grammarians believed, because ly to refuse,” “carefully to consider,” of the above statements are grammati- speakers of English were polluting the “politely to acknowledge,” and “undu- cal. The only distinction in preference language. The English language had ly to postpone.” (Also correct would is that of clarity. The second two sen- been polluted by straying from Latin, be, “to refuse safely,” “to consider care- tences may be ambiguous because the the perfect language, but Lowth’s book, fully,” “to acknowledge politely,” and adverbs might be understood to mod- Proposal for Correcting, Improving and “to postpone unduly.”) ify the preceding word rather than the Ascertaining the English Tongue, would The trouble with their “rule” was following word. For example, does cure its ills by enforcing Latin rules on that almost nobody observed it. the phrase “ordinarily will exceed” English grammar, even retaining their English royalty and aristocrats ignored modify maturity or does it modify (as Latin names (nominative, genitive, it, and the English lower classes were intended) five years? This problem is dative, accusative, and ablative). blissfully unaware of it. Schoolmarms called the “Janus effect,” so-called for There were at least two problems with obediently taught it to their pupils, but the mythical Roman god of doors, who that plan. First was the grammarians’ forgot to observe it. The pupils remem- could look both forward and back. ■ assumption that English had descended bered to cite it, but forgot to follow it. from Latin. It is true that both lan- In America, however, with its huge GERTRUDE BLOCK is lecturer emerita at the University of Florida College of Law. She is the guages descend from the Indo-European middle class of “rules-followers,” a author of Effective Legal Writing (Foundation progenitor, but there are many Indo- surprising number of people felt that Press) and co-author of Judicial Opinion Writing European groups, and English descends to split an infinitive was almost sinful. (American Bar Association). Her most recent from the Germanic group, while Latin It became a shibboleth, distinguishing book is Legal Writing Advice: Questions and descends from the Italic group. the educated from the uneducated. Answers (W. S. Hein & Co., 2004).

52 | June 2010 | NYSBA Journal The latest NYSBA Monograph Series © 2009 Business/Corporate Mortgages Law and Practice Authors: Philip C. Kilian, Esq.; Christopher P. Daly, Esq. Authors: Michele A. Santucci, Esq.; Professor Leona Beane; 2009-2010 • 246 pp. • PN: 41389 Richard V. D’Alessandro, Esq.; Non-Mmbr Price: $80 / Mmbr Price: $72 Professor Ronald David Greenberg 2009-2010 • 860 pp. • PN: 40519 Non-Mmbr Price: $80 / Mmbr Price: $72 New York Residential Criminal Law and Practice Landlord-Tenant Law Authors: Lawrence N. Gray, Esq.; and Procedure Honorable Leslie Crocker Snyder; Authors: Honorable Gerald Lebovits; Damon Honorable Alex M. Calabrese P. Howard, Esq.; Victor S. Faleck, Esq. 2009-2010 • 160 pp. • PN: 406499 2009-2010 • 366 pp. • PN: 41699 Non-Mmbr Price: $80 / Mmbr Price: $72 Non-Mmbr Price: $80 / Mmbr Price: $72 Debt Collection and Probate and Administration Judgment Enforcement of Decedents' Estates Author: Paul A. Peters, Esq. Authors: Jessica R. Amelar, Esq.; 2009-2010 • 222 pp. • PN: 42389 Arlene Harris, Esq. Non-Mmbr Price: $80 / Mmbr Price: $72 2009-2010 • 188 pp. • PN: 419699 Non-Mmbr Price: $80 / Mmbr Price: $72 Elder Law Real Estate Transactions— and Will Drafting Commercial Property Authors: Jessica R. Amelar, Esq.; Author: Christina Kallas, Esq. Bernard A. Krooks, Esq. 2009-2010 • 344 pp. • PN: 40379 2009-2010 • 318 pp. • PN: 40829 Non-Mmbr Price: $80 / Mmbr Price: $72 Non-Mmbr Price: $80 / Mmbr Price: $72

Limited Liability Real Estate Transactions— Companies Residential Property Author: Michele A. Santucci, Esq. Authors: Kenneth M. Schwartz, Esq. 2009-2010 • 554 pp. • PN: 421499 2009-2010 • 326 pp. • PN: 41249 Non-Mmbr Price: $80 / Mmbr Price: $72 Non-Mmbr Price: $80 / Mmbr Price: $72

Matrimonial Law Representing the Personal Author: Willard H. DaSilva, Esq. Injury Plaintiff in New York 2009-2010 • 314 pp. • PN: 412199 Author: Patrick J. Higgins, Esq. Non-Mmbr Price: $80 / Mmbr Price: $72 2009-2010 • 454 pp. • PN: 41919 Non-Mmbr Price: $80 / Mmbr Price: $72

Mechanic's Liens Social Security Law Authors: George Foster Mackey, Esq.; Norman D. Alvy, Esq. and Practice 2009-2010 • 152 pp. • PN: 403199 Author: Charles E. Binder, Esq. Non-Mmbr Price: $80 / Mmbr Price: $72 2009-2010 • 196 pp. • PN: 422999 Non-Mmbr Price: $65 / Mmbr Price: $57

Mortgage Foreclosures Zoning and Land Use Author: Francis J. Smith, Esq. Authors: Michael E. Cusack, Esq.; 2009-2010 • 90 pp. • PN: 414199 John P. Stockli, Jr., Esq. Non-Mmbr Price: $80 / Mmbr Price: $72 2009-2010 • 120 pp. • PN: 423999 Non-Mmbr Price: $70 / Mmbr Price: $62

Free shipping and handling within the continental U.S. The cost for shipping and handling outside the continental U.S. will be added to your order. Prices do not include applicable sales tax. To purchase the complete set of 16 Monographs, or for more information Call 1-800-582-2452 or visit us online at nysba.org/pubs Mention Code: PUB0761 NEW MEMBERS WELCOMED

FIRST DISTRICT Anna Carla Burns Wolcott B. Dunham Catherine Sylvia Hanley Aaron Jonathan Kleinman David Matthew John Patrick Burns Kathleen Ann Eagan Zachary Richard Harkin Katherine Ann Kohan Abramowicz Konstantin Burshteyn Russell Dale Eckenrod Ian Harris Charles Salem Korschun Cindy Paige Abramson Atara Burstein Michael Steven Elliott Nicole Leigh Harris Michael S. Kraft Sharmila Achari Mirna R. Cardona Brandy Lee Ellis Elena Hope Hassan Caroline Elizabeth Tracy Lynn Adamovich Brie Ann Carey Douglas Joseph Elsbeck Brian Hecht Kravath Cesilo Harold Del Fierro Elizabeth C. Carter Robert Payam Enayati Bracha Hedaya Christina H. Kulawas Adaza Alexis Helene Castillo Andrew M. Englander Courtney David Heinle Sophia Kwon Angelica Agnitti Jeffrey Michael Cerio Brittany Dawn Enniss Daphna Heisler Younga Jean Kwon Joshua Jongpeal Ahn Albert Chang Laura Elizabeth Erb John Abraham Heisman Colman Liam Kynch Brittany Trulaine Akins Eunmi Chang Patrick Reilly Evans Jaime Oscar Hernandez Kelli L. Lanski Jason Michael Allen Sara E. Chang Jared Adam Bennett Jan Niklas Herriger Luke Edward Laumann Roberto Manuel Alonso May Chau Feiger Jonathan Hillel Christopher Gunn Lee Olmo Andrew Craig Cheatham Michel Fernandez Mariko Hirose Justin David Lee Natalie Amar Ginni E. Chen Kristopher Thomas Evgeniya Emilova Vivian Sun Lee Aaron Stephen Amaral Julie S. Chen Ferranti Hochenberg Jeffrey Marc Leider Andrew William Amend Teresa Tien-ning Chen Alexis Jenna Fershing Mary Anne Holst Kathryn Keves Leonard Bryan Christian Anderson Xi Chen Christopher Lee Filburn John Brilling Horgan Eugene Lerman Alvaro Arce Irina Chikerinets Charles Fillon Jonathan Richard Horne Evan Pays Lestelle Noah Matthew Arenstein Patrick Tyler Childress Wallis Kundar Finger Albert Po-wei Huang Michael William Lever Mark Andrew Aronsson Yukyong Choi Patricia Lynne Finneran Brianne E. Huebner Brian Matthew Levine Brian Craig Ascher Jean L. Chou David J. Fintz Daniel Paul Hughes Meredith Faye Levine Mona S. Awad Daun Chung Zach Abraham Firestone Megan Anne Hughes William Robinson Levine Daniel Chae Bae Valerie Nicole Clark Jessica Paige Fisher Kristen Ann Hutchens Amanda M. Levy Hana Bae Renauld Gillman Clarke Patrick Edward Parker Neil Hutchinson Pearl Levy Nadjia Isaacs Bailey Jean Ann Clemente Fitzsimmons Aviania Iliadis Toby Derrick Lewis Abhishek Bapna Benjamin Jacob Cohen Brandon Joseph Fred Taylor Isquith Noah Robins Liben Ronald L. Barabas Seth Cohen Fleischman Gordana Ivanovic Ari Roberts Lieberman Christopher M. Barlow Edward Aloysius Martin Oliver Cabrera Edward Henderson Ivey Jeff S. Liebmann Jason Bartlett Coleman Fojas Amanda Hasan Jaber Mei-hsuan Lin Sipoura Barzideh Charles Edward Colman Edmond Robert Foy Benjamin Martin Jaccarino Andrew Zachary Lipson Kevin Timothy Baumann Sara Cristina Colon Jennifer Audrey Fradlin Halim Jbeili Elaine Jennifer Lo Ahmet Sitki Bayazitoglu Nicholas Connor Sean Matthew Friedland Kerry Jerard Jefferson Elaine Kayuki Lou Roberta Bender Elana Cara Cooper Lauren Faye Friedman Sung-eun Jo Daniel James Louis Jeffrey Louis Benner Rob Corbett Stephen Nicholas Friend Kenneth Brian Joe Deborah Pilar Low Jessica Celeste Bennett John Anthony Corbin Michael Aaron Fuerch Seth Lee Johnson Chune Loong Lum Taylor William Bentley Zulfia T. Corrigan Megan Fuller Drew Turner Johnson- Nicole Marie Lunn James George Bergamo Christopher Karnel Michelle Burton Galdos Skinner Julia Lushing James Michael Berger Couvelier Caitlyn B. Gale Charlene Alicia Jones Jesse Ma Jayme Michelle Bethel Mary Ann Cox Michael Ian Garber Sarah Joy Stacy Yu-hao Kanani Ma Berglind Halldorsdottir Sean Cox Thomas Blair Gardner Krystal Marie Juncosa Jelena Madunic Birkland Jeannetta Keta Craigwell- Lindsay Ivy Garroway Andrew Lee Kalloch Kate Aliza Magaram Ashley Birnbaum Graham Matthew Brandon Gautier Clay Hubbard Kaminsky William Mahouski Scott Douglas Birnbaum James Henry Creedon Alicia Yolanda Gayle Matthew Lewis Kanter Jayshree Mahtani Rachel Elizabeth Black- Amanda Christine Adam Joseph Gelardi Lindsay Rachel Kaplan Sarah Elizabeth Malkerson Maier Croushore Boris Gelfand Michelle Karkowsky Richard Coke Marshall Jennifer H. Blecher Mariel Elizabeth Cruz Jonathan Andrew Glass Nicole Jennifer Karlebach Mallory Natalie Bloch Daniel Russer Culhane Leah Godesky Melissa Brooke Karp Felicia Yvonne Mann Kevin Scott Blum David Cykiert Sascha Goergen Andrew Nathaniel Jane Katherine Manning Mary Eleanor Bobbitt Serena Beth David Noah Alexander Gold Kaspersen Beth Maura Margolis Alissa Marla Boshnack Jonathan Eric Davis Joseph Goljan Joshua David Katcher Michael Eugene Mariani Aaron Zakon Bourke Jessica Theresa DeBartolo Suzanne Celia Grandt Jason Phillip Katz Stefanie Markman Lindsay Warren Bowen Oliver Degeest Lindsay Heather Gray Vanessa Lorraine Keegan- David Gareth Marks Victoria Kinh Boyne Yafang Deng Sarah Sophia Gray Natola Eric David Marlowe Robert Joseph Bragoli Patrique Philippe Denize Michael Greenberg Matthew Alan Kelly Paul Timothy Martin Kelley Renee Brandstetter Rebecca Jean Dent William Stewart Noelle Kenel-Pierre Shingira Samantha Tamara J. Britt Trevor Johnathan Desane Grimshaw Anastasia Marie Kerdock Masanzu Katherine Lauren Robin Mira Dewji Patricia Mary Groot Jan-Philip Kernisan Stephanie Renee Mash Bromberg Brian Scott Dieter Alice Esther Guy Leslie Erin Kersey Karine Mashuryan Taryn Christine Brown Anne Digiovanni Lula A. Hagos Megan Berger Kilzy Joshua David Masters William Joseph Bryan Annemarie Susan Dinicola Dana James Hall Hyejin Jennifer Kim Peter Thomas Mazzone Lauren Marie Buonome Risa Meredith Drexler Margaret Anne Hallet Karen Kim Melanie Anne Julie Rebecca Burakoff Jessica Lynn Dubuss Michael Eugene Sung Hoon Kim McCammon Kevin James Burke Kabir Ashok Nina Duggal Hamburger Adam Thomas Kirgis Patrick Michael McGill

54 | June 2010 | NYSBA Journal Bryan Anthony McGrane Susanna E. Parker Susan D. Scharf Andrea Han Sung Delroy Anthony Wright Sean David McGrath Michael Richard Parodi Michael David Schenker Jennifer Ann Surprenant Oksana Gaussy Wright Patrick Robert McHenry Julie Lina Pasquale Stefanie Alyson Schiffer Mark Allan Sweeney Ting Wu John Michael McHugh Massiel Pedreira- Michael Scott Schimmel Laszlo Szabo Mark Wenjian Xiong Matthew John McKenzie Bethencourt Eric Carl Schmale Kuang Tan Gregory Paul Yaecker Patricia Ruth McWilliam Dino Paolo Peragallo Jonathan Chaim Schwalb Ilene Beth Tannen Jay Koichi Yamamoto Dov Ber Medinets Lauren Elizabeth Perry Laura Kelley Schwalbe Meredith Tapper Hope Starr Yates Prakash H. Mehta Yakob Mark Peterseil Andrew Eric Schwartz Daniel Joseph Tarnopol Chieh-ting Yeh Nehal Ali Memon Prentice R. Petrino Benedict John Schweigert Joseph Taub Justin Daehan Yi Noel Mendez Jeril A. Philip Crystal Maria Scialla Jordan Knight Taylor Brian Youn Sean Daniel Mersten Gary Michael Phillips Steven Jay Segal Kiki Lasha Taylor Chadwick Young Trevor Jay Messenger Anna Maria Piazza Theodore Zellie Segal Matthew Paul Telford Kimberly Ann Yuhas Melissa Renee Middleton Mendy Menachem Jennifer M. Selendy Christopher Terranova Jasmine Zacharias Amanda Nicole Miller Piekarski Ari Micah Selman Justin Shaun Terry Ian Joseph Zack Elyse Diane Miller James Steven Pincow John Anthony Serio Tulani Estelle Thaw Jenny Xueni Zhang Olga Miller Ryan Grant Pitman William Joseph Seymour Michael O’Neil Thayer Yingxue Zhang Stephen Elliot Miller Alicia Leilani Pitts Shruti Prabodh Shah Edward Garth Timlin Zen Zhen Zhang Sara Helen Mischner Ariel Bilton Pizzitola Michael Joshua Shampan Michael Jason Tisch Xiaojin Zheng Donald Brian Mitchell Robin Marie Plachy Adam B. Shane Alex Jay Tolston Yeqing Zheng Alan Jay Plumer Caitlin Spencer Shannon Judith Winifred Tomkins Margaret H. Mo SECOND DISTRICT Matthew David Podolsky Matthew Clark Shapiro Eric Avery Treichel Amy Marie Modzelesky Marcus Muir Baldwin Arthur L. Porter James Michael Shea David Aaron Troupp Lindsay Senechal Ryan Michael Bates Jonathan Daniel Powers Catherine Caroline Shearn Amber Ann Trumbull Moilanen Camille Chin-Kee-Fatt Rebecca Ruth Press Hema Vasudeva Shenoi Brian Michael Trunzo Abby Marie Mollen Sara N. Cross Kelly Ann Pressler Daniel J. Shim Thien An Vinh Truong Eileen Siobhan Monaghan Alex Jonathan Feerst Michael Richard Psathas Ariella Shkolnik Nicolas Reid Tuliebitz Nicole Moosavi Michael Edward Francis Ryan Richard Purcell Matthew Shoenthal Noah Alexander Tulin- Siobhan Frances Moran Jennifer Fraser Shawn J. Rabin Sara Nicole Shouse silver Joshua R. Morgan Thomas Gilanyi Shafinaz Nilufer Rahman Itzhak Shukrie Andrew Charles Robin Mathew Mordecai Zachary B. Grendi Gabriel Virgil Rauterberg Emily Ann Sickelka Veit Morgenstern Natasha Grinberg Jonathan Michael Ream Mohammad Shehzadur Jared Velez Andrew Howard Morton Michael John Hawkins Jeffrey John Recher Rahman Siddiqui Josephine Mary Jane Vella Adam Wesley Moses Lynne Troy Henderson Joshua Aaron Redman Richard A. Siegal Paul A. Victor Alan Moskowitz Julia Amanda Hiatt-Shepp James Thomas Reilly Jeremy S. Siegel Monica Villegas Ruth Solomon Moskowitz Holly Shino Hobart Katherine Cannella Reilly Anna Augusta Siemon Cassandra Louise Waduge Antonio Muinos Jillian Deborah Howell Katherine Collins Reilly Naree Sinthusek Natasha Louise Waglow Jennifer L. Murabito Umberto P. Jean-Louis Kate Renaud Brian Patrick Slough Justin James Waldie Brett Andrew Nadler Tania Lawrence Klam Joanne Marie Ricciardiello Alvey Brandon Smith Ian Keith O’Leary Walker Melissa H. Nafash Shekar Krishnan Arlene Beth Richman Christopher Kimbrough Jerry A. Wang Andre Bernard Nance Daniel Marshall Lewis Clinton Scott Rickards Smith Pong-jeh Wang Amrita Kaur Nangiana David Frank Lisner Adam Donnelly Riedel Jessica Lynn Smith Andra Waniek Laura Cristina Nastase Tazio Nuvolari Lombardo Jaime Lynn Rietema Courtney Alyssa Snyder Daniel Paul Weick Daniel J. Navarro Jennifer Nwabugo Ngozi Alexander Roessner David Soofian Lowell Palmer Weicker Laird Elizabeth Nelson Mbagwu Ritchie Constantin Souris Andrew Lee Weinstein Jesse Nevarez Edward P. McKenna William Zaki Robbins Sunila Sreepada Daniel Bernard Weinstein Benjamin Alexander Marina Mekhlis Jay Derek Robert Lauren Christine Stabile Joshua Darman Weiss Newman Aaron Reid Monroe- Melinda Ruth Roberts Jessica Ruth Staler Elizabeth Woods Whiston Erik Joseph Niit Sheridan Stephanie Marie Rodetis Simeon Etan Stamm Benjamin Richard Wilson Masumi Nishi Arthur Oder Jonathan Gregory Rohr Matthew Anthony Stark James Tyler Wilson Siri Skinstad Odegaard Melissa Amanda Paul Marc Brian Roitman Jessica Stein Austin Reed Winniford Zara Ivie Ohiorhenuan Leigh Ann Perez Solene Anne Laure Nicole Amy Stein Michael Lu Wong Kathleen Guerra Oliver Rachel Antoinette Romieu Phoebe Alice Stone Elizabeth Caitlin Woodard Matthew John Oliver Ramsay-Lowe Chelsea Maren Rosen Thomas Byrne Sullivan Justin Woolverton Scott Clifford Ollivierre Hannah Weiner Riedel Oliver Travis Olsen Maxwell David Rosenthal Ona Adaeze Nwanna Elaine Sara Roth Oshen Marc Brian Rotter In Memoriam Lindsey Claire Owen David Evan Rudall Marc Pane Jennifer Rachael Saionz Adyo Winette Sampson Steven Michael Pantina Alfred H. Beck Walter P. Halm Luis Orlando Sanchez William Nestor Papain San Ramon, CA Owego, NY Megha Hemant Parekh Robert Carey Santoro Haley Park Neema Saran Richard M. Estes Darwin R. Wales Hee Yeon Park Kristin Elizabeth Scaduto New York, NY Binghamton, NY Junyeon Park Jeffrey Peter Scaggs

NYSBA Journal | June 2010 | 55 Stephen William Rose Kate Henning Jerem O’Sullivan THIRTEENTH David Wheatley Cartner Mahsa Saeidi Allen Jerome Kozupsky Kevin Edward Paganini DISTRICT Robert Stephen Casagrand Kerry Shapleigh Jamie Ryan Kuebler Ralph Vincent Pantony Iolanda Valentina Thomas J. Casazzone Yanfei Shen David C. Martin Jennifer Pardi D’ambrosi Frank Thomas More Victoria Jennifer Siesta Lauren Ann Norberto Lijue Thomas Philip Geoffrey Dornbush Catalina Claire Marie Simpson Renata Kean Parras Travis John Podesta Kravitz Emma Channing Kelly Bernice Snitkin Meghan Colleen Reardon Adam C. Raffo Ian Miles Nerlfi Ronald Alfonso Charlot- Ari Nathanson Sommer Evan Matthew Resnick Terrence M. Riley Sean Louis Sasso Aviles Darren Birnbaum Sullivan Suzanne Pepe Robbins Sigfredo Rivera Daniel Morris Tauber Guneet Chaudhary Joseph D. Turano Charles A. Rubenstein David Adam Rosen Daniel John Watts Gregory Cheikhameguyaz Kahlil G. Winslow Ioana Joanna Sergiou Maxwell Jon Rubin Deborah Jane Chen OUT OF STATE Irena Zolotova Kenneth Spielfogel Agata Ewa Rumprecht- Hsindy Chen Cyrine Abdelmoula Jeremy Cain Vest Behrens Tao Chen THIRD DISTRICT Avniel Adler Brooke Alexis Santeramo Melissa McWilliams Jeremy A. Benjamin TENTH DISTRICT Ayan Mustufa Afridi Gregory Michael Savran Cherry Clea Bowdery Lindsey Merrideth Megha Aggarwal Ronald M. Schiffman Pei-ju Chien Julia Elizabeth Braun Albinski Mary K. Allen Scott Adam Schnepper Heejung Choi Cami Janee Daigle Andrea Amanda Amoa Ana Isabel Duarte De Robert James Seewald Hyosun Choi Chad Benjamin Denton Neil Eric Asnen Almeida-Halassa Cristine Sivec Jiyung Choi Elizabeth Ann Duncan- Paul Andrew Bartels Ayman Tawfeeq Katherine Anita Staba Devi Saran Durgacharan Gilmour Joshua S. Beldner Almoayed Sheena Rachel Townsend Chopra Michele Lynn Krug Jennifer Lynn Beneliyahu Jessica Elizabeth Almy Elliot Joseph Turner Sarah-Jane Choudhry Zachery Samuel Lampell Deborah Elise Birnbaum Tony Andre Erick Robert Vallely Tasnin Reza Chowdhury Robert Gregory Magee Jason O. Braiman Yehuda Lieb Angster Natalia Vassilieva Sheila Lee Chun Patricia A. Morrissey Matthew Forbes Maria Elisa Arango Michael Gerard Vigliotta Alexander Cesar Clavero Caitlin Doran Russ Braunschweig Zoe Marie Argento Troy Walitsky Ronald George Andrew Amanda Jean Velazquez Jesse Robert Brush Tania Artinian Emily C. Walsh Cluett Isaac Jonathan Burker John Robert Ascione FOURTH DISTRICT Kristen Elyse Lorette Brett Richard Corson Joanna Deborah Cohen Melanie Theresa Audy Petros M. Fidopiastis Yeamans Andrew William Croner Christopher Charles Raghav Bajaj Jason M. Marx Jordan Raphael Yellin Joseph William Colon Robert Frederick Baldwin Cheryl Maxwell Cummings James C. Coyne ELEVENTH DISTRICT Robert Michael Bankey Taryn Elizabeth Curry FIFTH DISTRICT Costas Cyprus Blake Nathan Abrash Jin Bao Peter Joseph D’Arco Alyssa Jean O’Neil John Robert Danzi Joshua B. Bogaty Nadim Bardawil Martin Dahlgaard Julie Anne Van Erden Chantelle Nicole Jeffrey Bruce Bott Eric Nicholas Barr Lhosa Anne Daly Dilorenzo Andrea Marie Capellas Prince M. Bartholomew SIXTH DISTRICT Nikila Dasarathy Stephen Paul Dilorenzo Mark Du Alexander Watson Beck Brett Charles Cowen Rodney Agnelo De Souza Angelo A. Dimaggio Rygo Emerson Foss Charles Addison Beckham Stephen Wesley Gorman Amy Katherine Delaney Jeffrey Allan Dodge Sheryl Fyffe-Gauntlett Andrew David Beckwith Willa Skye Payne Marie Mathilde Deldicque Jonathan James Edelstein Daniel S. Garden Natalie Michele Behm Mirella Deligi SEVENTH DISTRICT Vanessa K. Eng Jaimie A. Glover Klaus Beine Regina D. Domingo Victor Ton Yee Mui Jeannine Marie Farino Danielle Grinblat Stephen M. Benham Sean Thomas Doyle Joshua Isaac Fiscus Wei Gu Temitutu Foluke Bennett EIGHTH DISTRICT Thomas Maher Driscoll Steven Adam Fox Sergio Stuart Herrera Kristin Lorraine Berry Stacey L. Budzinski Shelley Ann Driskell Jeffrey Daniel Garfinkel Lindsey M. Karl Donovan Curth Bezer Jeffrey David Kasarjian Emilie Marine Dubreil James Michael Gibbons Monique Man Hei Lee Justin John Bintrim Jarryd David Smith Justin Paul Duda Michael Paul Gippetti Dexterrie Clemente Antionette Bishop Eric Michael Soehnlein Marjorie Patricia Duffy Trevor Gomberg Ramirez Jason Lewis Bittiger Jill Ann Spayer Philippe King Edouard Michael A. Goodman Christina Rickheeram Christopher Edward Boies Aparna Vannarath Wail Mohamed Elatta Maya S. Graham Alan Daniel Schindler Remy Bonneau Balakrishnan Leigh-Anne Dannielle Rachel Dara Grinspan Joshi Ashoma Valentine Precious Synott Boone Elock NINTH DISTRICT Douglas James Guerrin Allison Marie Warga Jeffrey Scott Bordon Kristie Marie Emard Diana Ameri Catherine Clare Guy Weiyan Zhang Olympe Helene Bory Marton Eorsi Heather Bird Michael Mario Iannuzzi Adrienne Alexis Bouleris TWELFTH DISTRICT Kari Elizabeth Erickson Deirdra Jeneva Brown Deborah Ann Johnson Ian Daniel Branum Majorie Priscilla Cohen Patrick Michael Essig Christopher Cipolla Alyssa Kapner Meredith Anne Bumpass Philip Louis Desgranges Andrew John Estes Adam Douglas Citron Jennifer Rose Kennedy Brian Louis Buzby Mariela Julissa Marinez Ayodeji Olusola Fakolade Anne Tennant Cooney Natalie Khalatov-Krimnus Devin Michael Cain John Joseph Montes Wei Fang Challis Nicole Cooper Aeden Khodabakhsh Stephen Vincent Carey Nathan Zimmerman Ashleigh Lynn Ferris Lee Ann Duffy Bryce Harris Kirschbaum Mathilde Carle Plotkin Aaron Michael Field Jay A. Fenster Barbara Mary Kirwan Filipe De Aguiar Desiree Lin Ramirez Bryan David Fields Fiona Leigh Finlay-Hunt Brian C. Kochisarli Vasconcelo Carneiro Maurice Q. Robinson Ann Marie Fitz Patrick J. Fischer Ryan Joseph Lawlor Michael Patrick Jeanette Ynfante Michael Damast Rachel Dolores Flanagan Siobhan Marie McHale Carrington Fleischman John Richard Hein Camila P. Medici Kasi Leigh Carson

56 | June 2010 | NYSBA Journal Gina-Gail Sheridah Lu Huang Nancy Lu Fabrice Lawrence Piollet Bik Kai Becky Tai Fletcher Adam Robert Innerst Xiao Luo Jeffrey Eric Pomeranz Kentaro Takagi Christine Elizabeth Flynn Heide Motaghi Iravani Kenneth MacDonald Calogero Porrello Charis En Pin Tan Douglas Michael Foley Mary Anne Iuliano Jenna Elizabeth Mace Anjana Prasad Kartikeya Kumar Tanna Eric J. Forman Kristina C. Ivtindzioski Synda Kara Mahan Shannon Hennessy Cassandre Christina Jillian Fortuna Vinay Jain Anil Jasbeer Makhija Pulaski Theano Joshua John Fougere Jacqueline N. James Elliott Malone James Barnett Puritz Carl Christian Thier Samuel Solomon Frommer Lisa Jaffa Jerles Anne Christine Manolakas Michael John Pyeron Martin Lothar Thomas Peter-James Edward Fung Melissa Beth Jones-Prus William Adrian Miles Ross Alan Pytko Saritha Komatireddy Tice Jason Douglas Gabrielsen Kyoko Kakurai Mansfield Jing Qiu Shannon Mary Tomai Shala Gafary Carey Fane Kalmowitz Deborah Kristine Marcuse Haiping Qu Michelle Paula Tonelli Matthew Edward Gale Edward M. Kaplan Anthony David Marinello Joseph Quintero Ching Suen Jane Tsui Kathryn Scarbrough Michael Takeo Kariya Paul C. Marks Katherine Margaret Ralph Kevin William Turbert Galner Charles Joseph Abraham Elithea Mas Melissa Ilyse Rassas Scott Kevin Turner Prerna Gandhi Karwowski-Hoppel Alejandro Maria Massot Marisa Ann Rauchway Timothy G. Tuttle Aoife Gannon Allyson Marie Kasetta Benjamin Mathieu Joshua Lawrence Ray Kathy Tuznik Yang Gao Ronald Francis Kavanagh Faiza Michele Mathon- Adam P. Redder Alia Kenyatta Udhiri Parisa Jafarzadeh Ghazi Gretchen Eileen Keisling mathieu William Jospeh Reynolds Sarah Maria Unger Kathleen Belle Gibson Jamuna D. Kelley Vishal Mawkin Katherine Elizabeth Riopel Steven Michael Vaccarello Jennifer Michelle Giella David King Kessler Lisa Marie McClurkin Edward Karl Roggenkamp Deborah Rae Van Alstyne Eric Michael Glazer Dongsung Kim Lakshmi Menon Capucine Nele Rosenfeld Eugenie A. Voitkevich Collin Russell Glidewell Elizabeth J. Kim Jocelyn Annise Merced Edward Francis Roslak Lea Mary Vuillerod Andrew Myles Golodny Ji Hyun Kim Deena Mikhail Seth Adam Rudin Monica Wahba Jaime Rose Gottlieb Jin Ha Kim Mourad Mikou Brandon Cory Rudnikoff Adam Scott Walker Aaron Henry Gould Jung Yun Kim Fabiano Marques Milani Jason Ryu Mark J. Walters Katie Ann Gramling Mira Kim Corrine Amanda Militz Sumit Ranjan Saha Tracy Wang Beth Ann Grassette Alcide De Jean King Danielle Katherine Miller Abhinav Sanghi Colin Patrick Watson Elizabeth Gingold Bobbie Lee King Christina Miranda Justin Daniel Santagata Ariel Zev Weisbard Greenman Dennis Danai Kitt Babasijibomi Asiwaju Chandan Sarkar David Cortright Weiss Nitika Grover Kiril Margaritov Klaturov Moore Michael Schakow Kathleen Margie Wells Patricia Vellos De Luna Jacqueline Renee Koch Brendan Hugh Morris Lisa Schapira Stefan Winheller Guidi Nitin Shenoy Konchady Michael J. Moyer Allison Brett Schiffman Brian Nathan Wolf Drew Michael Gulley Yuichi Kono Ryan Alexander Muennich Eli Samuel Schlam Alexandra Tortomas Wolfe Marti Haal Mark Suheil Kontopoulos Donnette J. Murphy Michael Charles Schnurr Mark Leonid Wortman Lamine Chukwuma Stacie Ann Kosinski Tomohiko Nakamura Andrew James Scriven Wei-han Wu Hardaway Gillian Ilana Kremen Sara Plesser Neugroschel Angel Sessions Christopher Shea Wynn Elizabeth Joyce Harris Kotlen Dena Nicole Neunzig Nikita Satish Shah Wei Xiang Evan Scott Harris Megan Elizabeth Kraft Xiaohui Niu Arian Shahdadi Tomohisa Yamazaki Matthew Olivier Hart Tamara Marianne Eileen Nicole Nucho Patrick John Shearns Lulu Yan Kamran Farooq Hashmi Veronika Kraljic Richard Mark Nummi Jiangnan Shi Maria Mikhaylovna Daniel Hasler David Loren Krypel Kaitlin Regina O’Donnell Yaru Shi Yarmarkova Kyle Douglas Hawkins Christian Paul Labletta Margarita Kathleen Adam Matthew Ray Yazbek Yuriko Hayakawa Lianne Labossiere O’Donnell Shoemaker Thomas Daniel York Tatiana Hayeuskaya Derek Nolan Lacarrubba Edmond Michael Kate G. Shumaker Catherine Longworth Miao He Tsai-chi Lai O’Hanlon Heather Bryce Siegelheim Young Wei He Andre Phillip Lamorgia Eoghan Patrick O’Hargain Paula Teles Silveira Katsuya Yumoto Preston Hamilton Heard Jordan Elizabeth Lancaster Meghan Charlotte Michelle Seldin Silverman Calvin H. Yung Darlyn P. Heckman Honghua Lao O’Malley Jamila Zowadi Simms Jasmine Zubaidah Zaki Louis Mark Heidelberger Katherine Ruth Largo Loredana G. Pantano Dmitri Smidovich Jack Leslie Zatz Kate Elizabeth Cecilia Inez Lassiter Mihyun Park Rebecca Anne Smirk Eva Michal Zelnick Heinzelman Ernest Tze-yang Law Yongnam Park Rebecca Lynne Sybrowsky Mingya Zhang Julian Isaiah Helisek Jennifer Lee Brett David Parker Spencer Ying Zhao William Matthew Joon Woo Lee Nicole K. Parshall Ariana Bree Stamper- Mingyue Zheng Henneberry Kwok Ting Lee Purvi Chandrakant Patel Gimbar Yidan Zou Dennis Eugene Hermreck Mary C. Lee Sagar J. Patel Jesse David Steele Timour N. Zoubaidoulline Eric James Herrmann David P. Leimgruber Nicholas Blaine Patton Erica Rachel Stein Scott Daniel Zucker Kazutaka Hirose Stefanie Anne Lepore Margaret Elizabeth Peloso Michael Irving Stern Corey Scott Zymet Birte Hoehne Jia Li Leandro Vitale Perucchi John Randall Stith Kelly Marie Hoffman Peter Chin Hui Liao Michael Dylan Peters Benjamin James Sturgell Birte Hohne Mini Lim Albena Petrakov Russell Stuart Stutsky Hiroshi Hori Yu-ju Lin Mihaela Petre Adam Mark Sulewski Mary Elizabeth Houlihan Jasper Yee Liou Anna Petrig Shauna Leighton Sullivan Ya-hui Hsu Lei Liu Bayleigh Jordan Beckett Tarek Sultani Jing Hua Adriana Lombardo Pettigrew Gabrielle Taglienti

NYSBA Journal | June 2010 | 57 THE LEGAL WRITER raise arguments not made in the open- behavior, and they sometimes strike CONTINUED FROM PAGE 64 ing brief.21 Most rules governing reply them with harsh words.30 Dismissing briefs dictate non-repetition,22 and a meritorious argument, one judge Lawyers might not have enough time repeating arguments from the open- wrote, “Having made their bed, defen- to argue their position as adequately ing brief serves no purpose. Rehashed dants will not now be heard to com- as they’d like. A reply brief allows the reply briefs have an effect opposite plain of having to lie in it.”31 Another lawyer to present the oral argument in from the one their authors intend- judge once remarked that “this tactic depth, use the allotted time to respond ed. Lawyers submit rehashed replies on the part of defendants’ counsel to as many of the judges’ questions as thinking that judges are influenced by smacks of sharp practice and I do not possible, and, for complicated points what they read last. Not so. Rereading appreciate it.”32 and citations, to tell the judges, “It’s in the same thing annoys judges, makes Some exceptions exist to the rule my reply brief.” them believe that the lawyer doesn’t against raising new issues on reply. Litigating motions to strike often involves deciding “what constitutes Replies shouldn’t strike back at the a truly ‘new’ substantive [issue or] argument.”33 Nonwaivable issues like opposition’s Rambo-like mudslinging. lack of subject-matter jurisdiction may be raised on reply.34 Citations to non- controlling, or persuasive, authorities Sometimes it’s advantageous not to have a strong case against the other are not new arguments and may be file a reply brief, even when a lawyer side’s arguments, and sways them the presented at any time.35 A controlling can present a strong one. This involves other way.23 case may be brought to the court’s making a judgment call. If the oppos- attention in a reply if it was decided ing side has failed to respond to the Unfair Tactics after the opening brief was filed.36 lawyer’s strongest argument or, worse, Reply briefs shouldn’t include argu- Courts will also take judicial notice of if the opposing brief includes a gross ments and facts not discussed by either new matters, such as matters of public misstatement of law, it might be smart side until that point. Judges look down record, injected into a reply brief.37 “to save this for oral argument so you on this practice, and with good reason. A court will sometimes permit in the do not tip your hand.”16 Good lawyers Because reply briefs are rarely rebutted, interest of justice an issue to be raised prepare for oral argument by reading the fairness with which they’re written on reply, although courts exercise this the other side’s reply brief.17 By not impacts their persuasiveness.24 As one discretion rarely and only in unusual replying, the lawyer who wrote the court wrote in a decision striking a circumstances. opening brief can maintain an element plaintiff’s reply brief, “‘[I]t is estab- Another remedy is available for of surprise. This tactical decision might lished beyond peradventure that it is improper reply briefs: a sur-reply. backfire, though. A judge might not improper to sandbag one’s opponent Sur-replies are rarely permitted as a like a purposeful delay in presenting by raising new matter in reply.’”25 matter of right, however, and filing a strong rebuttal or “may forget or fail Improper reply briefs are often the one requires leave of court on good to listen to your oral argument, or may subject of litigation. The opposing cause.38 give the motion papers to a law clerk party can object to an improper reply not present at oral argument.”18 brief with a motion to strike.26 A court The Structure of an will not review documents attached Effective Reply Lawyers’ Common Mistakes to a reply brief that are not part of One judge has characterized the role Judges who bemoan reply briefs are the record or new issues “to which of the reply brief as follows: “‘Reply annoyed “that too many attorneys the adversary side has no opportu- briefs should be used as a stiletto to commit the sins of either simply regur- nity to respond.”27 It’s unfair to cite skewer misstatements of fact, misquo- gitating what they said in an opening “cases or other authorities that were tations, miscitations, matters not in the brief or attempt to raise new issues for in existence when the appellant’s main record, or grossly erroneous proposi- the first time.”19 Because a reply brief brief was filed, but were not cited in tions of law.’”39 is a final submission to a court, “the either the appellant’s main brief or proper purpose of a reply brief is to the respondent’s answering brief.”28 Brevity and Theme reply.”20 Even meritorious arguments improp- A court might permit over-length briefs erly raised in a reply brief are deemed if asked, although lawyers should still Repetition waived, and judges won’t consider make their replies short. Asking for more Reply briefs should not repeat state- them.29 Judges believe that to consider space “seldom serve[s] their movant’s ments of fact, reargue the case, or these arguments would reward unfair purpose”40 and can be counter-pro-

58 | June 2010 | NYSBA Journal ductive. Lawyers ask for more space Professional Tone 4. Michael A. Pollard, Writers’ Corner, To Enhance Credibility and Persuasion: The Art of the Reply Brief, when they want to write a complex and Replies shouldn’t strike back at the 51 DRI For the Defense 74, 74 (May 2009). 41 detailed reply. That’s the opposite of opposition’s Rambo-like mudslinging. 5. Interview by Bryan Garner with Lord Denning, what a reply brief should be. Judges decide cases on the real issues LawProse, Inc., http://lawprose.org/interviews/ Reply briefs are most effective rather than on ad hominem persecu- judges_lawyers_writers_on_writing.php (follow “Lord Denning (late), Master of the Rolls (London, when they are concise, direct, punchy, tion, which is uncivil and distracts England): On Grasping the Nettle” hyperlink) (last and selective. They should have a from the real issues. Unless it’s neces- visited Apr. 10, 2010). theme that follows the opening briefs sary to correct “mischaracterizations, 6. Aldisert, supra note 1, at § 13.5. and which gives the court a final, new distortions, or baseless criticisms,” 7. McKee, supra note 2. perspective on the central issues. If lawyers should disregard gratuitous 8. Paul J. Killion, Having the Last Word: The several themes are possible, the law- rhetoric and personal attacks.50 Falling Appellate Reply Brief, Certworthy 8, 8 (Fall 1998), available at http://raymondpward.typepad.com/ yer should choose the most compel- into the temptation to attack tit-for-tat files/killion.pdf (last visited Apr. 10, 2010). ling one — the one without which the will portray both sides as having an 9. McKee, supra note 2 (quoting California Justice judge is most likely to rule the wrong equally unprofessional “tone or tactics William Bedsworth). 42 way. Equities should be woven [that] have no place in written advo- 10. McKee, supra note 2. 43 51 into the reply. Judges decide cases cacy.” When a response to a personal 11. Id. according to their best interpretation attack is needed, sometimes a simple 12. See Antonin Scalia & Bryan A. Garner, Making of the law. Their interpretation of the footnote will do.52 If a longer response Your Case: The Art of Persuading Judges 73–74 law will be influenced by an unemo- is necessary, it might be “worthwhile (2008). Among the retro-readers is New York Appellate Division Justice Saxe. See David B. Saxe, tional appeal to justice that explains to include a short, separate section . . . Essay, How We Operate: An Inside Look at the Appellate the policy reasons why the lawyer to address the topic.”53 Division, First Department, N.Y.L.J., May 13, 2009, at should win. The reply is most effective when it 6, col. 4 (“An idiosyncrasy I have, but one which I do not necessarily recommend, is after I read the ignores mudslinging by “focus[ing] on bench memo and the decision of the lower court, I Format the merits”54 “on a global rather than first read the appellant’s reply brief. I find that this New York requires replies to follow individual basis.”55 It should do this procedure of working backwards helps me isolate the most central issues.”). the same format as opening briefs.44 In as directly as possible, using tables, most other states and in most federal charts, bullet points, and visuals to 13. McKee, supra note 2. courts, replies must typically conform make the disagreement with the other 14. Steffen N. Johnson, Writer’s Corner, The Anatomy of an Effective Reply Brief, Certworthy 29, 29 only to the rules for the tables of con- side easy to understand. The idea is to (Summer 2006), available at http://raymondpward. tents and authorities, and a tight page “leave the [judges] feeling that both the typepad.com/newlegalwriter/files/2006Summer. limitation.45 The introduction should law and the equities are on your side pdf (last visited Apr. 10, 2010). draw the judge to the theme right — that the law will make more sense if 15. McKee, supra note 2. away. Lawyers should “avoid a point- you prevail.”56 16. Nina E. Kallen, Winning Your First (or Next) Summary Judgment, http://www.kallenlawyer. 46 counterpoint approach.” They should com/articles/winning.htm (last visited Apr. 10, quote parts of the opposition brief that Conclusion 2010). are the “most susceptible to attack,” As one authority says, “Having the last 17. Pollard, supra note 4, at 74. but only if they can make these attacks word in an argument can make a dif- 18. Kallen, supra note 16. 57 in a persuasive way without repeating ference.” Lawyers should use every 19. McKee, supra note 2. 47 the opening argument. tool available “to exploit the limited 20. Thomas R. Newman & Steven J. Ahmuty Jr., Lawyers should limit what they opportunity afforded by reply briefs” Appellate Practice, Reply Briefs: Not Simply the “Last reply to. They must focus on the gra- to advance or refine their argument.58 Word” in a Case, N.Y.L.J., May 3, 2006, at 3, col. 1. vamen of the opponent’s argument, Lawyers should resist the urge to get 21. Thomas J. Carey, Jr., A Few Tips on Effective Appellate Briefs, 5 Am. Bankr. Inst. 197, 212 (2008). avoid peripheral matters,48 and con- the last word just for the sake of hav- 22. See, e.g., CPLR 5528(c) (New York). centrate on key issues that will rebut ing the last word. But “[i]f properly the opposition’s argument while represented, a reply brief enhances both 23. McKee, supra note 2. emphasizing their own position. The a lawyer’s credibility and the persua- 24. Pollard, supra note 4, at 74. reply need not, and should not, cor- sive force of a client’s arguments.”59 ■ 25. Wolters Kluwer Fin. Svcs. Inc. v. Scivantage, N.Y.L.J., Apr. 18, 2007, at 23, col. 3 (S.D.N.Y. 2007) rect each inaccuracy, explain every (quoting Murphy v. Village of Hoffman Estates, No. 95 point of disagreement, or distin- 1. Ruggero J. Aldisert, Winning on Appeal: Better C 5192, 1999 WL 160305, at *2, 1999 U.S. Dist. LEXIS Briefs and Oral Argument § 13.5 (rev. 1st ed. 1996). guish every case the opponent cited. 3320, at *5 (N.D. Ill. 1999)) (alteration in Wolters). 2. Mike McKee, Are Reply Briefs Really Necessary?, 26. Newman & Ahmuty, supra note 20, at 3, col. 1. Lawyers shouldn’t worry about for- The Recorder, Aug. 1, 2008, available at http://www. mal conclusions. They’re unnecessary. law.com/jsp/law/careercenter/lawArticleCareer- 27. Russel J. Davis et al., Appellate Review, 4 N.Y. Jur. 2d § 371. Lawyers should say what they need Center.jsp?id=1202423420048 (last visited Apr. 10, 2010). and stop.49 28. Newman & Ahmuty, supra note 20, at 3, col. 1. 3. Id. CONTINUED ON PAGE 61

NYSBA Journal | June 2010 | 59 CLASSIFIED NOTICES

OFFICE SPACE AVAILABLE RESPOND TO NOTICES AT: INDEX TO New York State Bar Association Instant Office Space: NY or Newark Plug ADVERTISERS and Play space for lawyers and other One Elk Street Arthur B. Levine Company 21 Albany, NY 12207 professionals at the historic National Attorneys Dell & 60 Attn: Daniel McMahon Newark Building and/or in Tribeca at 305 Broadway, NY; varying sized offices; Schaefer Chartered DEADLINE FOR SUBMISSIONS: spacious workstations; dual NJ and NY Bank of America cover 3 Six weeks prior to the first day presence; reception, multi-line phones, Center for International of the month of publication. t-1 internet, Video Conferencing, custom Legal Studies 60 NONMEMBERS: voicemail; discounted Westlaw rates; vir- Jams/Endispute 7 $175 for 50 words or less; tual offices, too; flexible terms; ideal for Jewish Guild for the Blind 25 “war room” HQ in Newark and NY; plus $1 for each additional word. LAWSUITES.net 60 office facilities in NJ available for as little Boxholder No. assigned— PS Finance cover 2 $75 per insertion. as $450/mo, NY for as little as $500/mo and virtual offices for as little as $300/mo. SpeakWrite 17 MEMBERS: www.lawsuites.net 646-996-6675 [brokers The Company Corporation 60 $135 for 50 words and $1 for protected] USI Affinity 4 each additional word. van Laack GmbH 2 Payment must accompany West, a Thomson Reuters cover 4 insertion orders. NATIONWIDE LONG-TERM DISABILITY INSURANCE Business SEND ADS WITH PAYMENT TO: Wolters Kluwer Law Network Media Partners LAW FIRM & Business 13 Executive Plaza 1, Suite 900 Attorneys Dell & Schaefer – Our 11350 McCormick Road disability income division, managed by Gregory Dell, is comprised of eight attor- Hunt Valley, MD 21031 MEMBERSHIP TOTALS neys that represent claimants through- (410) 584-1960 out all stages (i.e. applications, denials, [email protected] appeals, litigation & buy-outs) of a claim NEW REGULAR MEMBERS for individual or group (ERISA) long- 1/1/10 - 5/7/10 ______4,815 term disability benefits. Mr. Dell is the INCORPORATION SERVICES author of a Westlaw Disability Insurance NEW LAW STUDENT MEMBERS Add business formation services to your Law Treatise. Representing claimants 1/1/10 - 5/7/10 ______415 practice without adding demands on throughout New York & nationwide. TOTAL REGULAR MEMBERS your resources. Referral Fees. 212-691-6900, 800-828-7583, AS OF 5/7/10 ______66,228 Help clients incorporate or form limited www.diAttorney.com, TOTAL LAW STUDENT MEMBERS liability companies with America’s lead- [email protected] ing provider of business formation ser- AS OF 5/7/10 ______2,255 vices. We can also assist in out-of-state TOTAL MEMBERSHIP AS OF qualifications. 5/7/10 ______68,483 Call us today at 800-637-4898 or visit www.incorporate.com to learn more.

LLM IN INTERNATIONAL PRACTICE Degree conferred by Ryszard Lazarski University, Warsaw, Poland, and Center for International Legal Studies, Salzburg, Austria. Two 2-week sessions in Salzburg and one 2-week session in Warsaw over three years. See www.cils.org/Lazarski.htm. Contact CILS, Matzenkopfgasse 19, Salz- burg 5020, Austria, email [email protected], US fax 509-3560077, US tel 970-4601232.

60 | June 2010 | NYSBA Journal THE LEGAL WRITER 47. Pollard, supra note 4, at 74, 80. PRESIDENT’S MESSAGE CONTINUED FROM PAGE 59 48. Id. at 80. CONTINUED FROM PAGE 6 29. Id. 49. Andrew L. Frey & Roy T. Englert, Jr., How to Looking Ahead 30. Michael C. Silberberg, Refusal to Hear Argument Write a Good Appellate Brief, http://www.appellate. Under the leadership of my predeces- First Raised in Reply Brief, N.Y.L.J. May 1, 1997, at 3, net/articles/gdaplbrf799.asp (last visited Apr. 10, sor, Mike Getnick, the State Bar ramped 2010). col. 1. up its resources to help our member- 31. Id. (quoting S.D.N.Y. Judge Kaplan). 50. Frank E. Noyes II, Writers’ Corner, Your Opponent’s Offending Material: Dealing with ship weather the economic downturn. 32. Id. (quoting Polycast Technology Corp. v. Uniroyal, Mudslinging, 1 For the Defense — Judicial Edition As a result of these efforts, the State Bar – Inc., 792 F. Supp. 244, 269 (S.D.N.Y. 1992)). 78, 78 (Feb. 2010). now over 77,000 members strong – 33. Newman & Ahmuty, supra note 20, at 3, col. 1. 51. Id. grew both in number and strength. As 34. Cf. Mark Davies, Perfecting an Appeal to the 52. Id. Appellate Division, 8 N.Y. Prac., Civil Appellate Mike passes the baton, the State Bar is Practice § 12:51 (2008) (noting that “nonwaivable 53. Id. in a very strong position. This is a testa- jurisdictional defect[s] may be raised for the first 54. Id. ment to his leadership and the tremen- time on appeal”). 55. Newman & Ahmuty, supra note 20, at 3, col. 1. dous value of State Bar membership. 35. Newman & Ahmuty, supra note 20, at 3, col. 1. 56. Johnson, supra note 14, at 29. We are grateful to all of you for your 36. Id. 57. Thomas D. Hird, Writer’s Corner, No Reply?, continued support of the Association. 37. Id. Certworthy 40, 40 (Summer 2005), available at http:// We have experienced difficult times, 38. Newman & Ahmuty, supra note 20, at 3, col. home.earthlink.net/~raymondpward/sitebuilder- but we can see a turnaround on the 1. The New York Court of Appeals doesn’t permit content/sitebuilderfiles/Certworthy2005summer. sur-replies. See 22 N.Y.C.R.R. § 500.12(g). But other pdf (last visited Apr. 10, 2010). horizon. As we look ahead and prepare New York appellate courts may grant leave to file a 58. Pollard, supra note 4, at 80. for the next decade, we must recog- sur-reply on good cause. 59. Id. nize the great recession for what it is: 39. Carey, supra note 21, at 212 (quoting Justice a wake-up call for our profession. As Kass). a result, we must take a hard look at 40. Pollard, supra note 4, at 74. ourselves. And we must be prepared to 41. Id. GERALD LEBOVITS is a judge of the New York make changes in how we practice law 42. Johnson, supra note 14, at 29. City Civil Court, Housing Part, in Manhattan to keep it the satisfying profession we 43. Id. at 30. and an adjunct professor at Columbia Law all sought in becoming lawyers. 44. CPLR 5528(c). School and St. John’s University School of There is a better way to practice law. 45. Killion, supra note 8, at 9. Law. He thanks New York Law School student We only need to figure it out – for the Yevgeny Samokhleb for his research help. Judge 46. Andrew H. Baida, Writing a Better Brief: The good of our profession, for our clients Lebovits’s e-mail address is [email protected]. Civil Appeals Style Manual of the Office of the Maryland and for the next generation of law- Attorney General., 3 J. App. Prac. & Process 685, 722 ■ (2001). yers. Follow NYSBA on Twitter MOVING? let us know. visit www.twitter.com/nysba Notify OCA and NYSBA of any changes and click the link to follow us and to your address or other record stay up-to-date on the latest news information as soon as possible! from the Association OCA Attorney Registration PO BOX 2806 Church Street Station New York, New York 10008 TEL 212.428.2800 FAX 212.428.2804 Email [email protected]

New York State Bar Association MIS Department One Elk Street Albany, NY 12207 TEL 518.463.3200 FAX 518.487.5579 Email [email protected]

NYSBA Journal | June 2010 | 61 HEADQUARTERS STAFF EMAIL ADDRESSES THE NEW YORK BAR FOUNDATION

EXECUTIVE PRO BONO AFFAIRS 2010-2011 OFFICERS M. Catherine Richardson, President Patricia K. Bucklin Gloria Herron Arthur, Director One Lincoln Center, Syracuse, NY 13203 Executive Director [email protected] John J. Kenney, Vice President [email protected] MARKETING AND 10 East 40th Street, 35th Fl., New York, NY 10016 Keith J. Soressi INFORMATION SERVICES Patricia K. Bucklin, Secretary Associate Executive Director Richard J. Martin, Senior Director One Elk Street, Albany, NY 12207 [email protected] [email protected] Paul Michael Hassett, Treasurer BAR SERVICES 1500 Liberty Building, Buffalo, NY 14202 DESKTOP PUBLISHING Mark Wilson, Manager Cristine Cioffi, Assistant Secretary [email protected] MARKETING 2310 Nott Street East, Niskayuna, NY 12309 DIRECTORS MEETINGS MIS James B. Ayers, Albany Kathleen M. Heider, Director John M. Nicoletta, Director Vice Chair of The Fellows [email protected] [email protected] Jeffrey Ordon, Network Support Specialist Lawrence R. Bailey, Jr., White Plains CONTINUING LEGAL EDUCATION [email protected] Jonathan G. Blattmachr, New York H. Douglas Guevara, Senior Director Charles E. Dorkey, III, New York Sonja Tompkins, Records Supervisor [email protected] Emily F. Franchina, Garden City [email protected] Debra York, Registrar Sharon Stern Gerstman, Buffalo Lucian Uveges, Database Administrator [email protected] John H. Gross, Hauppauge [email protected] Gregory J. Guercio, Farmingdale CLE PROGRAMS Paul Wos, Data Systems and Robert L. Haig, New York Jean E. Nelson II, Associate Director Telecommunications Manager Frank M. Headley, Jr., Scarsdale [email protected] [email protected] Stephen D. Hoffman, New York Kimberly Hojohn, CLE Program Coordinator WEB SITE John R. Horan, New York [email protected] Barbara Beauchamp, Editor Hon. Barry Kamins, Brooklyn Katherine Suchocki, Staff Attorney [email protected] Henry L. King, New York [email protected] Glenn Lau-Kee, New York Cindy O’Brien, Program Manager MEMBERSHIP SERVICES Kathryn Grant Madigan, Binghamton [email protected] Patricia K. Wood, Senior Director Kay Crawford Murray, New York [email protected] CLE PUBLICATIONS Carla M. Palumbo, Rochester Megan O’Toole, Membership Services Manager Daniel J. McMahon, Director Sharon M. Porcellio, Rochester [email protected] [email protected] Richard Raysman, New York Kirsten Downer, Research Attorney CHIEF SECTION LIAISON Lesley Friedman Rosenthal, New York [email protected] Lisa J. Bataille Sanford J. Schlesinger, New York [email protected] Justin L. Vigdor, Rochester Patricia B. Stockli, Research Attorney Lucia B. Whisenand, Syracuse [email protected] PRINT AND FACILITIES OPERATIONS Joan Fucillo, Publication Manager Roger E. Buchanan, Senior Director EX OFFICIO Susan B. Lindenauer, New York [email protected] [email protected] Chair of The Fellows LAW PRACTICE MANAGEMENT BUILDING MAINTENANCE FINANCE AND HUMAN RESOURCES GRAPHICS Paula M. Doyle, Senior Director PRINT SHOP JOURNAL BOARD [email protected] PUBLIC AFFAIRS AND MEMBERS EMERITI FINANCE ADMINISTRATIVE SERVICES Kristin M. O’Brien, Director Sebrina Barrett, Senior Director HOWARD ANGIONE [email protected] [email protected] Immediate Past Editor-in-Chief Cynthia Gaynor, Controller LAW, YOUTH AND CITIZENSHIP PROGRAM [email protected] Eileen Gerrish, Director ROSE MARY BAILLY [email protected] RICHARD J. BARTLETT LEGAL AND GOVERNMENTAL AFFAIRS COLEMAN BURKE Kathleen R. Mulligan-Baxter, Senior Director MEDIA SERVICES AND PUBLIC AFFAIRS JOHN C. CLARK, III [email protected] Nicholas Parrella, Associate Director ANGELO T. COMETA [email protected] ROGER C. CRAMTON COUNSEL’S OFFICE Patricia Sears Doherty, Editor, State Bar News WILLARD DASILVA LOUIS P. D ILORENZO GOVERNMENTAL RELATIONS [email protected] Ronald F. Kennedy, Director MARYANN SACCOMANDO FREEDMAN Brandon Vogel, Media Writer [email protected] EMLYN I. GRIFFITH [email protected] H. GLEN HALL Kevin M. Kerwin, Assistant Director PAUL S. HOFFMAN [email protected] JUDITH S. KAYE LAWYER ASSISTANCE PROGRAM THE NEW YORK BAR FOUNDATION CHARLES F. KRAUSE Patricia F. Spataro, Director Rosanne M. Van Heertum PHILIP H. MAGNER, JR. [email protected] Director of Development WALLACE J. MCDONALD [email protected] J. EDWARD MEYER, III LAWYER REFERRAL AND KENNETH P. N OLAN INFORMATION SERVICE EUGENE E. PECKHAM Eva Valentin-Espinal, Coordinator ALBERT M. ROSENBLATT [email protected] LESLEY FRIEDMAN ROSENTHAL SANFORD J. SCHLESINGER ROBERT J. SMITH LAWRENCE E. WALSH RICHARD N. WINFIELD

62 | June 2010 | NYSBA Journal 2010-2011 OFFICERS MEMBERS OF THE HOUSE OF DELEGATES

STEPHEN P. Y OUNGER FIRST DISTRICT Doyaga, David J., Sr. Schraver, David M. Aaron, Stewart D. Gerber, Ethan B. Stapleton, T. David, Jr. President Abernethy, Samuel F. Hall, Thomas J. * Vigdor, Justin L. New York Abramowitz, Alton L. Hernandez, David J. * Witmer, G. Robert, Jr. Alcott, Mark H. Kamins, Hon. Barry EIGHTH DISTRICT VINCENT E. DOYLE III Anello, Robert J. Longo, Mark A. Chapman, Richard N. President-Elect Berke-Weiss, Laurie Lonuzzi, John A. Convissar, Robert N. Bohorquez, Fernando A., Jr. McKay, Hon. Joseph Kevin † Doyle, Vincent E., III Buffalo Bransten, Hon. Eileen Park, Maria Y. Edmunds, David L., Jr. Brown, Earamichia Nake Romero, Manuel A. Effman, Norman P. DAVID P. M IRANDA Chambers, Hon. Cheryl E. Sunshine, Hon. Jeffrey S. * Freedman, Maryann Saccomando Secretary Chang, Vincent Ted Sunshine, Hon. Nancy T. Gerstman, Sharon Stern Christian, Catherine A. THIRD DISTRICT Hager, Rita Merino Albany Cohen, Carrie H. Ayers, James B. †* Hassett, Paul Michael Collazo, Ernest J. Barnes, James R. Manias, Giles P. SEYMOUR W. JAMES, JR. * Cometa, Angelo T. Baynes, Brendan F. Schwartz, Scott M. Treasurer Conley, Sylvia Jeanine Costello, Bartley J., III Sconiers, Hon. Rose H. DeMarco, Joseph V. Davidoff, Michael Seitz, Raymond H. New York Di Pietro, Sylvia E. DeFio Kean, Elena NINTH DISTRICT Draper, Thomas G., Jr. Doherty, Glen P. Amoruso, Michael J. MICHAEL E. GETNICK Drayton, Joseph Michael Dumas, Elizabeth M. Ellerin, Hon. Betty Weinberg Burke, Patrick T. Immediate Past President Fernandez, Hermes Burns, Stephanie L. Eppler, Klaus Glasheen, Kevin P. Finerty, Hon. Margaret J. Clemons, Terryl Brown Utica Greenthal, John L. Cohen, Mitchell Y. Finguerra, Dyan M. Hacker, James E. * Forger, Alexander D. Cusano, Gary A. VICE-PRESIDENTS Hanna, John, Jr. Dohn, Robert P. † Fox, Michael L. Hurteau, Daniel Joseph Gallagher, Patrick C. Fontana, Lucille A. FIRST DISTRICT Kaplan, Edward Ian Marwell, John S. Galligan, Michael W. Liebman, Bennett M. Gesinsky, Loren Miklitsch, Catherine M. Claire P. Gutekunst, New York Miranda, David P. * Miller, Henry G. * Gillespie, S. Hazard Moy, Lillian M. Ann B. Lesk, New York Glanstein, Joel C. Nachimson, Steven G. Pechenik, Stephen A. * Ostertag, Robert L. SECOND DISTRICT Goldberg, Evan M. Pettit, Stacy L. Gutekunst, Claire P. Perlman, David B. Privitera, John J. Rauer, Brian Daniel Manuel A. Romero, Brooklyn Gutheil, Karen Fisher Roberts-Ryba, Christina L. Hanks, Kendyl T. Sandford, Donald K. Rosiny, Frank R. Selinger, John HIRD ISTRICT Hawkins, Dennis R. T D Ryan, Rachel Singer, Rhonda K. Hayden, Hon. Douglas J. Salkin, Prof. Patricia E. Lillian M. Moy, Albany Ho, John Si †* Standard, Kenneth G. Schneider, Eric Stone, Robert S. Hoffman, Stephen D. * Yanas, John J. FOURTH DISTRICT Hollyer, A. Rene Strauss, Barbara J. FOURTH DISTRICT Strauss, Hon. Forrest Patricia L. R. Rodriguez, Schenectady Honig, Jonathan James, Hon. Debra A. Baker, Carl T. Van Scoyoc, Carol L. Fernandez, Henry A. Wallach, Sherry Levin FIFTH DISTRICT Kahn, Michele Kanter, Gregg Herbert Healey, Andrew J. TENTH DISTRICT Thomas E. Myers, Syracuse Kaplan, Matthew E. Herrmann, Diane M. Asarch, Hon. Joel K. Kennedy, Henry J. Hoag, Rosemary T. Block, Justin M. SIXTH DISTRICT Kera, Martin S. Ladouceur, Michelle H. * Bracken, John P. * King, Henry L. Lais, Kara I. Chase, Dennis R. Mark S. Gorgos, Binghamton Kobak, James B., Jr. Martin, Trinidad Fishberg, Gerard McAuliffe, J. Gerard, Jr. Franchina, Emily F. SEVENTH DISTRICT * Krane, Steven C. Larson, Wallace L., Jr. McNamara, Matthew Hawthorne Gann, Marc June M. Castellano, Rochester Lau-Kee, Glenn Onderdonk, Marne L. Good, Douglas J. †* Leber, Bernice K. Rodriguez, Patricia L. R. Gruer, Sharon Kovacs EIGHTH DISTRICT Lesk, Ann B. Slezak, Rebecca A. Hendry, Melanie Dyani Levy, M. Barry Stanclift, Tucker C. Karabatos, Elena David L. Edmunds, Jr., Buffalo Lieberman, Ellen FIFTH DISTRICT Karson, Scott M. Lindenauer, Susan B. Fennell, Timothy J. †* Levin, A. Thomas NINTH DISTRICT Lupkin, Jonathan D. Fish, Marion Hancock Makofsky, Ellen G. John S. Marwell, Mount Kisco * MacCrate, Robert Foley, Timothy D. McEntee, John P. Marino, Thomas V. Gensini, Gioia A. Pachman, Matthew E. TENTH DISTRICT Medenica, Olivera †* Getnick, Michael E. * Pruzansky, Joshua M. Miller, David S. Gigliotti, Hon. Louis P. Randazzo, Sheryl L. Emily F. Franchina, Garden City Miller, Michael Gingold, Neil M. * Rice, Thomas O. Millett, Eileen D. Howe, David S. Shulman, Arthur E. ELEVENTH DISTRICT Minkowitz, Martin Humphrey, Mary R. ELEVENTH DISTRICT David Louis Cohen, Kew Gardens Morril, Mark C. Ludington, Hon. Spencer J. Cohen, David Louis Morton, Margaret S. McArdle, Kevin M. DeFelice, Joseph F. Myers, Thomas E. TWELFTH DISTRICT Moses, Barbara Carol Gutierrez, Richard M. Nathanson, Malvina Pellow, David M. James, Seymour W., Jr. Steven E. Millon, Bronx Nelson, Lester * Richardson, M. Catherine Lee, Chan-Woo Nijenhuis, Erika W. Stanislaus-Fung, Karen Nizin, Leslie S. THIRTEENTH DISTRICT * Patterson, Hon. Robert P., Jr. Tsan, Clifford Gee-Tong Risi, Joseph J. Prowda, Judith B. Virkler, Timothy L. Taylor, Zenith T. Jonathan B. Behrins, Staten Island Robertson, Edwin David SIXTH DISTRICT Vitacco, Guy R., Jr. Rothstein, Alan Barreiro, Alyssa M. Walsh, Jean T. Russell, William T., Jr. MEMBERS-AT-LARGE OF THE Denton, Christopher TWELFTH DISTRICT Safer, Jay G. Fortino, Philip G. Masley, Hon. Andrea EXECUTIVE COMMITTEE Schindel, Ronnie Gorgos, Mark S. Millon, Steven E. Sen, Diana Sagorika Grayson, Gary J. * Pfeifer, Maxwell S. Samuel F. Abernethy Seymour, Samuel W. Gutenberger, Kristin E. Price, Hon. Richard Lee Timothy J. Fennell * Seymour, Whitney North, Jr. Lewis, Richard C. Quaranta, Kevin J. Sigmond, Carol Ann †* Madigan, Kathryn Grant Sands, Jonathan D. Hermes Fernandez Silkenat, James R. Mayer, Rosanne Summer, Robert S. Smith, Hon. George Bundy Pogson, Christopher A. Weinberger, Richard Hon. Margaret J. Finerty Sonberg, Hon. Michael R. Sienko, Leonard E., Jr. Spiro, Edward M. THIRTEENTH DISTRICT Glenn Lau-Kee SEVENTH DISTRICT Behrins, Jonathan B. Syracuse, Dana V. Burke, Philip L. Syracuse, Vincent J. Mattei, Grace Virginia Ellen G. Makofsky †* Buzard, A. Vincent Sieghardt, George A. Tesser, Lewis F. Castellano, June M. OUT-OF-STATE Eileen D. Millett, Wolff, Adam John Gould, Wendy L. * Fales, Haliburton, II Yates, Hon. James A. Harren, Michael T. Sherry Levin Wallach Kurs, Michael A. Yavinsky, Hon. Michael J. Hetherington, Bryan D. Torrey, Claudia O. † Younger, Stephen P. Jackson, La Marr J. * Walsh, Lawrence E. Zuchlewski, Pearl Kingsley, Linda S. Weinstock, David S. Zulack, John F. Kurland, Harold A. SECOND DISTRICT Laluk, Susan Schultz Adler, Roger B. * Moore, James C. Bonina, Andrea E. * Palermo, Anthony R. Dollard, James A.

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

NYSBA Journal | June 2010 | 63 THE LEGAL WRITER BY GERALD LEBOVITS

Or Forever Hold Your Peace: Reply Briefs

ew lawyers can resist having ately save for the reply its response to of the controversy and avoid consid- the last word. Nor should they. an argument.”6 ering irrelevant, academic, conceded, FReply briefs are optional, but or unopposed issues. To retro-readers, lawyers should always reply unless Show Confidence the reply brief is the instrument that they’ve nothing important to add, Lawyers who’ve grasped the nettle forms the first perception of the case, they’re certain of victory, they don’t should still reply. It’s poor advocacy a perception against which they weigh want to tip their hand for oral argu- to leave the opposing side’s analysis everything they read and hear after- ment, or they can’t do so because of of an argument as the last word. Not ward. It’s no surprise, then, that some timing or financial constraints. True: replying implies that the lawyer’s case call reply briefs “the mother’s milk of “Reply briefs are not the favorite chil- is weak.7 It shows a lack of confidence, appellate advocacy.”13 dren of appellate judges.”1 But that’s not an abundance of confidence. Even A reply brief is equally important mostly because they’re often done so if the lawyer believes that the oppos- when it’s read last, as it most often is. poorly that they’re a waste of time, ing brief is weak, the judges might An opposition brief might “have mud- money, and paper.2 If done right, reply disagree. Judges might see a lack of a died the waters with extraneous mate- briefs are “very useful” and “an inte- reply brief as a concession to the oppo- rial” and diverted the judges’ attention gral and indispensable part of the sition’s argument.8 As one judge put it, from the strongest parts of the open- courts’ record.”3 The problem is that “‘Why in the world . . . would you ever ing brief’s argument.14 The reply brief many replies “fail to promote their want to give your opponent the last becomes the lawyer’s opportunity to proper, limited objective.”4 If they’re word before oral argument?’”9 refocus the judges on the lawyer’s done well, replies can determine a theory of the case. motion on an appeal. Narrow the Issues Replies help lawyers and judges nar- The Usefulness of Replying row issues and refine arguments. Lawyers should Lawyers should address weaknesses Issues might be conceded and argu- preemptively — and grasp the net- ments changed as the parties write address weaknesses tle5 — by rebutting their opponent’s their briefs. Reply briefs “confront the preemptively — arguments in their opening papers. true strength” of the opponent’s argu- Grasping the nettle assures that judgment and are where a party often and grasp the nettle. es who might not read a reply will “attempt[s] to answer, for the first time, nonetheless consider the counterargu- the most difficult arguments against ments. Counterarguments in the open- her position.”10 Strategy ing brief will also define in advance There’s no reason for judges to A good reply is especially important how the judges will frame the issues devote “time struggling with some- when no oral argument is heard. Given and compel the opponent to respond thing in [an] appellant’s brief, only to the ever-increasing caseloads of both or concede. Counterarguments in the find [that the] respondent concedes it lawyers and judges, fewer oral argu- opening brief will make the lawyer or attacks it on a completely different ments are heard today than in the writing the opening brief anticipate basis than the one anticipated by the past. Replying is “the appellant’s last contrary arguments and thus improve appellant.”11 That’s why some judg- attempt to show why — notwithstand- the opening arguments. And the es review cases by reading the reply ing what the respondent says — the opposing side might consider a more brief first and working backward — appellant should win.”15 Even when favorable settlement if the cards are on a practice called retro-reading.12 By oral argument on a motion or an the table. As one authority explained, reading in reverse, retro-reading appeal takes place, it’s limited in time. “An appellant should never deliber- judges immediately assess the heart CONTINUED ON PAGE 58

64 | June 2010 | NYSBA Journal

Periodicals

ADDRESS CHANGE – Send To: Records Department NYS Bar Association One Elk Street Albany, NY 12207 (800) 582-2452 e-mail: [email protected]