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