The Modernized, Streamlined Contract

OCTOBER 2009 VOL. 81 | NO. 8 JournalNEW YORK STATE BAR ASSOCIATION

Electronic Contracts Also in this Issue and Signatures – Redux E-Discovery Why Arbitrate? by Bran Noonan Navigating in PowerPoint 866-FUNDS- NOW

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October 2009

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EUGENE C. GERHART (1912 – 2007) Editor-in-Chief, 1961–1998 CONTENTS OCTOBER 2009

20 Why Arbitrate? The Benefits and Savings BY EDNA SUSSMAN

DEPARTMENTS 5 President’s Message 8 CLE Seminar Schedule 18 Burden of Proof BY DAVID PAUL HOROWITZ 26 Planning Ahead BY ILENE S. COOPER AND ROBERT M. HARPER 30 Point of View BY BRADLEY D. KAY 36 Arbitration BY PAUL BENNETT MARROW THE MODERNIZED, 40 Presentation Skills for Lawyers BY ROBERT LANE AND BRUCE A. OLSON STREAMLINED 44 E-Discovery CONTRACT BY STEVEN C. BENNETT 48 Attorney Professionalism Forum Electronic Contracts and 53 Language Tips BY GERTRUDE BLOCK Signatures – Redux 54 New Members Welcomed BY BRAN NOONAN 60 Classified Notices 60 Index to Advertisers 10 63 2009–2010 Officers 64 The Legal Writer BY GERALD LEBOVITS

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 © 2009 by the New York State Bar Association. The Journal ((ISSN 1529-3769 (print), ISSN 1934-2020 (online)), official publication of the New York State Bar Association, One Elk Street, Albany, NY 12207, is issued nine times each year, as follows: January, February, March/April, May, June, July/ August, September, October, November/December. Single copies $20. Periodical postage paid at Albany, NY and additional mailing offices. POSTMASTER: Send address changes per USPS edict to: One Elk Street, Albany, NY 12207.

NYSBA Journal | October 2009 | 3

PRESIDENT’S MESSAGE MICHAEL E. GETNICK

Social Media: The Good, the Bad and the Ugly

or law firms promoting their speak. When in doubt, don’t say any- practices and attorneys selling thing. Remember that anything you Ftheir skills, social media sites like post should be considered permanent LinkedIn, Facebook and Twitter can be and searchable; it can be copied, pasted essential tools. In fact, our Lawyers in and e-mailed to a wide audience. Transition Committee recently spon- Attorneys using social media sored a free Webinar on the benefits of also can run afoul of the Rules of social networking in the down econo- Professional Conduct. Anecdotally, I my.1 The “good”: In a time where we have heard of instances where attor- are all concerned about the bottom neys were communicating with their line, social media can be an attractive clients through Facebook, and these requirement of posting a disclaimer. I marketing tool due to its relatively posts were ultimately read by oppos- am certain that the use of social media low cost. Social media can open many ing counsel. Rule 1.6 provides that implicates other Rules, but I do not doors for your practice, but there can “[a] lawyer shall not knowingly reveal have the space to note them all in this also be the opposite result. confidential information” without the column. A judge shared with me a story of client’s informed consent. There is no It’s worth noting that a client’s use one attorney in a case before her who expectation of privacy on Facebook, of social media can also pose problems. claimed her inability to appear in court and attorney-client communications I recommend counseling clients against was due to a death in the family. The on networking sites such as Facebook discussing their cases with friends and attorney’s Facebook page told another certainly are at risk for revealing privi- relatives through social media. If your story. Rather than meeting her profes- leged or confidential information. clients are active on social media, it sional obligations, the attorney had Other Rules come to mind. Per Rule may be a good idea to read what spent the week drinking and party- 3.3, a lawyer appearing before a tri- they are posting. Electronic postings ing, and then shared her escapades bunal cannot “engage in undignified are increasingly becoming evidence in online. This extreme example of social or discourteous conduct” or conduct divorce and child custody matters.2 In media exposing misconduct certainly “intended to disrupt the tribunal.” one case, a mother’s posting that she falls into the “bad” category. But there So, avoid tweeting in court, and be was single and had no children was are other, more subtle, ways to get in careful that your communications do used against her to indicate her lack trouble online. not disparage the judge or opposing of honesty.3 Lawyers also are using Although the law in this area is counsel. Rule 3.6 covers trial public- social networking sites as evidence new, it is rapidly growing. I have heard ity and provides that lawyers shall in personal injury actions. In one sce- that persons posting allegedly defama- not make an extrajudicial statement nario, a client litigating a personal tory statements on Twitter about topics that will be disseminated by means of injury action, wherein he claimed that ranging from apartments to clothing public communication – which argu- injuries prevented him from having an are finding themselves named defen- ably includes blogs, Twitter, Facebook active social life, posted information dants in libel suits. Status updates on and the like – that could materially on Facebook indicating that he hosted Facebook and Twitter are supposedly prejudice an adjudicative proceeding parties and attended weekend outings intended to be real-time reports on in the matter. In addition, the rules at summer cabins.4 At the very least what you are thinking, feeling and related to advertising and testimonials that’s “ugly.” doing. However, publishing a negative also come into play. While LinkedIn is Finally, those in law school and not statement without first contemplating a credible, professional networking site yet admitted to the bar should be espe- the consequences could get you into and a great way to increase your client serious trouble. Even with something base, to be safe, I suggest testimonials as modern as social media, the old posted on your profile by your clients MICHAEL E. GETNICK can be reached at adage remains true: Think before you should follow Rule 7.1 – including the [email protected].

NYSBA Journal | October 2009 | 5 PRESIDENT’S MESSAGE cially careful about what items they Bar has more than 20 blogs written by a pitfalls, especially for lawyers. The post – and also what their friends post diverse group – from solo practitioners wise practitioner will learn to balance about them. Pictures, video and even to a struggling law school graduate privacy and confidentiality if seeking words can all come back to haunt to experts in various fields of law. A to maintain a robust professional pres- you during your character and fitness wealth of information is available to ence online. ■ evaluation. And, the content remains you at www.nysba.org/blogs. You can out there, waiting for would-be follow us on Twitter at www.twitter. 1. This and the other valuable Lawyers in Transition programs are free to download at www. employers to discover. Recent gradu- com/nysba, where we often post our nysba.org/lawyersintransition. ates are having enough difficulty in press releases and other news items. 2. See http://lawprofessors.typepad.com/family the current job market. Be careful that We also have a growing following on _law/2009/06/facebook-divorce.html (last visited your social media activity does not LinkedIn. Join our group of nearly Aug. 31, 2009). create a black cloud over your record 1,000 individuals at www.nysba.org/ 3. See Belinda Luscombe, Facebook and Divorce: Airing the Dirty Laundry, Time, June 22, 2009 avail- of achievements. LinkedIn, where you will find discus- able at http://www.time.com/time/magazine/ Cautions aside, it is no surprise sions, news and job postings. article/0,9171,1904147,00.html (last visited Aug. 31, that more and more attorneys and law Social media can be a wonderful 2009). firms are using social media, which marketing tool for attorneys who take 4. See http://www.cbc.ca/canada/newfoundland- labrador/story/2009/05/11/facebook-lawsuit- provide an easy and efficient way for the time to learn how to use it effec- cp-511.html (last visited Aug. 31, 2009). us to stay connected to each other and tively. Like any other form of com- to cutting-edge information. The State munication, social media can have

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6 | October 2009 | NYSBA Journal

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No Fault – What You Need to Know in New York Handling Tough Issues in a Plaintiff’s Personal October 14 Long Island Injury Case November 5 Rochester Public Utility Law November 13 Buffalo; New York City October 16 Albany November 20 Albany; Long Island Medical Malpractice New York Appellate Practice October 16 Syracuse November 5 Long Island November 4 Long Island November 13 Westchester November 6 Buffalo December 3 New York City November 18 Rochester November 19 Albany; New York City Henry Miller – The Trial November 6 Albany Practical Skills: Intro to Estate Planning October 19 New York City Protecting Your Practice – Risk Management for October 20 Albany; Buffalo; Long Island; the Solo and Small Firm Rochester; Syracuse; Westchester (1:00 pm – 5:00 pm) November 9 Albany Update – 2009 (live program) November 16 Long Island October 23 Syracuse November 18 Buffalo; New York City October 30 New York City Practical Skills: Purchases and Sales of Homes Practicing Matrimonial and Family Law November 10 Albany; Buffalo; Long Island; in Chaotic Economic Times New York City; Rochester; (9:00 am – 12:45 pm) Syracuse; Westchester October 23 Buffalo November 6 Long Island Securities Arbitration November 20 Syracuse November 12 New York City December 4 Albany December 11 New York City Ethics and Professionalism (9:00 am – 12:35 pm) Limited Liability Companies November 12 New York City (9:00 am – 1:00 pm) November 13 Albany; Syracuse October 27 Westchester November 17 Long Island December 1 New York City November 20 Westchester December 2 Albany December 1 Buffalo December 4 Buffalo December 8 Rochester Using PowerPoint at Trial †Update – 2009 (video replays) November 4 New York City November 13 Albany; Rochester November 18 Binghamton Representing Licensed Professionals November 19 Ithaca; Long Island; Saratoga (9:00 am – 1:00 pm) November 20 Canton; Utica; Watertown November 5 New York City December 2 Buffalo; Suffern November 12 Albany December 3 Plattsburgh November 19 Syracuse December 4 Jamestown; Poughkeepsie December 3 Long Island December 10 Corning; Westchester December 11 Loch Sheldrake Foreclosure and Other Receiverships (half-day program) November 13 New York City (1:00 pm – 3:45 pm) November 20 Rochester (9:00 am – 11:45 am)

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Electronic Contracts and Signatures – Redux

By Bran Noonan BRAN NOONAN ([email protected]) is a senior associate at Martin Clearwater & Bell LLP. He earned his law degree from New York Law School and his undergraduate degree from the University of Arizona.

s with everything else in the digital age, the in Law: New Frontiers in Property and Contract.”2 The hallowed handwritten and signed document is author warned that the rapidly expanding digital world Abeing reduced to relic status. Today, transact- would present new legal challenges as electronic trans- ing electronically has become the norm rather than the actions began to replace those executed on paper. As a exception. Nearly any type of contract can be drafted and result, the author urged legislatures and courts to reex- executed electronically. Scores of legal documents, such amine and adapt the law to the broadening electronic as tax forms and trademark applications, are completed, form. Consumers and businesses would need laws to signed, and submitted electronically. Checks are gradu- instill confidence in the integrity and validity of the ally becoming a thing of the past as more and more insti- electronic medium. Four years later, in 2000, the Journal tutions accept automatic account withdrawal programs. published “Wide Use of Electronic Signatures Awaits Even parking tickets, once known for their illegibility, are Market Decisions About Their Risks and Benefits,” which no longer handwritten. explored the potential effects of the then newly passed The electronic medium, at a minimum, expedites federal electronic signatures legislation on transactions.3 and modernizes commercial and business transac- This article addresses how the law has responded and tions, allowing parties to enter into them instantly progressed since those articles, focusing specifically on and effortlessly. Consider a magazine publishing com- the validity and construction of e-contracts. pany that, for example, must enter into work-for-hire For all intents and purposes, electronic contracts agreements with freelance writers on a monthly basis. are equal to their handwritten paper brethren. Current The electronic medium allows each party to negotiate federal and New York State statutes and common law terms and execute the agreement from the comfort of purportedly permit parties to execute a wide range of their own offices. Neither side has to expend time or contracts and transactions electronically and to utilize money meeting in person or waiting for documents to electronic signatures to indicate mutual and valid con- arrive by mail. And by simplifying and streamlining sent. At the end of the day, courts primarily concentrate the editing and review process, the electronic medium on whether or not an e-contract is properly constructed, improves the quality of a document and by extension rather than on the validity of the medium itself. The the transaction itself. design of an e-contract raises unique issues, such as the Since the emergence of the Internet, the New York effect of hyperlinks in contracts, which are absent from State Bar Association Journal has published two note- paper contracts. Interestingly, courts look to traditional worthy articles on the subject of electronic transactions.1 contract law principles, such as sufficient notice of In June 1996, the Journal published “Information Age terms, to resolve design and construction concerns.

NYSBA Journal | October 2009 | 11 substantial economic effect on interstate commerce even when viewed in the aggregate. In Morrison, the Court invalidated the Violence Against Women Act for similar reasons. Declining to resolve the constitutional question, the McFarlan court, instead, merely contemplated how far Congress could actually step beyond the limits of the Commerce Clause in an effort to provide a better, uniform nationwide rule. At any rate, the U.S. Supreme Court’s 2005 decision in Gonzales v. Raich10 may have rendered this issue moot. There, appearing to distance itself from Lopez and Morrison, the Court upheld the validity of the Controlled Substance Act under the Commerce Clause insofar as it prohibited the intrastate manufacture and possession of marijuana. The trial court in McFarlan also suggested that the U.S. Supreme Court’s decision in Printz v. United States11 raised a second constitutional problem with E-Sign. In The Federal E-Sign Law Printz, the Court held unconstitutional provisions in the Congress adopted the Electronic Signatures in Global Brady Handgun Violence Prevention Act that required and National Commerce Act, commonly referred to as states to conduct background checks before allowing gun “E-Sign,” on June 30, 2000. Section 7001, title 15 of the purchases. According to the Court, the federal govern- U.S. Code states in pertinent part that ment is prohibited from commandeering state processes with respect to any transaction in or affecting interstate or bodies to achieve federal purposes. In McFarlan, the or foreign commerce: 1) a signature, contract, or other state court considered E-Sign’s applicability to a second record relating to such transaction may not be denied police printout of computer-generated photos of the legal effect, validity, or enforceability solely because it defendant. According to the court, E-Sign “expressly is in electronic form; and 2) a contract relating to such preempts state law” with respect to all records kept by transaction may not be denied legal effect, validity, or state or local agencies.12 While E-Sign presumably would enforceability solely because an electronic signature or not cover the police record, however, because it did not 4 electronic record was used in its formation. arise out of a commercial transaction,13 the court argued, A transaction under E-Sign consists of “an action or set somewhat cryptically, that a rule imposed upon a state of actions relating to the conduct of business, consumer, that regulates only those records used in commerce “is in or commercial affairs between two or more persons.”5 the real world a rule imposing the [statute] on such state’s Section 7003 does, however, exclude certain transactions records for all purposes.”14 The court dismissed the idea from its coverage, namely, those traditionally governed that a state statute regulating non-transactional govern- by state law, such as insurance polices, rental agreements, ment records might coexist with E-Sign, concluding that and Uniform Commercial Code (UCC) transactions. a federal rule that regulates all state records “may well Federal courts have never addressed the constitu- constitute a violation of the rule against commandeering tionality of E-Sign. While the act covers “any transaction the activities of a state to achieve a federal purpose.”15 in or affecting interstate or foreign commerce,”6 it does Putting aside whether the analysis flows logically, this not explicitly indicate which types of intrastate transac- conclusion is a rather expansive interpretation of Printz. tions are “in” or will “affect” interstate commerce and Accepting the validity of an e-record is unlikely the type come under the purview of the act. Since its adoption, of hijacked processes the U.S. Supreme Court envisioned one state court has raised doubts about the legitimacy in Printz. Nevertheless, no published case has ever cited of the act. In People v. McFarlan,7 a New York state trial McFarlan or questioned the constitutionality of E-Sign. court questioned whether or not Congress, in its attempt The implication is, at the very least, that the act has been to give E-Sign the broadest scope constitutionally pos- widely accepted. A constitutional challenge would in fact sible, would find the statute under judicial scrutiny in be surprising because the functional benefit of the statute light of the U.S. Supreme Court’s decisions in United presumably outweighs any constitutional violation. States v. Lopez8 and United States v. Morrision,9 where the Despite McFarlan’s red flags, federal courts have Court sought to limit, if not roll back, Congress’s power utilized E-Sign on a handful of occasions, limiting their under the Commerce Clause. In Lopez, the Court held discussion to stating that E-Sign had settled the question that the Gun-Free School Zones Act exceeded the scope of whether or not electronic agreements and signatures of Congress’s authority under the Commerce Clause were valid and enforceable. For example, in the 2003 because the subject matter of the act did not have a action Medical Self Care, Inc. v. National Broadcasting Co.,

12 | October 2009 | NYSBA Journal the Southern District of New York addressed whether an e-mail should be considered a writing for the purpose of enforcing a “written consent” clause in a contract.16 The court invoked E-Sign, holding that “the decision not to consider an e-mail a writing is arguably foreclosed by 15 U.S.C. section 7001.”17 The next year in On Line Power Technologies, Inc. v. Square D Co.,18 the Southern District of New York examined whether e-mails created a valid purchase agreement. The plaintiff allegedly entered into agreements with the defendant over multiple e-mails, which stated only the price, order number, and name of the sender. The court held that since “federal statutes governing electronic signatures recognize the validity and enforceability of electronic signatures,” the parties “did enter into valid new agreements.”19 Finally, a year later, Campbell v. General Dynamics20 concerned an employer that sent its employees a mass e-mail requiring them to pursue arbitration of an American with Disabilities Act grievance. In determining the validity of the arbitration e-mail agreement under the Federal Arbitration Act, the First Circuit held that E-Sign “prohibits any interpretation of the FAA’s ‘written provision’ requirement that would preclude giving legal effect to an agreement solely on the basis that it was in electronic form.”21 Notwithstanding the lack of commentary, the case law, including that from other circuits, summarily confirms that E-Sign furnishes electronic agreements with the same authority as their paper counterparts.22 Interestingly, a narrow area of contention focuses on whether or not one party is obligated to accept electronic agreements under E-Sign, especially where the other party insists on it. The issue arises out of two provisions in 15 U.S.C. § 7001. On the one hand, § 7001(a) mandates that an electronic record may not be denied legal effect. Yet, on the other hand, § 7001(b)(2) states that persons are not statutorily required “to agree to use or accept electronic records or electronic signatures,” presumably over- riding the foregoing section. The sections lead to contrary interpretations: an electronic record will be automatically either denied legal effect if one party refuses to accept it or given legal effect if one party decides to use it. Only two courts have actually addressed this issue, both favoring subsection (b)(2) over the preceding subsection. In Prudential Insurance Co. v. Prusky,23 a 2005 action arising out of the Eastern District of Pennsylvania, the defendant cross-claimed, alleging that the plaintiff violated E-Sign for refusing to accept his electronic requests to transfer monies to other investment funds. Shortly after, a New York state trial court addressed the issue in DWP Pain Free Medical PC v. Progressive Northeastern Insurance.24 In that case, the defendant argued that the plaintiff’s no- fault action was premature because the medical provider submitted claim forms electronically without permission. The plaintiff replied that E-Sign required the defendant to accept the forms because E-Sign gave them the same

NYSBA Journal | October 2009 | 13 validity and effect as the handwritten form. Without statutes exist, and the state statute is technology neutral. explanation, both courts held that subsection (b)(2) per- Actually, ESRA preceded E-Sign, and, therefore, does mitted the parties to reject the electronic transmissions. not refer back to the federal law. Regardless, in the end, Under that approach, subsection (a) apparently would the trial court evaded the issue altogether and actually govern when parties explicitly agree to use electronic rendered it moot, concluding that under either ESRA or means but, absent an agreement, neither party would be E-Sign the result would be the same. While no other court obligated to transact electronically. The result potentially has ever addressed this issue, the chance that a court burdens parties who intend to use electronic means by will invalidate ESRA on preemption grounds appears requiring them to obtain the other party’s consent. This remote. could lead to inequitable outcomes for individuals unso- With respect to the substance of the statute, ESRA has phisticated in the law. For instance, a consumer accus- received even less attention than E-Sign. While the stat- tomed to transacting electronically might not expect this ute authorizes the use of electronic signatures, records, statutory limitation and might be left empty-handed for and contracts,30 New York state courts have limited their failing to confirm whether a business accepts electronic review to the validity of electronic records, as opposed to transactions, which is what happened to the individual contracts. In April 2002, McFarlan became the first pub- investor in Prusky.25 lished case to raise ESRA, accepting the validity of computer-generated photos of the defendant under the state The New York State ESRA Law and federal technology statutes. Just weeks afterward, In 1999, the New York State Legislature passed the in D’Arrigo v. Alitalia,31 a New York civil court decided Electronic Signatures and Records Act (ESRA).26 Section whether or not an airline passenger’s electronically filed 304 states in pertinent part: “An electronic signature lost luggage complaint constituted a “writing” under the may be used by a person in lieu of a signature affixed Warsaw Convention, which required complaints to be in by hand,” and it shall have “the same validity and effect writing. The civil court cited a variety of legal and non- as the use of a signature affixed by hand.” Section 305 legal sources, including ESRA, to hold that the computer- adds that an “electronic record shall have the same force generated complaint constituted a “writing.” and effect as those records not produced by electronic The only other cases to utilize ESRA have done so means.” The Legislature enacted ESRA to ensure that in connection with electronic traffic tickets. Decided in “persons who voluntarily elect to use electronic signa- 2005, People v. Rose involved a defendant who moved to tures or electronic records can do so with confidence that dismiss her DWI charge on the ground that the computer- they carry the same force and effect as nonelectronic sig- generated ticket was invalid.32 The Rochester city court natures and records.”27 Similar to E-Sign, the statute does acknowledged that ESRA was designed primarily for not, however, explicitly obligate “any entity or person to “commercial and public record applications rather than use an electronic record or an electronic signature.”28 law enforcement use,” but that “the decision to substitute As with the constitutionality of E-Sign, People v. e-tickets for the often illegible multiple copy Uniform McFarlan is again the lone court to create a potential Traffic Tickets was an appropriate and logical extension controversy – this time, the issue of preemption. E-Sign within the purview of ESRA.”33 expressly preempts contrary state law except for a nar- The city court, however, objected to the e-ticket sys- row field. Specifically, a state electronic record and sig- tem insofar as it functioned in a manner that violated the nature statute survives if (1) the state enacts the Uniform verification requirement under the Criminal Procedure Electronic Transactions Act (UETA) as approved and Law. Officers would input information into the computer adopted for enactment by the National Conference of system and then print the e-ticket. Yet the software was Commissioners on Uniform State Laws; or (2) if the state designed so that the officer “signed” the e-ticket before enacts a law that is (a) consistent with §§ 7001 and 7002 of actually entering any information on the ticket. That E-Sign, (b) technologically neutral, and (c) if enacted after would be akin to parties signing a blank paper before E-Sign, makes specific reference to E-Sign. filling in the terms of agreement. Verification, as with In deciding the defendant’s motion to exclude the consent, needed to follow the input of information. The prosecution’s second printout of computer-generated court, nevertheless, found that the officer’s signed depo- photos of the defendant, the McFarlan court affirmed that sition revived his ill-timed electronic verification. “ESRA is not the same as, a clone of, or even similar to A few years later, a Rensselaer County justice court UETA,”29 failing the first preemption exception under faced with the same verification issue took an alterna- E-Sign. Then, presumably with respect to E-Sign’s second tive approach. In People v. Patanian, the justice court preemption exception, the court resolved that the scope agreed with the defendant that the state could not cure of E-Sign “purports to preempt ESRA in accordance a defective e-ticket with deposition testimony.34 The with [its] own terms.” The basis for this conclusion is left court, instead, held that the officer’s actions verified the unexplained. No glaring inconsistencies between the two electronic document. Since the officer himself printed

14 | October 2009 | NYSBA Journal and served the ticket bearing his electronic signature, the terms and sufficiently consented. Similarly, in Barnett v. “the need for a prompt or additional button formally Network Solutions,42 the plaintiff entered into an electronic affirming the uniform traffic ticket seems redundant in contract with the defendant to register domain names. nature.”35 The court pointed out that “[n]o language The Texas state appellate court focused on whether the under [ESRA] exists specific to any timing of the signa- plaintiff had notice of the forum selection clause, uphold- ture.”36 The central caveat, therefore, became the design ing the contract because it clearly presented the clause and rather than the validity of the electronic form. required the plaintiff to scroll past it prior to consenting. A controversial e-contract design issue has been the New York State and Federal Common Law effect of hyperlinks in Web site license agreements. In In the event that E-Sign or ESRA are declared unconstitu- Pollstar v. Gigmania,43 an Internet browser could down- tional, repealed, ignored, or inapplicable for any reason, load concert information from the plaintiff’s Web site New York state and federal courts will likely continue to pursuant to the conditions of a license agreement that the permit the use of electronic contracts and signatures, as user accessed by clicking a hyperlink. The catch was that The catch was that users could consent and proceed without ever linking to view the agreement, which is commonly referred to as a Browse-wrap agreement. long as the contracts are properly constructed. Since the users could consent and proceed without ever linking to case law on electronic contracts is sparse, jurisdictions view the agreement, which is commonly referred to as have yet to develop their own comprehensive precedent a Browse-wrap agreement. In deciding the defendant’s on the subject. Federal and state courts look, instead, to motion to dismiss, the Eastern District of California held the small group of cases that have emerged in jurisdic- that while the license agreement was buried in the Web tions nationwide for guidance.37 site, potentially impairing the parties’ mutual consent, Most of the litigation has focused on Web site agree- the agreement was not invalid as a matter of law. Two ments, where a few federal and state courts have express- years after Pollstar, the Second Circuit explicitly rejected ly held that such agreements constitute a valid writing the browse-wrap design altogether in Specht v. Netscape which parties may execute and accept electronically. See, Communications Corp. because it failed to provide ade- for example, Caspi v. Microsoft Network, L.L.C.38 Before quate notice.44 In all these actions, from Moore to Specht, joining the Microsoft Network, a prospective member the construction of the e-agreement was under attack, was prompted to enter a subscriber agreement with not the electronic medium itself, which is to say that the click-boxes providing the options: “I Agree” and “I Don’t courts all tacitly approved of it. Agree.” Registration could only proceed after the sub- Courts have not indicated any special reasons, such scriber had an opportunity to view the screen and click as the rise of e-commerce, to give Web site agree- the “I Agree” box. The New Jersey state appellate court ments an exclusive right to the electronic form, finding held that between an electronic and printed contract other electronic transactions governed by the statute “there is no significant distinction.”39 Another example is of frauds equally valid. A 2004 New York state case of In re RealNetworks, Inc.,40 where the Northern District of first impression was Rosenfeld v. Zerneck, where the trial Illinois examined whether the arbitration clause in a Web court addressed whether parties may enter a real estate site license agreement constituted a writing as required contract by e-mail. In deciding if the typed signature at under the federal and state arbitration acts. The district the bottom of defendant’s e-mail satisfied the writing court applied a literal interpretation of the term “writ- requirement under New York State’s statute of frauds, the ing,” concluding that the definition of “writing” did not court held that the defendant’s “act of typing his name exclude electronic agreements. at the bottom of the e-mail manifested his intention to Other courts have, however, bypassed the question authenticate [the] transmission.”45 In 2008, the New York of the medium’s validity altogether, focusing instead on Appellate Division, First Department applied Rosenfeld to the construction of the Web site agreement. For instance, an e-mailed employment agreement. In Stevens v. Publics, in Moore v. Microsoft Corp.,41 the plaintiff had to scroll the appellate court held that the “e-mails from plaintiff through the terms of the license and then click the “I constituted a signed writing within the meaning of the Agree” icon before he could download the software. statute of frauds.”46 In the federal forum, the Seventh Paying no attention to the validity of the electronic Circuit considered whether the defendant’s e-mailed pur- medium, the New York state appellate court focused on chase orders, which contained only the sender’s name in whether or not the plaintiff received adequate notice of the e-mails, satisfied the UCC statute of fraud’s signature

NYSBA Journal | October 2009 | 15 requirement. Judge Posner, writing for the court, claimed offeree materially modifies and returns the contract, it that “neither the common law nor the UCC requires a would likely fail for lack of mutuality. hand-written signature,” concluding that the sender’s name on the e-mails met the signature requirement.47 Conclusion With these actions, the issue was not so much whether the While the electronic medium is seemingly equal to the electronic medium is a valid means for executing employ- handwritten paper form, new transactional legal chal- ment or real estate agreements, but whether a statute lenges will certainly arise as the digital age progresses. restricts the use of the medium. Already increasingly common methods of e-communication will likely pose significant legal tests. Before long, Construction of an E-Contract the law will have to assess the validity of transactions While E-Sign and ESRA allow electronic contracts to serve executed via text messaging, instant messaging, Twitter, as legitimate substitutes for many paper contracts, they and Facebook. Do these electronic avenues differ signifi- provide limited guidance for practitioners attempting to cantly from e-mail correspondence? Will their informal properly construct an electronic contract. Practitioners nature preclude them from being a valid and enforceable should, therefore, consult the small body of electronic alternative? Will courts begin to individually examine the common law to determine the safest way to design and types of electronic communication thruways employed? build an e-contract. The answers are all arguably no. Courts have never The case law highlights a number of general architec- scrutinized handwritten paper contracts over the type of tural guideposts. At the very least, properly constructed paper used, whether it was a napkin or personal check, e-contracts should contain sufficient notice of all terms, but rather over whether the parties satisfied the formal adequate methods of consent, the ability to save and formation requirements, such as providing fair notice print the agreement, and a readable format.48 For of terms and evidencing mutual consent. As long as the instance, in Feldman v. Google, the federal district court electronic alternatives allow for valid formation, courts held that an e-contract seven paragraphs in length was should uphold them too. ■ “not so long as to render scrolling down to view all the terms inconvenient or impossible.” With that in mind, 1. A third article, Of Keystrokes and Ballpoints, 80 N.Y. St. B.J. 46 (Jul./Aug. 2008), by William Maker, Jr., touched on the narrow issue of whether an elec- parties should likely refrain from using hyperlinks tronic writing satisfies the statute of frauds writing requirement. since they potentially obstruct a party’s notice of the 2. Raymond T. Nimmer, N.Y. St. B.J. (May/June 1996), p. 28. terms. Next, electronic consent may be accomplished by 3. Bill Zoellick, N.Y. St. B.J. (Nov./Dec. 2000), p. 10. requiring a user to click an “I agree” icon, for example, 4. Under § 7006(4), an electronic record “means a contract or other record before allowing software to be installed.49 The print and created, generated, sent, communicated, received, or stored by electronic save requirement does not necessarily mean an elec- means.” tronic agreement must provide a “print” or “save” icon; 5. 15 U.S.C. § 7006(13). the ability to cut and paste the agreement into a word 6. 15 U.S.C. § 7001. processing program will suffice.50 Finally, with respect 7. 191 Misc. 2d 531, 744 N.Y.S.2d 287 (N.Y. Sup. Ct. 2002). to readability, while no single standard exists, com- 8. 514 U.S. 549 (1995). mon sense should guide design decisions. In Feldman, 9. 529 U.S. 598 (2000). for example, the court approved contractual terms in 10. 545 U.S. 1 (2005). 12-point font and not all capitalized.51 11. 521 U.S. 898 (1997). The case law has identified two key methods to deliver 12. McFarlan, 191 Misc. 2d at 538. The court’s source for this proposition is an e-contract: (1) by e-mail or (2) by accessing a contract unclear since it incorrectly cites to a federal criminal statute. No provision in E-Sign appears to preempt state law with respect to agency records. on a Web site, as in a Web site license agreement.52 Today, 13. 15 U.S.C. § 7006. other methods certainly exist. A number of software 14. McFarlan, 191 Misc. 2d at 539. programs, such as Adobe Acrobat and Omniforms, allow 15. Id. individuals to convert word-processed and hard-copy 16. No. 01CIV4191, 2003 WL 1622181 *1 (S.D.N.Y. 2003). documents to digital forms that parties can digitally fill 17. Id. at *3. in, save, and e-mail as attachments. Finally, while not addressed in any of the e-con- 18. No. 03 CIV 4860 (CM), 2004 WL 1171405 *1 (S.D.N.Y. 2004). tract cases, an offeror should also construct a non-UCC 19. Id. e-contract that adheres to the mirror-image rule.53 In 20. 407 F.3d 546 (1st Cir. 2005). New York, the mirror-image rule states that an offeree’s 21. Id. at 556. The court added that, pursuant to E-Sign, an e-mail agreement to arbitrate is also likely enforceable under the Americans with Disabilities Act. response operates as an acceptance only if it is to the exact 22. See also Specht v. Netscape Commc’ns Corp., 306 F.3d 17 (2d Cir. 2002) (E-Sign 54 terms of the offer. An offeror should, therefore, create settled the issue that the arbitration provision of the online agreement was a an electronic contract where the prospective offeree can- writing); Cloud Corp. v. Hasbro, Inc., 314 F.3d 289 (7th Cir. 2002) (had E-Sign not delete or insert material language. Otherwise, if the taken effect before the contract had been completed, it would uphold the legal

16 | October 2009 | NYSBA Journal effect of the e-mails under the UCC statute of frauds); MacDermid v. Discover 41. 293 A.D.2d 587, 741 N.Y.S.2d 91 (2d Dep’t 2002). Fin. Servs., 488 F.3d 721 (6th Cir. 2007) (online credit card application deemed 42. 38 S.W.3d 200 (Tex. App. 2001). valid under E-Sign). 43. 170 F. Supp. 2d 974 (E.D. Cal. 2000). 23. 413 F. Supp. 2d 489 (E.D. Pa. 2005). 44. See Specht v. Netscape Commc’ns Corp., 306 F.3d 17 (2d Cir. 2002) (the court 24. 14 Misc. 3d 800, 831 N.Y.S.2d 849 (Dist. Ct., Suffolk Co. 2006). found that a browse-wrap license agreement was invalid for failure to provide 25. 413 F. Supp. 2d 489. sufficient notice of the terms). 26. See N.Y. State Technology Law § 301 (“State Tech. Law”). 45. 4 Misc. 3d 193, 776 N.Y.S.2d 458 (N.Y. Sup. Ct. 2004). But see Vista Developers 27. 9 N.Y.C.R.R. § 540.1(a). Corp. v. VFP Realty LLC, 17 Misc. 3d 914, 847 N.Y.S2d 416 (Sup. Ct., Queens Co. 2007) (holding that signed e-mail does not satisfy statute of frauds in a real 28. State Tech. Law § 309. estate transaction). 29. McFarlan, 191 Misc. 2d at 538. 46. 50 A.D.3d 253, 854 N.Y.S.2d 590 (1st Dep’t 2008). See also Al-Bawaba.Com, 30. State Tech. Law § 302: An electronic record “shall mean information, Inc. v. Nstein Technologies Corp., 19 Misc. 3d 1125(A), 862 N.Y.S.2d 812 (Sup. Ct., evidencing any act, transaction, occurrence, event, or other activity, produced Kings Co. 2008) (applying Rosenfeld to e-mail license agreement). or stored by electronic means and capable of being accurately reproduced in 47. Hasbro, 314 F.3d 289. forms perceptible by human capabilities.” 31. 192 Misc. 2d 188, 745 N.Y.S.2d 816 (N.Y. Civ. Ct. 2002). 48. See Caspi v. Microsoft Network, L.L.C., 323 N.J. Super. 118, 732 A.2d 528 (N.J. Super. Ct. App. Div. 1999); Barnett v. Network Solutions, 38 S.W.3d 200 (Tex. App. 32. 11 Misc. 3d 200, 805 N.Y.S.2d 506 (N.Y. City Ct. 2005). 2001); In re RealNetworks, Inc., No. 00 C 1366, 2000 WL 631341 *1 (N.D. Ill. May 33. Id. 8, 2000). 34. 20 Misc. 3d 298, 857 N.Y.S.2d 482 (N.Y. Just. Ct. 2008). 49. Moore v. Microsoft Corp., 293 A.D.2d 587, 741 N.Y.S.2d 91 (2d Dep’t 2002). 35. Id. 50. In re RealNetworks, Inc., 2000 WL 631341 *1. 36. Id. 51. Forrest v. Verizon Commc’ns, Inc., 805 A.2d 1007, 1010 (D.D.C. 2002); Feldman v. Google, Inc., 513 F. Supp. 2d 229 (E.D. Pa 2007). 37. While the cases discussed in this section were decided between the late 1990s and early 2000s, courts continue to cite them today as guiding precedent. 52. See Barnett, 38 S.W.3d 200; Specht, 306 F.3d 17; Caspi, 732 A.2d 528; Moore, See, e.g., Mortgage Plus, Inc. v. DocMagic, Inc., 2004 WL 23331918 (D. Kan. 2004); 293 A.D.2d 587; Rosenfeld v. Zerneck, 4 Misc. 3d 193, 776 N.Y.S.2d 458 (N.Y. Sup. Feldman v. Google, Inc., 513 F. Supp. 2d 229 (E.D. Pa 2007); Jesmer v. Retail Magic, Ct. 2004); Cloud Corp., 314 F.3d 289. Inc., 55 A.D.3d 171 (2d Dep’t 2008). 53. The UCC abandoned the mirror-image rule for the rule of good faith which 38. 323 N.J. Super. 118, 732 A.2d 528 (N.J. Super. Ct. App. Div. 1999). does not invalidate an offer if the offeree modifies the terms in good faith. 39. Id. at 119. 54. See Sinram-Marnis Oil Co., Inc. v. City of N.Y., 139 A.D.2d 360, 532 N.Y.S.2d 40. No. 00 C 1366, 2000 WL 631341 *1 (N.D. Ill. May 8, 2000). 94 (1st Dep’t 1988).

NYSBA Journal | October 2009 | 17 BURDEN OF PROOF BY DAVID PAUL HOROWITZ

DAVID PAUL HOROWITZ ([email protected] or [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.

“Buried, But Not Dead”

s the leaves fall this October, what? Not one person got it. Not notice, the case is called by the clerk, and a sudden cold snap my classmates; not my teacher, Mrs. and if the action has, in fact, been Areminds us that winter is just Wildman; not the principal. Following abandoned, and no one answers the around the corner, one’s thoughts my grand entrance, as the assemblage’s call of the calendar, the case is dis- invariably turn to that uniquely stunned silence quickly turned to rau- missed pursuant to CPLR 3404, and American holiday, Halloween. For me, cous jeering, feeling a bit like Carrie the one-year period to restore the case the iconic, Norman Rockwell-inspired at the prom, I burst into tears and fled to the trial calendar begins to run. If childhood memories of dunking for the gymnasium. On the way out, Mrs. the calendar call is answered, CPLR apples and binging for weeks on the Wildman stopped me: “David, what 3404 does not come into play, and the fruits of trick-or-treating plotted and were you thinking?” court generally sets the case down carried out with the precision of the This is what I stammered in reply. for either a pre-trial conference or a landings at Normandy, are overshad- trial date. owed by the memory of my life’s CPLR 3404 Whether “marked off,” struck from greatest humiliation. CPLR 3404 provides for the automatic the calendar, or unanswered at a clerk’s As a child, while my friends were dismissal, for failure to prosecute, of calendar call, the case is taken off the reading comic books or the Hardy a case that has been “marked off,” or court’s trial calendar and placed in a Boys, I was thumbing through the struck from the trial calendar, or has state of suspended animation, from CPLR. As my friends decorated their gone unanswered at a clerk’s calendar which it is either revived by restoring rooms as firehouses or forts from the call, and has not been restored to the the case to the trial calendar within one western frontier, my room was set up trial calendar within one year. year of being taken off the calendar or as a miniature courtroom. And while In New York a case is “marked off” dismissed. my friends wanted to grow up to be or struck from the calendar when one The restoration of an action within John Glenn or Roger Maris, I wanted or more of the parties is unable to pro- one year of its being taken off the trial to grow up and be, well, David Siegel. ceed to trial on the date set by the court calendar in one of the ways set forth Alas, that was not to be. for trial and the court will not allow the above, is a simple task. In some coun- My childhood dreams were shat- trial date to be adjourned. When this ties, the plaintiff simply notifies the tered on Halloween, 1965. Determined happens, CPLR 3404 is triggered, and clerk of the trial court, either in writing to win the prize for best costume, and the one-year period to restore the case or by advising the clerk of the part that thereby earn the everlasting respect to the trial calendar begins to run. If the the case is being restored. Other coun- and admiration of my classmates, court elects to adjourn the trial date, ties require a stipulation, and, where a I designed a costume so clever, so the action remains on the trial calendar, stipulation is not agreed to, a motion sophisticated, and so terrifying that to be called to trial at a later date, and may be required. In any event, all that winning the prize was a foregone con- CPLR 3404 has no application. is required is notification by the plain- clusion. That too was not to be. Instead A clerk’s calendar call is a device tiff that the case is ready to be restored. of achieving what I now realize would utilized in some counties whereby A motion to restore an action within have been fleeting fame, I thereafter notice is given that certain actions, the one-year period may be opposed, endured daily taunts until my fam- when there has been no activity noted and the motion denied, where the par- ily finally moved out of the neighbor- for a case for a set period of time and ties stipulated, or the order striking the hood. which the court suspects may have action specified actions to be taken by The source of my humiliation? I been abandoned, are placed on a cal- the plaintiff prior to restoration that went to my school Halloween party endar to be called at a specified date were not done at the time the motion dressed as CPLR 3404. And you know and time. At the time set forth in the is made.

18 | October 2009 | NYSBA Journal A dismissal pursuant to CPLR 3404, CPLR 3404 is one of several calen- and only in cases in which a note of in contrast with a dismissal for lack of dar control devices contained in the issue has been filed.3 prosecution pursuant to CPLR 3216, CPLR and in the Uniform Rules for requires no motion or other action by Trial Courts permitting the dismissal of Conclusion a party, and requires no order from actions. Other calendar control devices Once my sobbing subsided to the occa- a judge. All that is required is a min- include CPLR 3216, which provides sional shuddering sigh, Mrs. Wildman isterial act by the clerk to make the for the dismissal of actions for lack of said: “What on earth does any of that appropriate entry dismissing the case prosecution prior to the time a note have to do with Halloween?” I looked after the one-year time period has run. of issue is filed, and § 202.27 of the at her incredulously. “Don’t you get CPLR 3404 specifies that a dismissal Uniform Rules of Trial Courts,1 which it? Your case is no longer alive, but it’s pursuant to the rule is without costs. authorizes a trial court to dismiss a not dead either, you can still bring it Some courts have made the point that case or take other action if a party fails back to life! It’s perfect for Halloween.” a CPLR 3404 dismissal is never minis- to appear at a scheduled calendar call Shooting me the same look she had terial since it creates a presumption of or conference.2 Alternatively, the court when I asked why I couldn’t sing with abandonment that may be negated by may elect to grant an adjournment, the others after being designated a “lis- proof of litigation in progress, yet this although many judges feel constrained tener” at auditions for the chorus, Mrs. seems to be a distinction without a dif- by the deadlines imposed by the court Wildman told me to go on home, get ference. Thus, an action dismissed after system for the trial of actions (referred a good night’s sleep, and not to worry one year pursuant to CPLR 3404 is, in to as “standards and goals”) or the court about the other kids. fact, dismissed, even if it may be pos- may vacate the note of issue and restore Well, perhaps this Halloween you sible to overcome the presumption of the case to pre-note status, pursuant to will remember my childhood night- abandonment that led to the dismissal. § 202.21(e) of the Uniform Rules. mare and toss trick-or-treaters a cou- Once an action is dismissed pursu- The practice of trial courts “mark- ple of extra pieces of candy. Whether ant to CPLR 3404, a motion to vacate ing off” or striking cases from the or not you do, if your action is marked the dismissal, pursuant to CPLR 5015, calendar has expanded beyond the off, or struck from the trial calendar, or and restore the action must be made. limited purpose for which the statute goes unanswered at a clerk’s calendar In seeking vacatur of the dismissal and was originally intended, and is now call, remember Scout on the way home restoration to the calendar, the mov- frequently utilized, to make a court’s from her school pageant in her squash ing papers must demonstrate a meri- calendar compliant with “standards costume, feeling lost and scared in torious cause of action, a reasonable and goals.” This expansion of the use the woods, and that, like Boo Radley, excuse for the delay, a lack of prejudice, of the statute, implemented in vary- CPLR 3404 is there to save you. ■ and the lack of intent to abandon the ing ways and with divergent means action. Because the dismissal is one for of restoration, has sown confusion as 1. 22 N.Y.C.R.R. § 202.27. neglect to prosecute, an order denying this and other aspects of calendar prac- 2. See Basetti v. Nour, 287 A.D.2d 126, 128, 731 N.Y.S.2d 35, 37 (2d Dep’t 2001). See also Uddaraju a motion to restore an action deemed tice vary, often significantly, from one v. City of N.Y., 1 A.D.3d 140, 766 N.Y.S.2d 207 (1st abandoned should comply with the county to another. Recent Appellate Dep’t 2003); Lopez v. Imperial Delivery Serv., Inc., 282 recently enacted amendment to CPLR Division cases take the position that A.D.2d 190, 725 N.Y.S.2d 57 (2d Dep’t 2001). 205(a), which requires a recitation of CPLR 3404 has been overused and, in 3. See Basetti, 287 A.D.2d at 128; Lopez, 282 A.D.2d 190. the specific conduct constituting the accordance with the original intent of neglect. the section, it should be used sparingly,

NEW YORK STATE BAR ASSOCIATION Annual Meeting location has been moved— Hilton New York 1335 Avenue of the Americas New York City January 25-30, 2010

NYSBA Journal | October 2009 | 19 EDNA SUSSMAN (esussman@ sussmanADR.com) is a principal of SussmanADR LLC and is the Distinguished ADR Practitioner in Residence at Fordham University School of Law. She is the Chair- Elect of the Dispute Resolution Section of the New York State Bar Association. Formerly a partner at a leading international law firm, she serves on the arbitration and mediation panels of many of the principal dispute resolution institutions, including the AAA, ICDR, CPR, WIPO and FINRA and the mediation panels of the federal, state and bankruptcy courts in New York.

Why Arbitrate? The Benefits and Savings By Edna Sussman

hoice – the opportunity to tailor procedures to business nificantly reduce costs and provide for a much speedier goals and priorities – is the fundamental advantage of resolution than can be found in court. Carbitration over litigation.1 Flexible Process – As arbitration is a creature of contract, Much has been written in recent years about whether the parties can design the process to accommodate their arbitration has become so much like litigation that arbi- respective needs. Hearings may be set at the parties’ con- tration’s most commonly cited benefits – saving time and venience and the less formal and less adversarial setting money – no longer pertain. One author, writing in a recent minimizes the stress on what are often continuing busi- issue of the New York State Bar Association Journal, sug- ness relationships. gested that the cost of the arbitrators’ fees makes litigation Subject Matter Expertise – Arbitration permits the par- the less expensive alternative for resolving commercial ties to choose adjudicators with the expertise necessary to disputes.2 Response to this and other criticisms requires decide complex issues that often require such industry- a review of the many benefits of arbitration, a look at the specific expertise. empirical data on the speed and cost of arbitration, and a Finality – Judicial review of awards is restricted to summary of the mechanisms available to the parties and very limited issues. The finality of awards is particularly their counsel to control costs and increase efficiency.3 important in business transactions. In many instances, with the cost of capital and the paralysis that indecision Why Arbitrate? can bring to businesses, the most important consideration Benefits in a commercial dispute is that it be quickly and defini- The many benefits of arbitration have led to the extensive tively decided. use of arbitration as the process of choice for dispute reso- Confidentiality – Arbitral hearings, as opposed to court lution in commercial disputes. These include: trials, are generally private, and confidentiality can be Faster and Cheaper – As is discussed at greater length agreed to by the parties. Most arbitral institutions have below, arbitration is the parties’ process. The parties can specific rules regarding the confidentiality of proceedings craft and implement a streamlined procedure that can sig- and awards. This is an important feature for many cor-

20 | October 2009 | NYSBA Journal porations, particularly when dealing with disputes over By contrast, as reported for 2008, the median length intellectual property and trade secrets. of time for civil cases resolved through trial in the U.S. District Court for the Southern District of New York was International Arena 30.7 months for jury cases and 27.0 months for non-jury Certain additional features of arbitration in the interna- cases, a number in line with most other federal district tional context are of particular importance: courts.7 The median length of time from filing in lower Cross-Border Expertise – Arbitration permits the parties court to disposition in the Second Circuit for cases that to choose adjudicators with the necessary expertise to were appealed was 43.1 months.8 The Bureau of Justice decide the dispute. Such special expertise can include an Statistics reports that for state court contract cases in the understanding of more than one legal tradition – such as 75 largest U.S. counties, the average length of time from common law, civil law or sharia law – an understanding case filing to trial in jury cases was 25.3 months and for and ability to harmonize cross-border cultural differences bench trials 18.4 months.9 and fluency in more than one language. Thus as compared with both U.S. federal and state Neutrality – In the international context, arbitration court systems, arbitration affords a significant time sav- provides a neutral forum for dispute resolution and ing for the vast majority of cases. Indeed the average case enables the parties to select decision makers of neutral appears to reach resolution three to five times faster in nationalities who are detached from the parties or their arbitration. And it must be noted that many international respective home state governments and courts, in a court systems are considerably slower than those in the setting in which bias is avoided and the rule of law is United States. observed. Counsel expenses and fees are the most significant Enforceability – In the international context, a critical cost of litigation. Inevitably, a longer process requires the feature is the existence and effective operation of the New expenditure of additional lawyer time as it creates oppor- York Convention to which over 140 nations are parties. tunities for additional discovery and motion practice. The The Convention enables the enforceability of interna- abbreviated schedule in most arbitrations usually results tional arbitration agreements and awards across borders. in significant cost savings. It significantly limits the grounds for refusal to enforce an arbitration agreement or award, making it possible to Is Arbitration Really Cheaper? enforce an award even in a jurisdiction that might oth- The reduced cost available in arbitration has historically erwise find ways to favor its domestic party. In contrast, been viewed as a principal reason to favor arbitration judgments of national courts are much more difficult and over litigation. It is true that access to the courts is essen- often impossible to enforce abroad. tially free while arbitration has some costs associated Thus, even apart from the lower cost and greater with it – i.e., the cost of the administering institution if speed, many parties choose arbitration for dispute resolu- one is selected and the cost of the arbitrator(s) – but these tion for one or more of these other benefits. must be viewed in light of the total cost of the proceeding, including counsel fees and the other costs of preparing Is Arbitration Really Faster? a case. While there appear to be no definitive statistical The availability of a process that is quicker than a court studies comparing the costs of arbitration with litigation proceeding has long been a principal reason for the in commercial cases, through informal comparisons and selection of arbitration for dispute resolution in business anecdotal evidence arbitration appears to be generally transactions. The statistics support the long-held belief cheaper.10 Certainly it is a process that can be streamlined that arbitration is a mechanism for achieving speedier by the parties. dispute resolution. The American Arbitration Association Only a small part of the total cost of arbitration goes (AAA) reports that for its business-to-business cases in for the fees and expenses of the arbitrators and the tribu- which awards were rendered in 2008, the median length nal, the “additional” cost of arbitration. The International of time from the filing of the demand to the award was Chamber of Commerce reported that 82% of the costs 238 days or 7.9 months.4 The AAA’s international arm, incurred were what the parties spent to present their case, the International Centre for Dispute Resolution (ICDR), including lawyer fees and expenses, expenses related to reports that for its cases in which awards were rendered witnesses and expert evidence, and other case prepara- in 2008, the median length of time from the filing of the tion costs.11 Thus, arbitrator and institutional charges demand to the award was exactly 365 days or 12 months.5 were only 18% of the cost of the arbitration. And it should The International Institute for Conflict Prevention and be noted that the costs for case preparation and presenta- Resolution (CPR) reports that for its domestic and inter- tion are much more easily controlled in arbitration than national cases combined in which an award was rendered in litigation. in 2008, the median length of time from the filing of the In litigation one is subject to the Federal Rules of demand to the award was 347 days or 11.5 months.6 Civil Procedure or parallel state court rules that allow for

NYSBA Journal | October 2009 | 21 broad discovery, including both document discovery and arbitration process, counsel can consider contractually depositions. Typically, discovery is a very costly part of limiting document discovery, barring or limiting deposi- trial preparation, and it can be burdensome to the par- tions, providing for fast-track procedures (such as limit- ties as well. Document discovery is generally more lim- ing the length of time from appointment of the arbitrators ited in arbitration; depositions are either dispensed with to hearing and from the hearing to award), providing for altogether or are severely limited in number. Extensive “baseball arbitration,” limiting the matter to one arbitra- motion practice is commonplace in court but is much less tor at least for smaller disputes, excluding judicial review common and, in fact, usually discouraged in arbitration. where that is permissible, and taking care to draft an arbi-

If the parties jointly seek to extend or complicate the arbitration, they may obstruct the arbitrator’s ability to achieve efﬁ ciency goals.

Court cases require more counsel time for preparation tration clause that will not provide grounds for a court and trial than is the case with arbitration. For example, challenge as to its application. The selection of appropri- trial-related matters not pertinent to arbitration include ate governing rules can make all the difference and can evidentiary issues, voir dire and jury charges instruc- set up the time limits and other procedures desired. In tions, and proposed findings of fact and law. Appeals selecting the arbitral institutional rules that will govern, from trial court decisions are commonly filed, a process they should be reviewed to make an informed choice. generally unavailable and, in any case, very unusual in Unless the parties want a lengthy proceeding, counsel arbitration.12 All of these additional costs must be fac- should not provide for the application of the Federal tored into any consideration of the costs of arbitration. Rules of Civil Procedure or the Federal Rules of Evidence. This suggests that arbitration can be, and generally is, Of course it takes two to tango, and this contractual much less expensive even with a paid adjudicator. approach to limiting dispute resolution timing and costs only works if agreed to by all parties.13 What Can Parties Do to Make Arbitration Choice of Institution – Examine the rules of the provider Faster and Cheaper? institution selected, if the matter will not be ad hoc, in While a good arbitrator will manage the arbitration to deciding which is most suitable. The rules of the institu- expedite the proceeding and minimize costs, the parties tions vary. Some have rules that promote more expedi- and their counsel can have a determinative role and in all tious and less costly resolution. cases they play a significant part in establishing the tim- Choice of Counsel – Retain counsel who understand ing and costs for the matter. Arbitrators can “jaw-bone,” the interest in efficiency and cost savings and who are set schedules, emphasize efficiency and cost saving, and experienced in arbitration. Selecting counsel who are work with the parties to streamline the process, but they accustomed to litigation and see all cases as best tried are required to follow the terms of the arbitration agree- with a “leave no stone unturned” attitude can lead to the ment. If, for example, the arbitration agreement estab- conversion of the arbitration into a litigation-like process, lishes extensive litigation-like protocols, the arbitrator especially if all parties subscribe to that view. must follow them. If the parties jointly seek to extend or Choice of Arbitrator(s) – Select an arbitrator who (1) is complicate the arbitration, they may obstruct the arbitra- experienced in case management and has the ability to tor’s ability to achieve efficiency goals. conduct the pre-hearing procedures efficiently; (2) is There are many steps counsel and parties can take available to deal promptly with pre-hearing issues, hear to assure time and cost savings; much is in their hands. the case in the near term, and deliver awards without Efficiency and cost are not always the parties’ principal undue delay after the hearing; and (3) has the ability to goals in arbitration, however. But if speed and cost saving move hearings along. are objectives sought by the parties, attention should be Choices on Discovery – Do not seek extensive docu- devoted to carefully addressing the many choices avail- ment discovery; eliminate depositions altogether or limit able, including the following: them to one or two per party. If one party opposes broad Contract Provisions – Counsel are increasingly com- discovery, it is much easier for the arbitrator to set tight ing to recognize the importance of tailoring the dispute limitations, as he or she is not faced with “the parties’ resolution clause to the specific needs of the situation process” and right to choose. Provide that a single arbi- and are no longer simply inserting the “standard clause” trator be authorized to rule on discovery issues. at midnight. In order to assure a speedy and less costly CONTINUED ON PAGE 24

22 | October 2009 | NYSBA Journal NYSBA Journal | October 2009 | 23 CONTINUED FROM PAGE 22 Conclusion Any system of dispute resolution, whether arbitration or Choices on Pre-Hearing Issues – Don’t make motions litigation, will have its outliers, the cases that run amok, other than those as to such threshold issues as the juris- and it is easy to point to those to support a negative view. diction of the tribunal or the statute of limitations. Work However, any realistic analysis must look to the function- cooperatively with opposing counsel to minimize the ing of the overall system and the unique ability the parties matters that must be brought to the arbitrator for resolu- have to craft a process that meets their needs. If cost and tion. time savings are important to the parties, arbitration pro- Choices on Scheduling – Pick as early a date for the hear- vides a mechanism for achieving those goals. Litigation ing as is realistic and consistent with the level of prepara- may have many other virtues but it simply does not offer tion the case merits based on client goals – and stick to it. the parties the opportunity to tailor the process to meet Rescheduling a hearing can often cause a lengthy delay as those objectives. ■ it can be difficult to find dates on which all participants are available. 1. Thomas J. Stipanowich, Arbitration and Choice: Taking Charge of the “New Litigation,” 7 De Paul Bus. & Comm. L.J. 3 (forthcoming 2009), available at Choices for the Hearing – The conduct of the hearing can http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1372291. be expedited by (1) presenting direct testimony by affi- 2. Ronald J. Offenkrantz, Arbitrating Commercial Issues: Do You Really Know the davit; (2) limiting the time available for the hearing and, Out-of Pocket Costs? N.Y. St. B.J. (Jul./Aug. 2009), p. 30. if appropriate, using the “chess clock method” to assure 3. This article focuses on commercial disputes. Consumer and employment equal time; (3) using telephone and video conferencing arbitration which has been controversial in recent years and has been the subject of numerous studies and articles is beyond its scope. technology; (4) choosing a hearing location that minimizes 4. E-mail from American Arbitration Association on file with author. expenses to the parties; (5) conferencing or “hot tubbing” 5. E-mail from the International Centre for Dispute Resolution on file with the experts; (6) using a single expert to advise the arbitra- author. tors rather than having the parties offer competing experts; 6. E-mail from the International Institute for Conflict Prevention and and (7) limiting post-hearing submissions. Resolution on file with author. 7. Judicial Business of the United States Courts 2008 Table C-10, available at What Else Is Being Done to Make Arbitration Faster http://www.uscourts.gov/judbus2008/contents.cfm. and Cheaper? 8. Id. at Table B-4A. Current criticisms of arbitration – that it is neither speedy 9. Civil Justice Survey of State Courts, Bureau of Justice Statistics 2005, available at nor cost-effective – largely stem from two issues: the http://www.ojp.usdoj.gov/bjs/pub/pdf/cbjtsc05.pdf. submission to arbitration of sophisticated business cases 10. Susan Zuckerman, Comparing Cost in Arbitration and Litigation, 62 Disp. Res. J. 42 (2007). An anecdotal study in which three construction litigators and of significant monetary value and the advent of globaliza- arbitrators concluded that litigation was 27% more expensive than arbitration with the resulting increase in complex cross-border tion even assuming that several depositions were taken in the arbitration and disputes. Counsel and parties have in recent years chosen excluding the costs of appeals in a court proceeding. to handle some of these matters in a manner that has led 11. International Chamber of Commerce Commission on Arbitration, to their falling within time frames and cost structures Techniques for Controlling Time and Costs for Arbitration, available at http://www. iccwbo.org/uploadedFiles/TimeCost_E.pdf. more akin to litigation than arbitration. These cases have 12. See, e.g., Hall St. Assocs. v. Mattel, Inc., 128 S. Ct. 1396 (2008). Some institu- led some to question the efficacy of arbitration. tions provide for an appellate process with a panel of arbitrators but parties The arbitral institutions have been responsive to the have not commonly availed themselves of this option. For example, CPR criticism and are devoting significant attention to foster- established rules for an appellate process with a panel of three arbitrators in 1999, but the process has never been used by any party. ing speedier and cheaper arbitration proceedings by pro- 13. For a discussion of the many issues a careful drafter should consider in 14 mulgating rules, guidelines and protocols intended to drafting the dispute resolution clause, see Stipanowich, supra note 1; John help parties select a more efficient process, and to provide Townsend, Drafting Arbitration Clauses: Avoiding the 7 Deadly Sins, 58 Disp. a concrete, rule-based protocol for the arbitrator to resist Resol. J. 28 (2003). burdensome party requests. Educational programs for 14. See, e.g., AAA Commercial Arbitration Rules. Expedited Procedures; ICDR Guidelines for Information Exchanges in International Arbitration; JAMS Streamlined arbitrators now often emphasize the ways in which the Arbitration Rules and Procedures; CPR Protocol on Disclosure of Documents arbitrator can facilitate an efficient hearing. To meet the and Presentation of Witnesses in Commercial Arbitration; ICC Commission on criticism head on, the College of Commercial Arbitrators Arbitration, supra note 11; IBA Rules on the Taking of Evidence in International Commercial Arbitration. is holding a national summit in October 2009 for all constituencies to come together to discuss and vote on a series of concrete, practical protocols. In short, the institutions and the arbitrators are step- ping up to the challenge of preserving the time- and cost-saving advantages of arbitration. However, it takes parallel motivation and action by parties and counsel to achieve the goal.

24 | October 2009 | NYSBA Journal NYSBA Journal | October 2009 | 25 PLANNING AHEAD BY ILENE S. COOPER AND ROBERT M. HARPER

ILENE S. COOPER ([email protected]) is a partner at the Uniondale-based law firm of Farrell Fritz, P.C. She concentrates her practice in the field of Trusts and Estates litigation. Ms. Cooper is President of the Suffolk County Bar Association, an Adjunct Professor at Touro Law Center, and a Fellow of the American College of Trust and Estate Counsel.

ROBERT M. HARPER ([email protected]) is an associate at Farrell Fritz, P.C., concentrating in the field of Trusts and Estates litigation.

Exoneration Clauses – Not All They’re Cracked Up to Be

ntent is a paramount concern in Principles of Construction and Examples of testamentary provi- construing the provisions of a will the Role of Public Policy sions that violate the law or public Ior trust, but public policy consid- New York law authorizes an individu- policy abound.10 In In re Walker, the erations often play an important role. al having testamentary capacity to dis- petitioners commenced a construc- While these concerns generally coin- pose of property “in any manner and tion proceeding, seeking to obtain two cide, when matters of public policy for any . . . purpose,” provided that adoption decrees they claimed the conflict with a dispositive plan, public the disposition does not offend pub- decedent, their adoptive father, specifi- policy considerations will be decisive lic policy.1 Consistent with that prin- cally bequeathed to them in his will.11 of the outcome. ciple, intent generally trumps all other The petitioners sought the decrees Public policy concerns most often concerns in construing testamentary because the documents purportedly come into play when issues of fiduciary instruments.2 Courts are charged with identified their biological mothers.12 duty and liability are before the court. effectuating that purpose by imple- The Surrogate’s Court, New York Testamentary clauses that purport to menting each testator’s testamentary County, denied the petitioners’ appli- exonerate a fiduciary from responsibil- scheme, determining the decedent’s cation and dismissed the petition, rea- ity for failing to exercise prudence and intentions from the plain language soning that public policy required the reasonable care have been found inval- of the entire will, and construing the confidentiality of adoption records.13 In id as contrary to public policy. While, words memorialized therein in accor- affirming the surrogate’s decision, the historically, exoneration clauses have dance with their ordinary meanings.3 Appellate Division, First Department been a matter requiring judicial inter- Once ascertained, the testator’s and the Court of Appeals relied upon vention, with the passage of § 11-1.7 of intent typically controls.4 Although the same policy-based rationale.14 As the N.Y. Estates, Powers & Trusts Law the testator’s voice has been silenced the Court of Appeals explained, the (EPTL) in 1966 testamentary attempts by death, courts are duty-bound to decedent’s bequest was “contrary to to immunize a fiduciary from liability effectuate his or her expressed tes- public policy because consummation have been eliminated by legislative tamentary wishes, regardless of any of the transfer [was] sought for the fiat. Nevertheless, because EPTL 11-1.7 conflicts among clamoring litigants.5 purpose of discovering information is limited by its terms to testamentary Neither the courts nor the beneficiaries which [was] against the public policy documents, judicial oversight in this of an estate have the power to substi- . . . to disclose without good cause.”15 area continues, and has become most tute their own wants and desires for The confidentiality was necessary to apparent in recent years, in the context those of the decedent6 – that is, unless ensure the assimilation of the adopted of inter vivos instruments. the testator’s intent violates public child into the adoptive family and This article examines the competing policy.7 the privacy of the biological parents, interests involved in the construction A legacy is violative of public policy among other concerns.16 of a will or trust, provides a general when it contravenes a constitutional Another case often cited for this background on exoneration clauses, provision, statutory prohibition, or proposition is In re Haight,17 in which and advocates for the amendment “the social judgment . . . implemented the decedent’s will conditioned his of EPTL 11-1.7 to limit the enforce- by the statute.”8 When a testator’s son’s right to enjoy the income of a ability of exoneration clauses in inter intent offends public policy, a court testamentary trust on the son’s divorce vivos trust instruments and powers of will circumvent it and substitute its or separation from his wife. Although attorney. discretion for that of the decedent.9 the Surrogate’s Court, Orange County,

26 | October 2009 | NYSBA Journal issued a decree effectuating that provi- out when the results would be absurd, not generally be divested by agree- sion, the Appellate Division, Second abhorrent or a waste of the assets of an ment or otherwise.29 Department, found it to be void as estate.”24 Accordingly, the court refused Notwithstanding that duty, how- against public policy.18 The Appellate to enforce the disputed provision.25 ever, testators and grantors have Division reasoned that “conditions In sum, while a testator’s expressed attempted to insulate their fiduciaries annexed to a gift, the tendency of which intent generally guides the construction from liability for breaching their obli- is to induce the husband and wife of a will, adherence to that intent is not gations.30 These attempts come in the to live separate, or to be divorced, are, universal. Courts can look beyond tes- form of exoneration clauses, which upon grounds of public policy and tamentary intent and substitute their purport to exculpate fiduciaries for public morals, void.”19 discretion for that of a testator when breaching the duty of undivided loy- In re Pace20 is of equal import. In the testator’s intent violates the law or alty and failing to account.31 Yet, these Pace, the decedent’s will directed the public policy of the state. clauses are not universally enforce- trustees of a testamentary trust to raze able, despite the intentions of testators, the buildings located on real property Exoneration Clauses: grantors and principals.32 held in trust.21 Noting that the build- Meaning and Early Application More than a century ago, in Crabb ings were in “good physical condition,” Estate and trust fiduciaries owe a duty v. Young, the Court of Appeals first the trustee commenced a construction of undivided, absolute loyalty to the addressed the issue of whether exon- proceeding and the Surrogate’s Court, beneficiaries whose interests they pro- eration clauses are enforceable.33 In Cayuga County, found that the subject tect.26 This “inflexible” duty of fidel- Crabb, the decedent’s will exempted the provision was void as against public ity is akin to the highest standards trustees of a testamentary trust estab- policy.22 The court explained that the of honor, not just honesty alone.27 It lished pursuant thereto from liability decedent’s intent should not be effec- obligates fiduciaries to administer the for “any loss or damage . . . except [that tuated because razing the buildings estate or trust for the benefit of the which occurred due to] their own will- would be “waste[ful].”23 As the court beneficiaries, without regard to self- ful default, misconduct or neglect.”34 further opined, “the intention of the interests.28 The legal responsibilities When the trust suffered investment maker of a will should not be carried arising from that fiduciary status can- losses, the beneficiaries sought to be

NYSBA Journal | October 2009 | 27 reimbursed by the trustee.35 Although the fiduciary [of an estate or testamen- Initially, the Appellate Divisions both the trial court and intermediate tary trust] for any loss, unless occa- for the First and Second Departments appellate court ruled that the trust- sioned by “willful neglect or miscon- enforced exoneration clauses in inter ee had an obligation to replace the duct” is a nugatory provision amount- vivos trust instruments,56 relying upon amount lost, the Court of Appeals ing to nothing more than a waste of the strong preference for respecting a reversed, relying on the exoneration good white paper.’”46 grantor’s expressed intent, rather than clause contained in the will.36 In doing Countless cases bear this point imposing judicial discretion on the so, the Court explained that the dece- out.47 Surrogate Holzman’s decision trust.57 The courts also emphasized dent “had an absolute right to select in In re Lubin48 provides a helpful that the exoneration clauses were lim- the agencies by which his bounty analysis of the statute as it relates to ited – they did not completely absolve should be distributed and to impose executors and testamentary trustees. the fiduciaries from accountability to the terms and conditions under which In Lubin, the decedent’s will provided the trust beneficiaries.58 it should be done.”37 Since there was that the executor of his estate would be More recently, courts have come to no evidence of willful default, miscon- relieved from liability “for any loss or contrary conclusions, holding that exon- duct or negligence on the trustee’s part, injury to the property . . . except . . . as eration clauses in inter vivos trust instru- the exoneration clause governed and may result from fraud, misconduct or ments are not enforceable, despite the required that the fiduciary be excused gross negligence.”49 Describing it as a statutory silence in EPTL 11-1.7.59 For from liability for the losses.38 “toothless tiger,” the surrogate refused example, in In re Shore, the Surrogate’s Subject to the requirement that fidu- to enforce the exoneration clause Court, New York County, invalidated ciaries act honestly and in good faith, because it violated public policy.50 an exoneration clause that purported the rule in Crabb prevailed for more Another noteworthy case is In re to insulate the attorney-trustee from than five decades, until the Legislature Allister, in which the decedent’s will the duty to account.60 Accountability enacted N.Y. Decedent Estate Law § 125 authorized her testamentary trustee to is the cornerstone of all fiduciary rela- (DEL) in 1936.39 Section 125 of the DEL invest the trust principal “irrespective tions, said the court; the exoneration proscribed the enforcement of exonera- of whether the same may be autho- clause in question violated public poli- tion clauses that purported to excuse rized by the laws of [this] State . . . as cy since it left the trust beneficiary with estate and testamentary trust fiducia- investments for fiduciaries and with- no one to protect his interests.61 The ries from liability for failing to exercise out the duty to diversify and without court explained that the “public policy reasonable care.40 This was necessi- any restrictions placed upon fiducia- against exonerating testamentary fidu- tated by the “increasing practice of ries by any present or future applicable ciaries from any and all accountabil- testamentary draftsmen and corporate law.”51 Notwithstanding the testator’s ity is equally applicable [to] inter vivos fiduciaries in vesting in . . . fiduciaries intent, however, the Surrogate’s Court, trusts.”62 Accordingly, the court rejected almost unlimited powers, with a mini- Nassau County, found that the exon- the attorney-trustee’s defense that the mum of obligations.”41 As the legisla- eration provision contravened EPTL exoneration clause excused her from tive history reflects, this practice was 11-1.7,52 reasoning that the provision the duty to account.63 “a serious potential menace not only to “would elevate the fiduciary above the Similarly, in In re Francis, the only the rights of a surviving spouse but of law” if effectuated.53 reported decision to address the . . . all persons interested in estates.”42 Although EPTL 11-1.7 undeniably enforceability of such clauses in pow- The same policy-based reasons gov- applies to testamentary instruments, ers of attorney, the Surrogate’s Court, erned when the Legislature passed the the statute is silent with respect to inter Westchester County, rejected the successor to DEL § 125, EPTL 11-1.7, 30 vivos trust instruments and powers of agent’s reliance on an exculpatory pro- years later.43 attorney.54 That silence has left courts to vision that authorized him to engage reach their own, sometimes divergent, in self-dealing and absolved him of Whittling Away the Power to views on the issue and necessitates the the duty to account.64 As Surrogate Exonerate Fiduciaries amendments discussed below. Anthony A. Scarpino, Jr. explained, the Under EPTL 11-1.7, a testator is pro- agent’s conduct was governed by the hibited from exculpating the executor The Statutory Silence “standard of ‘utmost good faith and or testamentary trustee nominated in As noted above, EPTL 11-1.7 is devoid undivided loyalty toward the princi- a will from liability for failing to “exer- of any mention of inter vivos trust instru- pal, [as well as] the highest principles cise reasonable care, diligence and pru- ments and powers of attorney.55 In the of morality, fidelity, loyalty and fair dence.”44 Will provisions that purport absence of statutory guidance, courts dealing.”65 Insofar as the exoneration to do so are void as against public have exercised their discretion – and clause purported to excuse the agent policy and have no effect.45 Indeed, as reached conflicting conclusions – as to from that standard, it ran “afoul of Surrogate Radigan explained in In re the enforceability of exoneration claus- New York’s public policy” and could Stralem, “‘the attempted exoneration of es in such instruments. not be enforced.66

28 | October 2009 | NYSBA Journal Since executors, trustees, and agents 3. Walker, 64 N.Y.2d at 358–60. 34. Id. acting pursuant to powers of attor- 4. Id. at 358. 35. Id. ney are held to the same standard 5. 11 Warren’s Heaton on Surrogate’s Court Prac. 36. Id. § 187.01(4)(a) (7th ed. 2007). of absolute, undivided loyalty to the 37. Id. 6. Id. beneficiaries whom they serve, public 38. Id. policy necessitates that they be treated 7. In re Godrey’s Will, 36 N.Y.S.2d 414, 415 (Sur. Ct., 39. In re Clark’s Will, 257 N.Y. 132, 138, 177 N.E. Richmond Co. 1941). 397 (1931); In re Balfe’s Will, 245 A.D. 22, 24–25, similarly, especially in the context of 280 N.Y.S. 128 (2d Dep’t 1935); Margaret Valentine 8. Walker, 64 N.Y.2d at 358–60. exoneration clauses. Therefore, EPTL Turano, Commentaries: EPTL § 11-1.7 (2008). 9. Warren’s Heaton, supra note 5, at §187.01(4)(e). 11-1.7 should be amended to effectuate 40. In re Stralem, 181 Misc. 2d 715, 719–20, 695 10. In re Liberman, 279 N.Y. 458, 464–66, 18 N.E.2d N.Y.S.2d 274 (Sur. Ct., Nassau Co. 1999). that purpose by filling the statutory 658 (1939) (holding a condition in restraint of mar- 41. Id. void with respect to inter vivos trust riage to be void as against public policy); Kalish 42. Id. instruments and powers of attorney, v. Kalish, 166 N.Y. 368, 372–73, 59 N.E. 917 (1901) (opining that the testamentary provisions, which 43. Id. regardless of the grantor’s or principal’s violated the rule against perpetuities, contravened 44. EPTL 11-1.7(a)(1). expressed intentions. Indeed, doing so the public policy of this state); Levenson v. Levenson, will ensure that the state’s public policy 229 A.D. 402, 403–406, 242 N.Y.S. 165 (2d Dep’t 45. EPTL 11-1.7(a)–(b). 1930) (stating that the decedent’s attempt to convey 46. In re Stralem, 181 Misc. 2d at 720 (citations omit- concerns regarding reasonable fiduciary an interest in a joint tenancy was invalid); In re ted). McHugh, 226 A.D. 153, 154, 234 N.Y.S. 541 (4th Dep’t conduct are served and that the courts 47. See, e.g., In re Allister, 144 Misc. 2d 994, 998, 545 1929) (invalidating a bequest of wrongful death address this issue uniformly. N.Y.S.2d 483 (Sur. Ct., Nassau Co. 1989); In re Lang, action proceedings, which did not provide for the 60 Misc. 2d 232, 234–35, 302 N.Y.S.2d 954 (Sur. Ct., statutory beneficiaries); Hacker v. Hacker, 153 A.D. Erie Co. 1969). Conclusion 270, 271–77, 138 N.Y.S. 194 (2d Dep’t 1912) (finding 48. 143 Misc. 2d 121, 539 N.Y.S.2d 695 (Sur. Ct., The language of testamentary and a testamentary provision containing an unlawful restraint on the power of alienation to be invalid). Bronx Co. 1989). non-testamentary instruments, while Id. 11. Walker, 64 N.Y.2d at 358–60. 49. at 122. generally accorded great deference by 50. Id. 12. Id. the courts, has historically yielded to 51. Allister, 144 Misc. 2d at 997–98. public policy concerns – ensuring that 13. In re Walker, 99 A.D.2d 448, 448–49, 471 N.Y.S.2d 243 (1st Dep’t 1984), aff’d, 64 N.Y.2d 354, 358–60, 486 52. Id. a fiduciary acts in accordance with the N.Y.S.2d 899 (1985). 53. Id. highest principles of morality, fidel- 14. Id. 54. In re Shore, 19 Misc. 3d 663, 665–67, 854 N.Y.S.2d ity, loyalty and fair dealing. Though 15. Walker, 64 N.Y.2d at 360. 293 (Sur. Ct., N.Y. Co. 2008); In re Francis, 19 Misc. 3d traditionally invoked in the area of 536, 541–43, 853 N.Y.S.2d 245 (Sur. Ct., Westchester 16. Id. at 360–61. Co. 2008). estates, these principles should apply 17. 51 A.D. 310, 311–12, 64 N.Y.S. 1029 (2d Dep’t 55. Coincidentally, the Legislature recently amend- equally in the context of every instru- 1900). ed the N.Y. General Obligations Law (GOL) to ment from which a fiduciary relation- 18. Id. at 313–16. ensure greater accountability among agents acting ship arises. Hence, there is no logical pursuant to powers of attorney. GOL §§ 5-1505, 19. Id. 5-1509, 5-1510. Among other things, the amended basis for excluding inter vivos trusts 20. 93 Misc. 2d 969, 400 N.Y.S.2d 488 (Sur. Ct., GOL sections specify that agents owe fiduciary and powers of attorney from the scope Cayuga Co. 1977). duties to their principals, provide for the appointment of monitors with respect to the agents, and 21. Id. at 970–75. of exceptions that have been applied authorize the commencement of special proceed- to exoneration clauses. Indeed, giv- 22. Id. ings to remove agents. Id. The new provisions are ing inter vivos trustees and attorneys- 23. Id. consistent with the amendments to EPTL 11-1.7 proposed herein in that they provide for greater in-fact unfettered discretion to act 24. Id. accountability among agents. unreasonably, without accountability, 25. Id. 56. Carey v. Cunningham, 191 A.D.2d 336, 336, 595 contravenes the very nature of their 26. 41 N.Y. Jur. 2d Decedents’ Estates § 1450 (2009); N.Y.S.2d 185 (1st Dep’t 1993); Bauer v. Bauernschmidt, fiduciary status. Section 11-1.7 should, Ian W. MacLean, Exculpatory Clauses in Inter Vivos 187 A.D.2d 477, 478–79, 589 N.Y.S.2d 582 (2d Dep’t Trusts: What Remains of a Trustee’s Duty of Undivided 1992); see also Kolentus v. AVCO Corp., 798 F.2d 949, therefore, be amended to ensure the Loyalty?, 37 NYSBA Trusts & Estates L. Section 966 (7th Cir. 1986) (applying New York law). interests of inter vivos trust beneficia- Newsl. 5, 5 (Fall 2004). 57. Bauer, 187 A.D.2d at 478–79. ries and principals are protected by 27. In re Wallens, 9 N.Y.3d 117, 122–23, 847 N.Y.S.2d 58. Carey, 191 A.D.2d at 336. 156 (2007) (discussing the duty of trustees). proscribing the enforcement of broad 59. In re Amaducci, N.Y.L.J., Jan. 12, 1998, p. 32, col. exoneration clauses, which purport 28. Id. 3 (Sur. Ct., Westchester Co.). Id. to relieve fiduciaries from the duty to 29. 60. Shore, 19 Misc. 3d at 665–67. 30. MacLean, supra note 26, at 5. exercise reasonable care, diligence and 61. Id. 31. Robert Whitman, Exoneration Clauses in Wills ■ 62. Id. prudence. and Trust Instruments, 4 Hofstra Prop. L.J. 123, 124–25 (1992). 63. Id. 1. In re Walker, 64 N.Y.2d 354, 357–60, 486 N.Y.S.2d 32. Cf. In re Stralem, 181 Misc. 2d 715, 720, 695 64. In re Francis, 19 Misc. 3d 536, 541–42, 853 899 (1985). N.Y.S.2d 274 (Sur. Ct., Nassau Co. 1999) (discussing N.Y.S.2d 245 (Sur. Ct., Westchester Co. 2008). 2. Sankel v. Spector, 8 Misc. 3d 670, 679–80, 799 the enforcement of exoneration clauses in testamen- 65. Id. N.Y.S.2d 356 (Sup. Ct., N.Y. Co. 2005); see In re Fabbri, tary instruments). 66. Id. 2 N.Y.2d 236, 239–40, 159 N.Y.S.2d 184 (1957). 33. 92 N.Y. 56, 65–67 (1883).

NYSBA Journal | October 2009 | 29 POINT OF VIEW BY BRADLEY D. KAY

BRADLEY D. KAY ([email protected]) is a second-year student at the University of Georgia School of Law and a graduate of the University of Georgia.

Is the Cure Worse Than the Disease? The Direct-to-Consumer Advertising Exception

ort reform can take many forms sumers but rather will harm consum- turer can escape liability if it can show and affect many parts of com- ers in numerous ways. that the prescriber knew of the risk, Tmon law. These reforms are gen- considered the risk, and decided the erally considered by, and passed by, Duty to Warn benefits of the drug outweighed the state legislatures. Recently, some state Product manufacturers have a duty risk of the disease that the medication legislatures have considered chang- to warn consumers about all reason- was used to treat.10 ing the duties a prescription drug ably foreseeable risks associated with manufacturer owes to the ultimate their products. To establish a prima Who Must Warn Whom? consumer. The prescription drug man- facie case, a plaintiff must prove that Courts have recognized that warn- ufacturer has two duties: (1) to make a knowledge of the warning would ings can be provided on the container safe product that is free from defects have changed the plaintiff’s behavior4; in which the products are supplied and (2) to warn the ultimate consumer and, in most cases, courts apply the or by a label or other device if fea- of any foreseeable risks.1 This warning presumption that the warning would sible.11 Many courts have recognized can come from many sources, includ- have changed the plaintiff’s conduct.5 that manufacturers and distributors of ing the drug label, brochures, and Many courts have held, however, that certain products may have no effective advertisements. this presumption should not apply in way to convey warnings to the ulti- This article will examine one pro- unavoidably dangerous products like mate consumer.12 In Persons, the court posed change to the duty of manu- prescription drugs.6 held that the manufacturer of skis did facturers of prescription drugs to ade- A manufacturer has a duty to warn not violate a duty to warn against the quately warn the ultimate consumer. of all risks that a reasonable person use of a particular type of ski boot. The Under the proposed change, a man- would want to know about, and court felt the warning the defendant ufacturer of prescription drugs who the warning must convey the scope gave to the sporting goods store was engages in direct-to-consumer adver- and seriousness of the danger.7 The enough to satisfy its duty to warn tising of those drugs, can no longer Restatement (Third) of Torts provides because the store acted as a reliable satisfy its duty to warn by warning that the manufacturer of a prescrip- third party that should have conveyed a learned intermediary – e.g., by pro- tion drug or medical device violates the information to the ultimate user. viding the prescribing physician with this duty to warn if the manufacturer The Persons court held that a warning adequate warnings, which the doctor does not provide reasonable warnings would have no benefit for consum- then conveys to patients. of foreseeable risks to the health-care ers if the consumers do not have the This reform has been considered provider – or the patient if the man- technical expertise or knowledge to in a few states,2 and it is likely that ufacturer should know that health- understand the warning.13 Warning more states will consider it as well. care providers are not in a position to the ski shop was enough to satisfy the Proponents claim this reform will ben- reduce the risks of harm in accordance defendant’s duty to warn the consum- efit consumers in two ways.3 First, they with the instructions or warnings.8 er because the consumer necessarily say, it will lower drug prices because Some courts have held that a plain- relies on the knowledge and technical the manufacturer will spend less on tiff must establish that (1) the pre- expertise of the ski shop.14 advertising. Second, it will provide scribing physician would not have A manufacturer does not always patients with better warnings since prescribed the drug if there was an have an effective or feasible way to manufacturers will have to warn con- adequate warning and (2) the injury convey a product’s warning to the ulti- sumers directly. I will argue, however, would not have occurred had the drug mate consumer. In general, courts have that this reform will not benefit con- not been administered.9 The manufac- held that a manufacturer in this situa-

30 | October 2009 | NYSBA Journal POINT OF VIEW tion does not have a duty to warn the Federal courts first held, in Sterling In 1997, the F.D.A. relaxed its restric- ultimate consumer; rather, the warning Drug, Inc. v. Cornish, that if the doctor tions on direct-to-consumer advertis- must be conveyed to an intermediary is properly warned of the possibil- ing of prescription drugs. Since then, who will relay this warning to the ity of a side effect in some patients, the amount of money the pharmaceu- ultimate consumer. Take, for exam- and is advised of the symptoms nor- tical industry spends on advertising ple, a manufacturer and supplier of mally accompanying the side effect, has risen to billions of dollars annu- bulk products. In Hoffman v. Houghton there is an excellent chance that injury ally. This has prompted some states to Chemical Corp., the court adopted what to the patient can be avoided.18 An recognize an exception to the learned is known as the “bulk supplier doc- overwhelming number of jurisdictions intermediary doctrine for direct-to- trine,” which can be an affirmative have adopted this learned intermedi- consumer advertising situations. defense in products liability/duty to ary doctrine.19 While drug manufacturers formerly warn cases.15 Bulk suppliers and man- The learned intermediary doctrine is advertised to patients only through ufacturers should be able to rely on the an exception to the rule that the manu- their prescribing physician, they now intermediary’s own obligation to pro- facturer must take all reasonable steps to directly advertise products to consum- vide safety measures and warnings for provide warnings directly to a product’s ers on the radio, television, the Internet, the ultimate users. The bulk supplier ultimate user.20 Learned intermediaries, billboards, on public transportation, must supply adequate warnings to the such as doctors and nurse practitioners, and in magazines.30 Some courts have intermediary and ensure that reliance stand between the manufacturers and held that mass marketers of prescrip- on the intermediary is reasonable. The the product user and make the deci- tion drugs should not be insulated supplier is permitted to discharge its sions as to what medicines the user from their duty to warn consumers duty to warn in a practical and respon- should take. Thus, the manufacturer’s directly when they seek to influence a sible way that equitably balances the duty to inform consumers runs through patient’s choice of drugs through mar- realities of its business with the need the physicians, not directly to the con- keting.31 In Perez v. Wyeth Laboratories, for consumer safety.16 sumer.21 The intermediary makes an for example, the court held that the The bulk supplier doctrine should individualized decision, weighing the learned intermediary doctrine does not be extended to prescription drug man- potential harms and benefits, based apply to direct-to-consumer situations ufacturers. Prescription drug manu- on the intermediary’s knowledge and because consumers are active partici- facturers sell large amounts of their experience of both the patient and the pants in their health care decisions, product and the product is the same product.22 Prescription drugs are likely invalidating the concept that it is the regardless of the buyer. While the to be complex and their effects on users doctor, not the patient, who decides manufacturer is not absolved of its can be varied.23 Because only a medical whether a drug or device should be duty to convey adequate warnings, it professional can take into account the used.32 is allowed to rely on an intermediary propensities of the drug, as well as the Due to these changes in prescrip- to make a risk/benefit analysis and individual characteristics of the user, tion drug marketing (as noted in recommend to the ultimate consumer the manufacturer is required to warn Perez33), the Supreme Court of West which drug should be taken. It is likely only the prescribing physician.24 The Virginia became the first state court to that an ordinary consumer would not prescribing physician is then obligated reject the learned intermediary doc- have the expertise or knowledge to be to inform the patient of the benefits trine wholesale in State ex rel. Johnson able to comprehend the drug manu- and risks of the drug, and how those & Johnson Corp. v. Karl.34 The court in facturer’s warning. Since the typical benefits and risks compare to different Karl held that manufacturers of pre- user has insufficient knowledge and treatment or no treatment.25 scription drugs are subject to the same expertise to benefit from the warning, duty to warn consumers about the the manufacturer should be able to rely Exceptions in Prescription Drugs risks of their products as other man- on warning a learned intermediary to The learned intermediary doctrine ufacturers.35 The changing environ- satisfy its duty to warn. is an affirmative defense, which the ment has also affected the way courts defendant has the burden to prove; define a manufacturer’s duty to warn. The Learned Intermediary however, if an exception is applied, the For example, in Holley v. Burroughs Doctrine burden shifts to the plaintiff.26 Courts Wellcome Co.,36 the court extended the Many people argue that the most effec- have held there are a few exceptions scope of what constitutes an interme- tive way a manufacturer can warn the to the doctrine where the manufac- diary to include other medical person- consumer is through the consumer’s turer must warn the ultimate consum- nel that may be in a position to reduce doctor. The idea of limiting a drug er. Some of these exceptions include: or avoid risk of harm. This has been manufacturer’s duty to warn to the mass immunization programs,27 birth adopted by the Restatement (Third) doctor, rather than the general pub- control pills,28 and direct-to-consumer of Torts: Products Liability.37 There is lic, began with Stottlemire v. Cawood.17 advertising.29 no general rule for deciding whether

NYSBA Journal | October 2009 | 31 POINT OF VIEW a manufacturer has a duty to warn an argue that since manufacturers are the direct-to-consumer exception to intermediary or the ultimate user, but able to communicate with consumers the learned intermediary doctrine.45 certain factors should be considered through the advertisement, the manu- Courts deciding whether to apply the in making the determination of whom facturer will be able to communicate direct-to-consumer exception have all the manufacturer has a duty to warn.38 the warning to the patient. The mere elected to apply the learned intermedi- These include the gravity of the risks fact that the warning can be communi- ary doctrine, with no exception.46 posed by the product, the likelihood cated to the consumer, however, does the intermediary will convey the warn- not mean the typical consumer will Which States Apply the Learned ing to the ultimate user, and the feasi- understand the warning.41 Risks con- Intermediary Doctrine? bility and effectiveness of warning the nected to prescription drugs are likely Defendants in cases regarding pre- ultimate user directly.39 to be very complex, most often too scription drugs or medical devices can complex for the ordinary consumer to apply the learned intermediary doc- Rejecting the Doctrine in understand. If the ordinary consumer trine. In the prescription drug context, Direct-to-Consumer Advertising does not have the technical knowledge every state other than West Virginia, The justifications for the learned inter- or expertise to understand the warning, Rhode Island, and Vermont applies mediary doctrine were best summed then the warning is not of benefit to the some form of the doctrine (courts and up by the New Jersey Supreme Court: ultimate user.42 It is difficult to imagine the legislatures of Rhode Island and “(1) reluctance to undermine the doc- that including a warning of all reason- Vermont have not yet considered the tor-patient relationship; (2) absence ably foreseeable risks in a commercial learned intermediary doctrine).47 In in the era of ‘doctor knows best’ of or in a pamphlet will be an effective the medical devices context, 39 states need for the patient’s informed consent; way to warn the ultimate consumer. apply the learned intermediary doc- (3) inability of drug manufacturer The typical language in a warning is trine; 10 states have not had the oppor- to communicate with patients; and too scientific for an ordinary consumer tunity to decide whether to extend (4) complexity of the subject.”40 to understand. The manufacturer also the learned intermediary doctrine

A doctor or other learned intermediary would be able to choose what warnings are necessary and what warnings are frivolous concerning a particular patient.

Advertising prescription drugs direct- runs the risk of desensitizing the user. to devices.48 Only West Virginia has ly to the consumer undermines only As manufacturers add line after line rejected applying the doctrine.49 two of the four justifications; however, to warnings, it is easy to lose sight manufacturers engaging in direct-to- of the label’s communicative value Tort Reform Abolishing the consumer advertisement generally can as a whole.43 Attempts to warn of Learned Intermediary Doctrine escape liability by warning an inter- every possible risk can lead to volumi- New York has, however, begun consid- mediary. nous and yet impenetrable labels – too ering replacing the learned intermedi- Advertising directly to the consum- long-winded to read and too techni- ary doctrine with a duty to warn the er does undermine the doctor-patient cal to understand.44 A doctor or other ultimate user when direct-to-consumer relationship and create a need for the learned intermediary would be able to advertising is used.50 Other states have patient’s informed consent; the patient choose what warnings are necessary considered a similar reform51 and more becomes a more active participant in and what warnings are frivolous con- will likely consider it as well. the relationship by initiating the concerning a particular patient. The drafters of the New York bill versation with the doctor about the Because there is not an effective or recognize that direct-to-consumer course of treatment. The doctor may feasible way for prescription drugs advertising can have adverse effects on be more willing to prescribe the drug to convey adequate warnings to the the public due to misinformation. In a that the consumer has chosen, because ultimate user in a beneficial way, most poll cited by the bill drafters, 43% of he or she knows the patient wants states have not adopted an exception individuals polled believed only com- that treatment. Therefore, the patient to the learned intermediary doctrine pletely safe drugs could be advertised should have all of the information in for direct-to-consumer advertising. and 21% thought only extremely effec- order to make an informed decision. The exception was formerly wide- tive drugs could be advertised.52 Proponents of the exception to the spread, but since Perez was decided no Advertising makes the patient a learned intermediary doctrine can court (besides New Jersey) has applied more active part of the doctor-patient

32 | October 2009 | NYSBA Journal POINT OF VIEW calculation, and the bill’s drafters advertising will not take the doctor out claim that it is the cost of advertising claim the patient who demands an of the equation.54 Doctors have a duty that drives up the cost of medicine.57 advertised drug receives that drug 73% to warn their patients of the risks of the However, costs included in civil liti- of the time (although the drafters do medicine they prescribe, independent gation are likely to be much higher not cite where they got this statistic). of the duty they have under the learned than a company’s advertising costs. They also say that allowing a prescrip- intermediary doctrine, notes Professor Eliminating the learned intermediary

Drug manufacturers would likely be forced to raise drug costs more with a direct-to-consumer exception in place. tion drug manufacturer the benefit Bernabe. Manufacturers would not stop doctrine will eliminate a defense for of the learned intermediary doctrine providing warnings to doctors, and doc- the manufacturer. Manufacturers could would allow the manufacturer to hide tors would not stop conveying warnings expect not only more lawsuits but also behind the physician whose role it has to patients.55 But not every patient will more adverse judgments. usurped.53 They are worried that drug need to be warned about every risk, The cost of providing a full and manufacturers will increase drug costs and a consumer reading a warning comprehensible warning to the patient to pay for increased advertising costs, containing every foreseeable risk may and the cost of increased lawsuits and although one could argue that drug be unreasonably deterred from using adverse judgments must be added to manufacturers will have to increase the drug. Bernabe’s argument ignores the cost of manufacturing the drug to drug costs to pay for increased civil the possibility that patients will place understand the increased costs caused liability costs. too much emphasis on the risks enu- by the reform. Thus, drug manufactur- The most common criticism of merated in the manufacturer’s warn- ers would likely be forced to raise drug creating an exception to the learned ings and too little on the benefits the costs more with a direct-to-consumer intermediary doctrine is that it takes doctor conveys to the patient. exception in place. Proponents of the the most knowledgeable person out Proponents of reform claim that exception are attempting to fix a prob- of the equation. The consumer would manufacturers should be able to clear- lem, but in reality they are increasing receive all of the information about ly communicate a more comprehen- the problem exponentially. a product and make the decision sive warning. They reason that if the Another issue is that an exception to whether to use it in the absence of the manufacturer can convey an adver- the learned intermediary doctrine will doctor. Proponents of reform claim tisement to the consumer it should be encourage forum shopping. Plaintiffs that the doctor will continue to warn able to convey a warning to the same will always try to bring suit in a juris- patients but that consumers will be consumer. The flaw is that advertise- diction that has an exception for direct- able to supplement the doctor’s warn- ments are much easier to understand to-consumer advertising. Many pre- ing with the one from the manufac- than scientific warnings. A warning is scription drug products liability suits turer. Assuming an adequate warning not effective simply because it is com- turn into class-action suits, and juris- reaches and is read by a patient (let municated. If the consumer does not dictions having the exception will be alone understood by him or her), one understand a warning, then he or she more attractive to these litigants. One likely result would be confusion, fear, has not benefited from the warning.56 example is the Vioxx litigation in 2004, and the unreasonable rejection of an Therefore it is likely that requiring where a law firm sent out letters to appropriate medical treatment. The manufacturers to convey their warn- get all potential clients to bring their consumer may focus on the risks of ings directly to the consumer will lawsuits against Vioxx in New Jersey the product and discount the very nar- result in the consumer having less because of the state’s lenient products row probability that harm will actually understanding of the risks of a pre- liability laws.58 occur. Thus, the warning should be scription drug than when the warning Finally, patients should get infor- provided to the learned intermediary; is conveyed by the doctor, who has mation about prescription drugs from only he or she has the knowledge and received it from the manufacturer. their doctors, because they may be expertise to make the correct risk/ more likely to follow warnings that benefit analysis for each individual The Exception Should Be Rejected their physicians provide rather than patient. Increased liability would drive up the warnings a company provides. Professor Alberto Bernabe of John cost of health care and deter the devel- Marshall Law School argues, however, opment and production of helpful Conclusion that eliminating the learned interme- medicines. Proponents of the exception The learned intermediary doctrine diary doctrine in direct-to-consumer to the learned intermediary doctrine is an important concept in products

NYSBA Journal | October 2009 | 33 POINT OF VIEW

liability law, especially when prescrip- diary doctrine to create a direct-to- 38. Id. tion drugs are being considered. Ever consumer exception. ■ 39. Id. since the FDA eased its regulations on 40. Perez v. Wyeth Labs., 734 A.2d 1245, 1255, 161 N.J. 1 (1999). prescription drug advertising in 1997, 1. Restatement (Second) of Torts § 388. 2. For example, New Jersey in 1999, West Virginia 41. Persons v. Salomon N. Am., Inc., 265 Cal. Rptr. there has been an evolution in the in 2007, California in 2008, New York in 2009. 773, 777, 217 Cal. App. 3d 168 (1990). way drug manufacturers do business 3. See, e.g., N.Y. State Assembly, Bill No. 42. Id. – specifically concerning advertising. A05201, available at http://assembly.state.ny.us/ 43. Hood v. Ryobi, 181 F.3d 608, 611 (4th Cir. 1999). This increase in drug advertisements leg/?bn=A05201. 44. Id. 4. Liriano v. Hobart Corp., 92 N.Y.2d 232, 677 has created many new issues, one of 45. See, e.g., Colacicco v. Apotex, Inc., 432 F. Supp. 2d N.Y.S.2d 764 (1998). 514, 547 n.30 (E.D. Pa. 2006), judgment vacated, 129 S. which is whether the drug manufac- 5. Tingey v. Radionics, 193 Fed. Appx. 747 (10th Cir. Ct. 1578 (2009); In re Meridia Prods. Liab. Litig., 328 F. turer should still be able to satisfy its 2006); Restatement (Second) of Torts § 402A, cmts. Supp. 2d 791, 812 n.19 (N.D. Ohio 2004), aff’d, 447 j, k. duty to warn the consumer by provid- F.3d 861 (6th Cir. 2006); Beale v. Biomet, Inc., 492 F. 6. See, e.g., Thomas v. Hoffman-LaRoche, Inc., 949 Supp. 2d 1360, 1376 (S.D. Fla. 2007). ing the physician with an adequate F.2d 806, 813 (5th Cir. 1992); Restatement (Third) 46. Beale, 492 F. Supp. 2d at 1376. warning. Products Liability § 6(d). 47. See Drug and Device Law, Headcount II: The Some argue that advertising direct- 7. Madsen v. Am. Home Prods. Corp., 477 F. Supp. 2d Learned Intermediary Rule and Medical Devices, 1025, 1035 (E.D. Mo. 2007). available at http://druganddevicelaw.blogspot. ly to the consumer undermines many 8. Restatement (Third) Products Liability § 6(d). com/2008/07/headcount-ii-learned-intermediary- of the justifications for the learned 9. Thomas, 949 F.2d at 814; Motus v. Pfizer Inc., 358 rule.html. intermediary doctrine and that it is F.3d 659, 661 (9th Cir. 2004). 48. See id. not fair for the manufacturers to spend 10. Eck v. Parke, Davis & Co., 256 F.3d 1013, 1021 49. See State ex rel. Johnson & Johnson Corp. v. Karl, 647 S.E.2d 899, 220 W. Va. 463 (2007). money on advertisements and pass the (10th Cir. 2001). 11. Restatement (Second) of Torts, § 388, cmt. n. 50. N.Y. State Assembly, Bill No. A05201, available costs onto the consumer in the form 12. Persons v. Salomon N. Am., Inc., 265 Cal. Rptr. at http://assembly.state.ny.us/leg/?bn=A05201. of higher prices. However, the most 773, 777, 217 Cal. App. 3d 168 (1990). 51. For example, New Jersey in 1999, West Virginia important justification for keeping the 13. Id. at 778. in 2007, California in 2008. 14. Id. at 779. 52. N.Y. State Assembly, Bill No. A05201, available learned intermediary doctrine in place at http://assembly.state.ny.us/leg/?bn=A05201. 15. 751 N.E.2d 848, 434 Mass. 624 (2001). is that it is not feasible that manufac- 53. Id. 16. Id. at 857. turers can provide effective warnings 54. Torts, Comment on a Bill That Would Eliminate 17. 213 F. Supp. 897, 899 (D.D.C. 1963). that are comprehensible to the average the Learned Intermediary Doctrine, available at http:// 18. Sterling Drug, Inc. v. Cornish, 370 F.2d 82, 85 (8th bernabetorts.blogspot.com/2009/05/comment-on- user. If the user does not understand Cir. 1966). bill-that-would-eliminate.html. the complex warnings, then the warn- 19. Pumphrey v. Bard, 906 F. Supp. 334, 338 (N.D. 55. Id. W.V. 1995). ing is not beneficial and serves no 56. Persons v. Salomon N. Am., Inc., 265 Cal. Rptr. 20. Vitanza v. Upjohn Co., 778 A.2d 829, 836, 257 773, 777, 217 Cal. App. 3d 168 (1990). purpose. An exception to the learned Conn. 365 (2001). 57. N.Y. State Assembly, Bill No. A05201, available intermediary doctrine for situations 21. David G. Owen, Products Liability Law 630 at http://assembly.state.ny.us/leg/?bn=A05201. (West, Thomson Reuters 3d ed. 2008). in which the manufacturer advertises 58. Letter, Re: Vioxx Litigation, available at http:// directly to the consumer would take 22. Reyes v. Wyeth Labs., 498 F.2d 1264, 1276 (5th Cir. druganddevicelaw.net/Vioxx%20forumshopping 1974). the most knowledgeable person out of %20letter.pdf. 23. Id. the equation. The multitude of warn- 24. Id. ings, which are not applicable to every- 25. Owen, Supra note 21, at 631. body, will likely confuse and scare the 26. Ebel v. Eli Lilly & Co., 536 F. Supp. 2d 767, 782 Find us on the Web! average user, perhaps deterring that (S.D. Tex. 2008), aff’d, 321 Fed. Appx. 350 (5th Cir. 2009). person from taking a potentially use- 27. See Davis v. Wyeth Labs., Inc., 399 F.2d 121, 131 Just a click away: ful medicine. And, the price of drugs (9th Cir. 1968). The NYSBA Journal is available to you anytime at all. will likely rise to cover the costs of 28. See MacDonald v. Ortho Pharmaceutical Corp., 475 Log in as a member: increased litigation. N.E.2d 65, 394 Mass. 131 (1985). Membership gives you access to current issues and the 29. Perez v. Wyeth Labs., 734 A.2d 1245, 161 N.J. 1 Journal archive on HeinOnline. The archive offers the Advertising prescription drugs (1999). Journal in a word-searchable format, beginning with the first issue in 1928. directly to the consumer does change 30. Id at 1247. many parts of the relationship between 31. Id. Find an article: Our word-searchable index lists all Journal articles from the manufacturer, doctor and patient. 32. Id. at 1260 (quoting Susan A. Casey, Comment, 2000 through present. However, the changes do not justify Laying an Old Doctrine to Rest: Challenging the Wisdom of the Learned Intermediary Doctrine, 19 Wm. Mitchell Let us know: an exception to the learned interme- L. Rev. 931, 956 (1993)). Comment on any article you’ve read, topics you’d like diary doctrine. The exception to the 33. Id. at 1247 addressed or the issues facing today’s practitioners through the editor’s blog. learned intermediary doctrine does 34. 647 S.E.2d 899, 220 W. Va. 463 (2007). The Journal at www.nysba.org/barjournal. little more than hurt the patients it 35. Id. at 914. purports to protect. Therefore state 36. 330 S.E.2d 228, 74 N.C. App. 736 (1985), aff’d, The Editor’s blog at 348 S.E.2d 772, 318 N.C. 352 (1986). http://nysbar.com/blogs/barjournal/. legislatures should reject any mea- 37. Restatement (Third) Products Liability § 2(c), Click on “comments.” sures to reform the learned interme- cmt. i.

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PAUL BENNETT MARROW ([email protected]) is an attorney and arbitrator. He practices in Chappaqua, N.Y. He is a member of panels for the AAA, ADR Systems, NAM, and FINRA. He is a Fellow (FCIArb) of the Charter Institute of Arbitrators, London, England.

Counsel, Beware

n July 19, 2009, a tsunami to deny consumers an assortment of tors, evidencing rubber-stamping of swept over the consumer essential rights – jury trials, class action the demands of credit card companies. Ocredit market, washing many status, discovery, to name a few – all to NAF refuted the claim, pointing out potential claims out of arbitration and the benefit of the credit card and tele- that in the vast majority of the cases into the courthouse. On that day the com companies. In large measure, the in question the debtor had defaulted, National Arbitration Forum (NAF), focus of their discontent has been NAF, leaving the arbitrator no choice but to under pressure from the Minnesota which became the largest provider in recognize the claims. NAF maintained State Attorney General, announced the United States of consumer arbitra- that identical results would have been that it was withdrawing from the field tion services as a result of its claims of achieved had the forum been the court- of consumer credit arbitration, effec- absolute neutrality. These consumer house. tive July 24. It will, however, con- groups point to an assortment of NAF In the spring of 2008, the San Fran- tinue to administer credit matters filed actions that, they say, suggests (at the cisco City Attorney brought an action before July 24, 2009. On July 27, 2009, very least) an appearance of partiality: against NAF and two of its clients in the American Arbitration Association • NAF solicits credit card compa- the Superior Court in San Francisco,2 (AAA) announced a self-imposed nies, and others, urging them to claiming violations of numerous Cali- moratorium applicable to any new designate NAF as the forum for fornia consumer laws such as the Cali- consumer credit cases brought by a arbitration; fornia Fair Debt Collection Practice creditor. The impact will be felt for • NAF unilaterally creates the rules Act,3 as well as claims for unfair and years to come. for the administration of arbitra- deceptive marketing practices. The In the short term decisions will need tion; relief sought was a permanent injunc- to be made quickly about how best • NAF charges the credit card com- tion, substantial fines and costs. For to resolve the literally thousands of panies, and others, fees for pro- the most part, the factual statements potential disputes already contracted cessing claims against consumers; in the complaint track those laid out to proceed before the NAF and AAA. and in the Public Citizen report, described A parallel concern should be the devel- • NAF pays the arbitrators it above. One of the client-defendants opment of strategies about how best to assigns to resolve a dispute. has settled, agreeing in effect not to draft consumer agreements to account NAF has therefore been the target use NAF for arbitration within Cali- for the forthcoming shift from private of numerous private lawsuits seeking fornia without the consent and super- justice to the courthouse. to establish the existence of a direct vision of the city attorney. NAF and In this article we will examine just a connection between NAF and the com- the remaining client defendant have few of the many likely scenarios, with panies NAF serves and, worse yet, the continued to fight the claims. an eye toward preparing clients and attorneys representing these institu- Meanwhile the Minnesota State attorneys alike for the resolution of a tions before NAF arbitrators. None of Attorney General opened an investiga- class of disputes that will no longer be these efforts has yielded conclusive tion into the activities of NAF and a candidates for resolution by arbitration. proof of partiality and wrongdoing by group of companies that NAF works NAF. with closely in providing arbitration What This Is All About In September 2007, the Washington services to clients of NAF. The attorney For years consumer groups have D.C.–based Public Citizen released general had jurisdiction because all objected to the practice of many credit a report titled “The Arbitration Trap: the targets were entities formed under card companies and telecom providers How Credit Card Companies Ensnare Minnesota law and had their principal of imposing, by way of adhesion, man- Consumers.”1 Relying on disclosures places of business offices at the same datory arbitration on customers. These by NAF mandated by California law, address in Minneapolis. On July 10, groups believe that mandatory arbitra- the report claimed to have identified 2009, an action was commenced in tion is “lawless,” rigged, and designed a pattern of behavior by NAF arbitra- the district court in Hennepin County

36 | October 2009 | NYSBA Journal seeking relief similar to that being the viability of the Financial Industry Moreover, there aren’t many other sought by the San Francisco City Regulatory Authority (FINRA) pro- providers of arbitration administration Attorney. Many of the recited factual grams. Both of these bills are, at the equipped to handle these claims, espe- allegations also track the Public Citizen time of this writing, still in committee. cially if the volume is substantial. report. But, in addition, the attorney Thus, even if the pending bills don’t Similarly, if you represent clients general claimed to have uncovered become law, at least in matters involv- who receive notice of the commence- a web of connections suggesting ing credit cards and other forms of ment of an arbitration proceeding, you that NAF was anything but impar- consumer credit previously addressed need to immediately determine if the tial because it is partially owned by by NAF and AAA, mandatory arbitra- matter involves consumer credit and a group of attorneys who regularly tion is, for the foreseeable future, dead the provider is either the NAF or the represent the credit card claimants in in the water. AAA. If the answer to both questions proceedings before NAF arbitrators. is yes, NAF is now obligated to refuse Within a week NAF, while not admit- What the Practitioner Needs to accept the matter, and the AAA sim- ting any wrongdoing, entered into a to Consider ply will refuse. Still, the claimant may stipulation of settlement and agreed Attorneys representing parties with attempt to initiate arbitration before to withdraw from the consumer credit existing contracts providing for man- another provider, in which case care- arbitration business, nationwide, effec- datory arbitration need to immediate- ful thought has to be given to whether tive July 24. There is no doubt this ly review these agreements to decide your client’s consent is required. If it agreement will result in a flood of how best to counsel their clients. is, your client may be in good position

Claimant may attempt to initiate arbitration before another provider, in which case careful thought has to be given to whether your client’s consent is required. new cases appearing in courthouses Practitioners currently considering to bargain for favorable settlement. If around the country. According to the including such a clause in a consum- an immediate settlement isn’t possible, complaint4 filed by the attorney gen- er contract, employment contract or thought should be given to the appro- eral, in 2006 NAF processed 214,000 agreement involving a franchise, need priateness of a court proceeding to stay consumer debt collection arbitration to carefully consider the advisability the arbitration. claims across the United States. of doing so given the actions of NAF The inquiry should not stop at con- While all of this was going on, and the AAA, as well as the possibility sumer credit. The stipulation that the bills have been introduced into the that Congress may pass the Arbitration NAF has agreed to covers “Consumer U.S. House of Representatives5 and Fairness Act at some point in the rela- Arbitration,” defined as “any arbitra- the Senate6 designed to curb man- tively near future. Particular attention tion involving a dispute between a datory arbitration. While the details needs to be given to agreements involv- business entity and a private indi- differ, both bills would render any pre- ing employment, discussed below. vidual which relates to goods, services, dispute mandatory arbitration clause or property of any kind allegedly pro- unenforceable, no matter when entered Consumer Credit vided by any business entity to the into, if found in a contract involving First, there are literally tens of millions individual, or payment for such goods, a consumer, employment or franchise of contracts for credit cards and other services, or property. The term includes transaction. The Senate version also forms of consumer credit requiring any claim by a third party debt buyer includes any dispute arising under the mandatory arbitration. If you represent against a private individual.”8 U.S. Constitution, any state constitu- a potential claimant, the first question tion or any federal or state law involv- would be whether the clause requires Employment, a Special Situation ing discrimination on the basis of race, arbitration before either the NAF or the Both bills before the Congress would sex, disability, religion, national origin, AAA. If the answer is yes, the client is bar enforcement of a mandatory arbi- or any invidious basis in education, going to have to look someplace else if tration clause in any employment employment, credit, housing, public arbitration is still desired, and it may agreement, without concern for the accommodations and facilities, voting, not be easy to substitute another pro- relative bargaining positions of the or program funded or conducted by the vider. Unless the clause gives the client parties or when an agreement was federal government or any state gov- the exclusive right to select an alternate entered into. This may prove prob- ernment. Neither bill defines precisely provider, a provision that at present is lematic for lawyers representing high- what is meant by a consumer agree- probably not unconscionable,7 consent earning individuals. ment giving rise to questions about by each respondent will be required.

NYSBA Journal | October 2009 | 37 Studies have shown that high earn- that an existing clause mandating arbi- 2. Case no. cgc-08-473569 available at www. ers prefer arbitration because they tration may also be unenforceable. webaccess.sftc.org. believe that they are more likely to 3. Cal. Civ. Code §§ 1788 et seq. prevail in an arbitration than before Conclusion 4. District Court, 4th Judicial District, County of a jury.9 Those individuals are almost The ability to insist on pre-dispute Hennepin, Minnesota, Civ. 27-09-18550, par. 3. always represented by counsel when mandatory arbitration is likely to be 5. H.R. 1020, 111th Congress (2009), available at negotiating an employment contract, limited with the result that both coun- Thomas.Loc.gov. so there is almost never a question sel and clients need to review exist- 6. S. 931, 111th Congress (2009), available at about sophistication and/or equal- ing agreements involving consumer, Thomas.Loc.gov. ity in bargaining power. But the bills employment and/or franchise transac- 7. Sablosky v. Edward S. Gordon Co., 73 N.Y.2d 133, under consideration fail to recognize tions with an eye toward finding other 538 N.Y.S.2d 513 (1989); 1210 Colvin Ave., Inc. v. Tops Markets, 30 A.D.3d 995, 816 N.Y.S.2d 639 (4th Dep’t this reality, with the result that this ways to resolve disputes. Whether this 2006). class of individuals is lumped together wave of change will improve access to 8. Consent Judgment, Court File No. 27-CV-09- with all other employees and is denied justice is something that only time will 18550, District Court,4th Judicial District, Hennepin the right to negotiate a pre-dispute tell. For the moment, counsel’s job is County, Minn., pp. 1–2; see press release re settle- mandatory arbitration provision. If to be aware of the new limitations and ment, the Office of Attorney General Lori Swanson, you represent a high earner in a con- keep clients advised of the rapidly available at www.ag.state.mn.us. tract negotiation, you need to explain changing nature of the landscape. ■ 9. Stewart J. Schwab & Randell S. Thomas, An this to the client and explore with him Empirical Analysis of CEO Employment Contracts: What Do Executives Bargain For?, 63 Wash & Lee L. or her other alternatives for dispute 1. Available at www.citizen.org/publications/ release.cfm?ID=7545. Rev. 231, 238 (2006). resolution. And you need to point out

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38 | October 2009 | NYSBA Journal The latest NYSBA Monograph Series © 2008 Business/Corporate Mortgages Law and Practice Authors: Bruce J. Bergman, Esq.; Christopher P. Daly, Esq. Authors: Michele A. Santucci, Esq.; Professor Leona Beane; 2008-2009 • 246 pp. • PN: 41388 Richard V. D’Alessandro, Esq.; Non-Mmbr Price: $80 / Mmbr Price: $72 Professor Ronald David Greenberg 2008-2009 • 832 pp. • PN: 40518 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.; Dan M. Blumenthal, Esq. 2008-2009 • 158 pp. • PN: 40648 2008-2009 • 108 pp. • PN: 4169 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.; 2008-2009 • 200 pp. • PN: 42388 Arlene Harris, Esq. Non-Mmbr Price: $80 / Mmbr Price: $72 2008-2009 • 186 pp. • PN: 41968 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. 2008-2009 • 344 pp. • PN: 40378 2008-2009 • 318 pp. • PN: 40828 Non-Mmbr Price: $80 / Mmbr Price: $72 Non-Mmbr Price: $80 / Mmbr Price: $72

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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: PUB0569 PRESENTATION SKILLS FOR LAWYERS BY ROBERT LANE AND BRUCE A. OLSON

Winning at Trial With a Dynamic PowerPoint Presentation

lot is at stake – power, money, my PowerPoint show, though, I was ware’s linear design worked well for reputation, future plans, jus- stuck. All I could do was talk loudly sequential, predictable messages such A tice. You need to win this case. as opening and closing Your presentation materials surely will arguments, but I hadn’t play an important role in helping the learned a way to use judge and jury experience the sights, it to address unpredict- sounds, and details of the case . . . able events like sleeping or not. The choice is up to you, says jurors. Situations like one tech-savvy attorney. It all depends that don’t fit into con- upon whether you are willing to venient little predictable push PowerPoint1 beyond its normal boxes. They are messy boundaries to maximize its interactive and random – and most and persuasive potential. aspects of litigation are like that. How could This Wasn’t Part of the Plan PowerPoint possibly On a crisp winter’s day, Bruce climbed Figure 1 address such complex- the courthouse stairs and walked ity?” toward his assigned courtroom, a ritu- al he had repeated many times before and click rapidly through the slides to Hey, It’s Not Like That on TV! throughout his career as a trial lawyer. get to the end so I could re-engage the “Another factor caused me to further Soon a jury would hear opening state- jury’s interest. worry about PowerPoint’s appropri- ments. Bruce was well prepared, as ”While I was generally a fan of ateness to litigation, a phenomenon I usual, to walk them through a carefully PowerPoint, it clearly had its limita- refer to as the ‘CSI effect.’ Movies and arranged PowerPoint presentation – a tions in court, or so I’d been led to television shows like CSI condition typical series of linear slides summa- believe. As a result, I always exercised us to expect visual clues on a regular rizing the case. Everything seemed in caution when using it at trial. The soft- basis to help fill in information gaps. order and under control. That’s when a surprise hit. Bruce: “We’d picked a jury in the morning, and opening statements ROBERT LANE ([email protected]) is a U.S.-based presentation consultant specializing started after lunch. I’d made it partway in visually interactive communication theory and is the author of Relational Presentation, a Visually through my opening when I realized Interactive Approach. His Web site, www.aspirecommunications.com, features free demonstration video I was starting to lose the jury – they clips, tutorials, guides, and other resources that further explain the concepts discussed in this article. were dozing off. Opening after lunch is always difficult. To wake them up, BRUCE A. OLSON ([email protected]) is President of ONLAW Trial Technologies, LLC, a consulting I really needed to move up the most firm offering trial technology, eDiscovery, and computer forensic services. A trial attorney and nation- important slides from the end where ally recognized legal technologist, Olson received the prestigious “TechnoLawyer of the Year 2002” I’d initially placed them for a strong Award, from TechnoLawyer, and was Chair of ABA TECHSHOW 2004, Vice Chair of ABA TECHSHOW finish. I also needed to drop a number 2003, and served on the TECHSHOW Board of Directors from 2000–2004. of slides on the fly to shorten the presentation. Given the way I’d structured

40 | October 2009 | NYSBA Journal Suddenly we are taken back in time to and between, slide see a gunshot, hear a victim’s scream, shows. Before long, get a zoomed-in view of a blood speck and using nothing on a carpet, or a thousand other timely more than stan- bits of information needed to solve the dard PowerPoint mystery of how the crime was commit- software, he could ted. Those clues allow us to mentally approach jurors piece together what really happened. with a highly flexi- “Granted, such television dramas ble, interlinked col- have little relationship to real life, lection of about 200 but that doesn’t seem to matter with slides. Any topic many jurors these days. They almost was displayable expect trial lawyers to act like CSI within seconds, in characters, pulling up just the right any order. Plus, Figure 2 pictures, video clips, and sounds, at content could be the right moments, to support their reviewed at a later points. Words alone are not enough. A time, or skipped subconscious thought demands: ‘Show altogether. it to me like they do on TV so I can Bruce: “It felt decide if he really did it or not.’ There a little strange at is a huge difference between rebut- first. Interactive de- ting an argument with a statement livery is quite dif- like ‘That’s impossible,’ compared to ferent from plow- ‘That’s impossible . . . and let me show ing through a fixed you why.’ The latter response taps into sequence of slides. a CSI expectation of seeing evidence You need to know when it’s most relevant. your content well “A lawyer who can’t satisfy this and get in the habit media-enhanced expectation to at least of asking yourself, some degree risks losing jurors’ inter- ‘Do I have a slide est and concentration. Just having that that can help me Figure 3 information gathering dust somewhere make this point or in a long slide show is not enough, answer that question?’ I had to give up shadows, the sun angle, anything that either. Details must be available at a the robotic dependency on PowerPoint might be distracting to motorists at moment’s notice, regardless of context, to spoon-feed me the next topic every that intersection. to provide jurors with what could turn time. The next topic was whatever I “Eventually, I end up with quite a out to be a pivotal clue. In that instant wanted it to be. It was a liberating. My few images. Certainly I could throw of relevant display, they realize, ‘Ah! presentation style gradually began tak- them all into a long, linear slide show Now that makes sense.’ ing on a more conversational, sponta- like everyone else, but there’s a bet- “Again, in the past I would have neous feel – which was fun. ter strategy. I want to have instant, thought, ‘PowerPoint for more than “Here’s an example of how the pro- individual control over which of these openings or closings? Are you kid- cess works, something you can do with pictures are shown, at the right time. ding?’ I have a different perspective your presentation materials, as well. That’s how I, and you, will simulate today.” Let’s say hypothetically I am represent- that CSI effect mentioned earlier.” ing a client in an automobile accident Adding Navigation Elements to injury case. Certain kinds of pictures A Look at Showcase Navigation Your PowerPoint-based Evidence might be very helpful, right? “One of the simplest, yet effective, The Need for Flexibility “I probably will want pictures of navigation styles I might choose for The change of perspective came while the vehicles involved: close-ups, full- this kind of content is a back-and-forth experimenting with PowerPoint’s built- views, various angles, inside and out- process Robert calls ‘Showcase naviga- in interactivity tools. By combining side perspectives. I need pictures of the tion.’ Here’s how it works. We’ll use shapes, pictures, and hyperlinks, Bruce accident scene: skid marks, damage to the same three categories of pictures created what are known as navigation plants or signs, security camera cap- mentioned above and turn them into styles – simple hyperlinking strategies tures, if available, and so forth. Pictures an interactive PowerPoint presentation that allow random movement within, of the environment might be helpful: as shown in Figure 4 (next page).

NYSBA Journal | October 2009 | 41 (Note that in eviden- groups, according to their focus. If a tiary situations where vehicle picture is needed, for example, showing the switch- the speaker can completely ignore the board’s thumbnails other two categories while searching. might be inappro- Such grouping strategies improve the priate, you can use efficiency of interactive presentation PowerPoint’s screen methods, reducing time spent moving blackout feature to between topics.” temporarily hide the display while making Building Showcase Navigation a selection.) Try converting some of your own “Of course, once content into Showcase navigation. To a particular picture do so, follow the steps below. For is displayed that’s more detailed instructions, there are Figure 4 not the end of the free Showcase navigation tutorials for story. The speaker both PowerPoint 2003 and PowerPoint 2007.2 Step 1: Make the (or open the existing) presentation. Step 2: If you are using an existing show, simply add a blank slide at the beginning to be the switchboard. If

Figure 6

building a new show, add a slide for each content topic and one additional slide for the switchboard. Note that a Figure 5 showcase presentation is a traditional linear slide show in all respects – except “Assume we have 8 pictures per must be able to immediately return to for the extra slide at the beginning and category – 24 in all. That means our the switchboard slide for additional the internal hyperlinks that allow ran- PowerPoint presentation must have a choices. So, the trick of how Showcase dom slide selection. total of 25 slides. We need one slide navigation works is to also link all Step 3: If your show contains pic- for each picture, and then one addi- the full-sized pictures back to slide 1. tures on its content slides, as in the tional special slide at the beginning That action completes the loop. While example above, place a copy of each of the show called a switchboard. That performing, a presenter first clicks a picture on slide 1 and downsize all the first slide (Figure 5) contains small thumbnail to display its picture con- pictures to be small images (thumb- thumbnail representations of the full- tent full-screen and then clicks that pic- nails: Figure 7). Arrange the thumb- sized pictures appearing on the show’s ture to again access the switchboard. nails on the slide as desired, ideally in remaining 24 slides. The thumbnails, The process can be repeated over and organized patterns. not surprisingly, link directly to their over again with as many pictures as Step 4: Hyperlink each thumb- respective picture slides, allowing desired. nail to its respective slide. Do so by the speaker to quickly find and dis- “Notice, too, that the thumbnails in right-clicking a thumbnail and choos- play any full-sized picture (Figure 6). Figure 4 are arranged on the slide in ing “Hyperlink” from the menu

42 | October 2009 | NYSBA Journal individual facts, answers to questions, and spontaneous points of interest. Consider that if you have 200 slides available, you might use only three on any given day. That’s OK. Or you might access 10 or 50. Be flexible and smart. Display relevant material – and only that material. Think of those slides as a visual vocabulary that can be spoken as needed, nuggets to be mined for maximum impact. You might as well become an expert at giving jurors the timely visual clues they want, because the CSI effect probably won’t disappear anytime soon. ■

1. Applies to PowerPoint 2007, PowerPoint 2003. 2. At http://www.aspirecommunications.com/ FreeTutorials.html.

Figure 7

at slide 1. Then click a thumb- MOVING? nail and verify that the proper let us know. slide comes into view. Click that Notify OCA and NYSBA of any changes slide’s content to your address or other record to return to the information as soon as possible! switchboard. Systematically OCA Attorney Registration check all links. PO BOX 2806 Church Street Station Figure 8 You should be able to go back New York, New York 10008 and forth with TEL 212.428.2800 that appears. Then on the “Insert ease. If any links do not perform as FAX 212.428.2804 Hyperlink” dialog box, click the “Place expected, end the slide show and edit Email [email protected] in this document” tab (Figure 8). Click the links accordingly. the appropriate slide number and then That’s all it takes to add interactivity New York State Bar Association click “OK” at the bottom of the dia- to your evidentiary displays. Various MIS Department log box. Repeat this process with the other navigation styles are possible One Elk Street remaining thumbnails. as well. Albany, NY 12207 Step 5: Once the switchboard TEL 518.463.3200 hyperlinks are in place, complete the Best Practices FAX 518.487.5579 return hyperlinks. Activate each slide Adding hyperlinks to a PowerPoint Email [email protected] in turn, right click its content picture, slide show is a relatively simple pro- and hyperlink the picture to slide 1. cess, but there’s more to interactivity When finished, all the content slides in the courtroom than just that. It’s should link back to slide 1. vitally important that you also change Step 6: Test the hyperlinks to make your entire way of thinking about pre- sure they work properly. Note that sentations. Rather than preparing slide hyperlinks are active only while in slide shows to be lectures progressing down show mode. So, start the slide show a line, think of them as collections of

NYSBA Journal | October 2009 | 43 E-DISCOVERY BY STEVEN C. BENNETT

Do Ask; Do Tell: Keyword Search Terms

lectronic documents are increas- suggest that such information must be ed Sedona Conference notes that the ingly reviewed for possible pro- shared with adversaries in litigation. amended discovery rules embody a Eduction using keyword search- This article surveys how the law has mandate for counsel to act cooper- ing, a process whereby computers emerged and suggests some of the atively. The Proclamation gives the seek out certain words and phrases, practical implications for the conduct example of “jointly developing auto- parts of words or words in proximity of e-discovery. mated search and retrieval methodolo- to other words in a document collec- gies to cull relevant information”6 as a tion.1 For litigators, cogent keyword The New Federal Rules means to this end. search strategy generally requires dis- An amended version of the Federal cussions with the client to determine Rules of Civil Procedure (FRCP) came Cases Applying the Rules what terms are most likely to retrieve into effect in December 2006. These Courts have increasingly begun to relevant information.2 Similarly, cli- new Rules specifically aim to resolve suggest that “[p]arties should make a ent consultation may be required to some of the most important issues good faith attempt to collaborate on help identify search terms that can, related to e-discovery. Rule 26(f)(3), in the use of particular search and infor- in turn, help identify portions of the particular, requires parties to discuss, mation retrieval methods, tools and document collection that may contain at the outset of a case, “the subjects protocols (including as to keywords, privileged or otherwise confidential on which discovery may be needed.”3 concepts, and other types of search information. Keyword searching also The Manual for Complex Litigation sug- parameters).”7 The recent opinion of may require some testing of the search gests that one part of that discussion Magistrate Judge Andrew J. Peck of the protocol against results; again, that should include an exchange regarding Southern District of New York, in the may involve lawyer discussions with “key words to be used in identifying case of William A. Gross Construction the client’s information technology responsive materials.”4 The Advisory Assocs., Inc. v. American Manufacturers personnel and perhaps discussions Committee Notes to the new Rules, Mutual Insurance Co.,8 began with this with an e-discovery service vendor. In moreover, emphasize that early dis- admonition: “This Opinion should sum, the e-discovery search strategy cussion of the discovery process “may serve as a wake-up call to the Bar in could reflect a great deal of attorney avoid later difficulties or ease their this District about the need for careful work and communications in close resolution.”5 A recent “Cooperation thought, quality control, testing, and consultation with the client and search Proclamation” by the highly respect- cooperation with opposing counsel in professionals. This type of information, regard- STEVEN C. BENNETT ([email protected]) is a partner at Jones Day in New York City and Chair ing the details of attorney strategies, of the firm’s E-discovery Committee. and (often) reflecting communications between attorney and client (or pro- STEPHEN F. KAMPMEIER ([email protected]), an associate at Jones Day and a member of fessionals working with the client) the firm’s E-discovery Committee, assisted in the preparation of this article. typically would be considered subject to privilege claims in litigation. Yet, The views expressed are solely those of the author and should not be attributed to the author’s firm new federal rules for electronic dis- or its clients. covery and the developing case law

44 | October 2009 | NYSBA Journal designing search terms or ‘keywords’ closure of relevant documents against a in recent opinions on the subject of to be used to produce e-mails or other strain on agency resources.”14 The SEC search, in practice the reluctance of electronically stored information.”9 refused that overture, instead choosing counsel in cases (perhaps even in the The producing party in the dispute its own means and methods in search- cases cited above) to reveal the details before Judge Peck proposed a narrow ing for responsive documents (which of their search efforts may, at least in set of search terms. The requesting it did not reveal to the defendant). part, reflect concern for privilege waiv- party proposed “thousands of addi- Ultimately, it produced no responsive er issues.18 Indeed, under the waiver tional search terms.”10 Judge Peck con- documents. Judge Scheindlin called rules in some jurisdictions, once privi- cluded that neither party had ade- the SEC refusal to negotiate a workable lege is waived on a portion of a given quately discussed appropriate search search protocol “patently unreason- topic, the entire “subject matter” is terms with the non-party who wrote able,” citing the requirements of FRCP open for inquiry without any ability most of the e-mails at issue. Thus, as Rule 26(f) that parties confer to create to claim the protections of privilege.19 Judge Peck noted, much judicial time a “discovery plan.”15 Judge Scheindlin These potentially dire consequences, and client money were spent cleaning went on to remark on the unnecessary however, almost certainly were not up a mess that could have been dis- costs, burdens and delays that resulted intended by the framers of the new cussed – and avoided. from failure to engage in cooperative Rules. Moreover, several legal theories Moreover, courts have expressly discovery practices. may be available to help reduce or disapproved the “don’t tell” approach eliminate the potential conflict. to formulating search terms. In Lapin Effects on Privilege Protection One broad theory, derived from v. Goldman, Sachs & Co.,11 the par- The foregoing Rules, citations, and cases where a court orders a party ties spent months fighting over search cases make clear that, under the new to reveal privileged information, is terms. The plaintiff claimed that the regime, parties (at least in federal liti- labeled the “compelled disclosure”

Much judicial time and client money were spent cleaning up a mess that could have been discussed — and avoided. defendant’s search term list was inad- gation) must talk to each other about doctrine.20 In the context of routine equate but refused to offer an alterna- the details of how they plan to conduct conferences between counsel in civil tive list. The court expressly rejected a keyword search for electronically cases (where no court order directly that approach: stored information. In theory, such compels revelation of particular infor- I direct Plaintiff to serve his own discussions could constitute waiver mation), the doctrine might be difficult list of search terms, and then the of attorney-client privilege, and/or to apply. A court might (in theory) be attorneys and their computer work product protection, regarding invited to order parties to reveal the experts must promptly hold a the details of how counsel (in collabo- details of their search strategies, such meeting with at least four hours ration with their client and consult- that the discussions would be consid- of discussion about proposals for ing professionals) formulated search ered “compelled,” but this seems an search terms. Among other things, terms, and how they refined (or omit- awkward (and probably inconsistent) 16 they should discuss (a) the esti- ted) terms from their list. Indeed, procedure. mated cost of the search and (b) the to the extent that counsel affirmative- New Rule 502 of the Federal Rules cost of a possible follow-up search ly assert that they have performed a of Evidence (FRE) (adopted in 2008), with a supplemental list of search reasonable search for information (or however, may offer more effective terms.12 supervised such a search by others), relief. Rule 502(b) generally provides they might, in theory, be required to that disclosure does not operate as a The discovery dispute in S.E.C. v. provide all the details regarding such waiver of privilege where the disclo- Collins & Aikman Corp.13 arose in the con- efforts.17 The result could be a catch-22, sure is “inadvertent,” the party dis- text of a large securities fraud case. The where counsel are “damned if they do” closing has taken “reasonable steps” defendant posed six requests for docu- (reveal confidential information about to protect privilege, and the disclos- ments to the Securities and Exchange searching) and “damned if they don’t” ing party takes reasonable steps, after Commission; the SEC objected. The (cooperate with adversaries regarding the disclosure, to “rectify the error.” defendant proposed that the parties search). That provision may offer little protec- “establish a search term protocol that Although this potential conflict tion, however, because in most cases, would balance identification and dis- has not yet been clearly articulated discussion of search strategies would

NYSBA Journal | October 2009 | 45 not be inadvertent, and the disclosing clearly reflects attorney advice preparations, moreover, can provide party probably would take no steps in and strategy. Legal memoranda or a strategic advantage in litigation. response to the disclosure. communications with clients on Thus, armed with complete informa- FRE Rule 502(a) contains a poten- legal obligations in discovery, for tion about data systems capabilities, tially more helpful provision on the example, should be labeled privi- and with a reasonable capacity for scope of privilege waivers. The Rule leged and treated as such by all response to the demands of litigation, states that a waiver “extends to an involved in a litigation team. a party is in the best position to nego- undisclosed communication” (i.e., to • Discuss the concept of an agree- tiate with adversaries and/or seek the broader subject matter on which ment with opposing parties necessary relief from a court. ■ a waiver has occurred) only if the regarding non-waiver of privilege waiver is “intentional,” the “disclosed as part of discovery negotiations. 1. See Steven C. Bennett, E-Discovery by Keyword Search, 15 Prac. Litigator 7 (2004). There is, today, and undisclosed communications or Consider also developing a specif- no such thing as a “perfect” search methodology information concern the same subject ic understanding as to the scope for every case. See Jason Krause, In Search of the matter,” and both disclosed and undis- of information to be exchanged as Perfect Search, A.B.A. J., Apr. 2009, available at www. abajournal.com/magazine. closed information “ought in fairness part of discovery negotiations. If 2. One resource that can help with client discus- to be considered together.” The “fair- the opposing parties refuse, make sions of discovery issues is available from the ness” point might be the savior for par- that subject an agenda item for Sedona Conference. See Jumpstart Outline: Questions ties who discuss some portion of their early discussion with the court. to Ask Your Client And Your Adversary to Prepare for • Preservation, Rule 26 Obligations, Court Conferences search methodologies but leave out In the event of motion practice or and Requests for Production, May 2008, available at the strategic reasons why their clients hearings on discovery disputes, www.thesedonaconference.org. may prefer one approach over another. avoid the use of counsel as wit- 3. Fed. R. Civ. P. 26(f)(3). Arguably, the waiver of privilege (if nesses on the substance of what 4. Federal Judicial Center, Manual for Complex there is any waiver) concerns only what discovery steps may have been Litigation, § 40.25(2) (4th ed. 2004). the parties did, not why they did it. taken. An attorney’s testimony, 5. Fed. R. Civ. P. 26(f), Advisory Committee Notes The real salvation is Rule 502(e), in most instances, will reflect a (2006). which generally recognizes that parties mixture of events observed, plus 6. See www.thesedonaconference.org/content/ tsc_cooperation_proclamation. may make “agreement[s] on the effect communications with clients and 7. Victor Stanley, Inc. v. Creative Pipe, Inc., 250 of disclosure” of information, and that consultants, plus attorney opinion F.R.D. 251, 262 (D. Md. 2008) (Grimm, M.J.) (refer- such agreements may be “incorporated and strategy. Once the attorney encing Sedona Conference best practices for search into a court order.” (If incorporated begins to testify, the barriers and information retrieval, and holding that effective search is required to preserve privileges). into an order of the court, such agree- between these categories may 8. 256 F.R.D. 134 (S.D.N.Y. 2009) (Peck, M.J.). ments also provide protection from crumble. 9. Id. at 134. claims of privilege waiver by parties Finally, because these kinds of in other proceedings.) Thus, for exam- “privilege versus full disclosure” 10. Id. ple, parties may enter into agreements problems may arise again and again 11. No. 04 Civ. 2236, 2009 WL 222788 (S.D.N.Y. Jan. 23, 2009) (Eaton, M.J.). to the effect that their discussions of for certain “perpetual litigants,” a 12. Id. at *2. search methodologies will not operate thorough review of a client’s informa- 13. 256 F.R.D. 403 (S.D.N.Y. 2009) (Scheindlin, J.). as a general waiver of privilege con- tion management processes will often 14. Id. at 414. cerning advice the attorneys may have prove helpful.22 Creation of a “data given their clients about the discovery map,” for example, often will permit 15. Id. 16. See In re Intel Corp. Microprocessor Antitrust process (or the merits of the litigation). greater ease of searching by identify- Litig., Civil Action No. 05-441-JJF, 2008 WL 2310288 Such agreements, moreover, may be ing where information is stored and at *16 (D. Del. June 4, 2008) (Farnan, J.) (waiver embodied in court orders, perhaps as who is responsible for it; establish- occurred regarding preservation issues when a party, through its attorneys, agreed to produce part of the initial Rule 16 conference ment of standard protocols for search- “detailed written description[s] of the preservation with the court.21 ing may permit more effective and issues affecting [every] Intel Custodian, including the nature, scope and duration of any preserva- efficient negotiations with adversaries tion issue(s)”). See generally 8 Charles Alan Wright, Practice Tips in the event of litigation.23 With such Arthur R. Miller & Richard L. Marcus, Federal In light of the concerns outlined above, preparation, moreover, counsel in dis- Practice & Procedure § 2016.2 (2nd ed. 1994 & Supp. 2009) (summarizing waiver issues). counsel may wish to take some or all of covery negotiations need only describe 17. Victor Stanley, Inc., 250 F.R.D. at 256 (finding the following precautions: the reasonable discovery steps avail- waiver, due to inadequacy of search for privileged • Carefully distinguish between able, based on the client’s prior efforts. information, where “[d]efendants are regrettably information that may be part of Counsel need not describe the per- vague in their description of the seventy keywords used . . . , how they were developed, how the search the normal “give and take” of dis- haps hours or days of legal advice was conducted, and what quality controls were covery negotiations with oppos- and communications that ultimately employed to assess their reliability and accuracy”). ing counsel and material that led to the client’s system. Appropriate This issue also arises where counsel attempt to use

46 | October 2009 | NYSBA Journal privilege as a sword and shield, or when counsel leged); but see Major Tours v. Colorel, Civ. No. 05-3091, disclosure in bankruptcy proceeding did not waive affirmatively inject issues into litigation. See CP 2009 WL 2413631 (D.N.J. Aug. 4, 2009) (hold notice privilege). Kelco U.S. Inc. v. Pharmacia Corp., 213 F.R.D. 176, 179 not privileged where spoliation alleged). 21. See Fed. R. Civ. P. 16(b) (requiring scheduling (D. Del. 2003) (“Having chosen to use the informa- 19. FMT Corp. Inc. v. Nissei ASB Co., No. 1:90-cv- conference early in the course of litigation, which tion offensively, any privilege Pharmacia might results in “scheduling order”). Courts are spe- 786-CTET, 1992 WL 240688, 24 U.S.P.Q.2d 1073, have claimed to defend the information from dis- cifically authorized, under the terms of the Rules, 1075 (N.D. Ga. June 10, 1992) (“[Defendant] must closure is, and remains, waived.”); Herrick Co., Inc. to “include any agreements the parties reach for produce to [plaintiff] not only the opinions upon v. Vetta Sports, Inc., No. 94 Civ. 0905 (RRP) 1998 WL asserting claims of privilege,” as part of the Rule 16 which [defendant] has chosen to rely, but also all 637468 at *2 (S.D.N.Y. Sept. 17, 1998) (law firm that process. See Fed. R. Civ. P. 16(b)(3)(B)(iv). other attorney communications on the same subject designated law professor as expert on legal ethics matter and all documents relied upon or considered 22. See Joshua Horn & Beth L. Domenick, Lessons waived the attorney-client privilege protection not by counsel at the time and in conjunction with Learned From ‘Creative Pipe,’ Corp. Couns., Aug. only for the communications between the law firm rendering that opinion.”); SEB, S.A. v. Montgomery 12, 2008, available at www.law.com (suggesting and the professor on which the professor relied, but “creation and institution of a document retention Ward & Co., Inc., 412 F. Supp. 2d 336, 349 nn.19 & also for other privileged communications relevant policy,” “creation of a standard form litigation 20 (S.D.N.Y. 2006) (patent infringer could not rely to his impeachment). hold,” development of a “protocol to identify and on two opinions and then fail to disclose a third segregate” privileged documents, and creation of a 18. For similar reasons, counsel in some cases on privilege grounds when all addressed the same system to “employ the ‘utmost care’ in selecting a have refused to produce “litigation hold” notices. subject matter). search and information retrieval methodology”). See Gibson v. Ford Motor Co., 510 F. Supp. 2d 20. See, e.g., Am. Nat’l Bank & Trust Co. of Chicago v. 1116, 1123 (N.D. Ga. 2007) (privilege necessary to 23. “The implementation of an efficient system of Equitable Life Assurance Soc’y, 406 F.3d 867, 877 n.5 encourage businesses to comply with hold obliga- records management before litigation may also be (7th Cir. 2005) (no waiver where magistrate judge tions); Capitano v. Ford Motor Co., 15 Misc. 3d 561, relevant” in determining whether a party took rea- ordered production); In re 50-Off Stores, Inc., 213 sonable precautions against inadvertent production. 831 N.Y.S.2d 687 (Sup. Ct., Chautauqua Co. 2007) B.R. 646, 656 (Bankr. W.D. Tex. 1997) (compelled FRE 502(b), Advisory Committee Notes (2008). (although relevant, hold notice found to be privi- A new member service of the New York State Bar Association: Career and Employment Resources for NY Attorneys Go to www.nysba.org/jobs for

Career Listings > Assigned Counsel (18B) Application Form for > Including private, state and federal positions New York State Courts > The Offi ce of Court Administration’s Volunteer NYSBA Committee on Lawyers in Transition Attorneys Program > Resources for attorneys re-entering the workforce to assist pro se litigants offers free training and Law Practice Management and Solo/Small Firm CLE credit Resources Law School Careers Centers > Guidance and CLE programming relating to the > Links to law school career center offerings workplace > Tools and assistance for those considering opening New York State Department of Labor their own practice > Links to the Department of Labor for unemployment and Lawyers Assistance Program job listing resources > Confi dential hotline access and resources for those facing stress management, time management and Networking Tools to maximize your opportunities drug or alcohol concerns > At www.nysba.org/LinkedIn start connecting to other NYSBA members Lawyer Referral Program > Lawyers in Transition blog > Listing of attorneys receiving client referrals from the > Go to www.twitter.com/NYSBA to follow Bar news New York State Bar Association or www.twitter.com to establish your own online Pro Bono, Public Service, Assigned Counsel and presence Volunteer Programs > Pro bono opportunities and the Empire State Counsel Career and Employment Resources for New York Attorneys are designation a member service of the New York State Bar Association. If you are not currently a member, please visit our Membership pages > Committee on Attorneys in Public Service – resources to learn more about how the NYSBA benefi ts its members and to for those seeking public service opportunities access an online membership application.

NYSBA Journal | October 2009 | 47 ATTORNEY PROFESSIONALISM FORUM

To the Forum: suit of justice and the public good. to be civil to lawyers, parties and wit- I have read your column for the last In the strictly legal sense, justice nesses and the duties of court person- two years. I must confess that I do not can mean the “proper administra- nel to the court, lawyers and litigants. tion of laws . . . to render every man have a clear understanding of the dif- This response cannot delve into these his due.” (Black’s Law Dictionary). ference between ethics and profession- Standards in detail. However, they But most would agree that justice alism. Where does civility fit into the necessarily implies more than the should be read and followed, and in picture? Thank you in advance. “rightness” or “wrongness” of a short they can be summarized by the Sincerely, given act, or strict compliance with old adage – treat others as you wish to Confused the black letter of the law. In the be treated. larger sense, pursuing justice con- The view here is that satisfaction Dear Confused: notes pursuing a morally “good” and enjoyment from the practice of On April 1, 2009, the Lawyer’s Code end. Attorneys must look beyond law are available to all of us, and the of Professional Responsibility was the short-term results and consider keys are simple: Obey the Rules of replaced with the New York Rules of the consequences of their actions Professional Conduct; and act profes- and advice. To conduct oneself in Professional Conduct. The new Rules sionally and with civility. this way will benefit the public at of Professional Conduct are based The Forum, by large – and to do the public good – on the American Bar Association’s must include dedication to provid- George J. Nashak Jr. Model Rules. The new rules can be ing pro bono services for the needy. Queens County, New York found in 22 N.Y.C.R.R. Part 1200, and they are the embodiment of ethics in The Committee offers guidance as New York. Violation of these rules to how we can exhibit professional- QUESTION FOR THE can result in punishment, the severest ism. NEXT ATTORNEY being disbarment. By exemplary ethical conduct: aspir- PROFESSIONALISM FORUM: Professionalism, on the other hand, ing to fulfill the spirit, not just is aspirational in nature. It refers to the requirements of the Code of I have been practicing law for 20 recommended conduct that will make Professional Responsibility [now years. I am admitted to practice in us better attorneys. Civility is part of the Rules]; professionalism. The New York State Bar Associa- By remaining competent: taking tion’s Committee on Attorney Profes- advantage of continuing legal The Attorney Professionalism Committee sionalism offers the following defini- education; keeping abreast of the invites our readers to send in comments tion of Attorney Professionalism: latest developments in our areas or alternate views to the responses of expertise; mentoring younger printed below, as well as additional Attorney Professionalism is ded- attorneys; hypothetical fact patterns or scenarios to ication to service to clients and be considered for future columns. Send By showing good judgment: pro- commitment to promoting respect your comments or questions to: NYSBA, viding good client service by for- of the legal system in pursuit of One Elk Street, Albany, NY 12207, Attn: mulating discerning opinions and justice and the public good, char- Attorney Professionalism Forum, or by advice based upon knowledge and acterized by ethical conduct, com- e-mail to [email protected]. petence, good judgment, integrity experience; This column is made possible through and civility. By acting with integrity: exhibit- the efforts of the NYSBA’s Committee on ing soundness of character, fidelity The Committee goes on to tell us Attorney Professionalism. Fact patterns, and honesty; that service to clients is the foundation names, characters and locations presented of professionalism. However, this rela- By demonstrating civility: behav- in this column are fictitious, and any resem- tionship is just one aspect of our role ing with courtesy and respect. blance to actual events or to actual persons, in the legal system. Our dealings with living or dead, is entirely coincidental. These fellow attorneys, judges, clerks, part- Now that brings us to civility, columns are intended to stimulate thought ners, associate attorneys, government which, as noted, is part of profession- and discussion on the subject of attorney agencies and legislators must promote alism. The Standards of Civility are professionalism. The views expressed are respect for the law and the processes of contained in 22 N.Y.C.R.R. Part 1200, those of the authors, and not those of the the legal system. Appendix A. These Standards set forth Attorney Professionalism Committee or The Committee goes on to say: the lawyer’s responsibility to be civil to the NYSBA. They are not official opinions In our work to serve our clients other lawyers, litigants, witnesses, the on ethical or professional matters, nor while promoting respect for the court and court personnel. They also should they be cited as such. legal system, we do so in the pur- articulate the responsibility of judges

48 | October 2009 | NYSBA Journal New York, two other states, several mittee, but recently I heard rumblings arise regarding pending cases on which United States Federal District Courts, about cutbacks and even the possible I am presently working. Can you give and the United States Supreme Court. I dissolution of my firm because of the me some guidance? Is there anything started my career as a federal prosecu- effects of the current economy. I have that my prospective governmental tor and later worked for two other state a family to support, and naturally I’m employers and I should be aware of governmental agencies. I now work in concerned. before I interview? a private firm and have several cases I am thinking about applying for a Signed, pending before governmental agen- job with the government and would In Need of Job Security cies. I am not on the management com- like to know if any problems might

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NYSBA Journal | October 2009 | 49 THE LEGAL WRITER CONTINUED FROM PAGE 64 without getting bogged down on sub- tor who re-writes much of the docu- ject matter.9 ment.11 will avoid the computer-age pitfalls of • Proofread each line with a ruler. • Proofread on a hard copy. A hard incomplete edits.5 Having another per- By placing a ruler under a line of text, copy is easier to read than a computer son look over a document will provide readers can keep their eyes from mov- screen. It’s also easier to edit on a hard that attentive editing. ing ahead to the next word group. copy. The downside to editing on hard • Use spell-check and grammar Experienced readers tend not to read copy is that it can take a long time. programs. Word-processing programs letter-by-letter or even word-by-word. Writers end up going over the docu- feature functions that find misspelled Proofreading with a ruler slows down ment twice — once on paper, once on words and grammatical errors and reading to assure correctness.10 the computer — for every set of edits. suggest corrections. These functions • Redline. Redlining lets writers For this reason, writers and editors aren’t entirely reliable or accurate. and their editors see changes between who go through many drafts prefer to But they’ll catch mistakes even the drafts. redline. Even if they redline, however,

Being edited requires modesty, patience, and the willingness to accept criticism. best writers will miss. Another word- In Word, click “Track Changes.” The writers and editors should proofread processing tool is the “find” button. changes will show up on the document. the final draft on a hard copy. Writers should look up words they New words become red and under- • Note corrections. It’s easy to miss commonly misspell.6 Spelling errors lined. Deleted words have a dotted handmade corrections on a hard copy. often result from faulty information line drawn to the right-hand margin, Mark edits — those made and those in kinesthetic memory: Writers who where the deleted word appears. Each not understood — with highlighters or usually misspell a word might do so person who reviews the document is tick marks. again.7 assigned a different color of font. Each • Read aloud. Writers should read • Rely on Flesch-Kinkaid. The time someone makes a change, the the document aloud to themselves or Flesch Reading Ease test scores docu- change appears in the respective font, to someone who’s proofreading on ments between 0 and 100. The high- and a legend appears at the top of the a hard copy. This allows listeners to er the score, the more readable the screen. This keeps the document clear verify the accuracy of each word they document. A score of 60 means that for multiple reviewers. A line appears hear rather than absorb the ideas of the 13- to 15-year-olds will have no prob- on the left-hand margin to indicate piece.12 lem with the text. The Flesch-Kinkaid changes. Writers who want to accept • Citations. Writers should copy and Grade Level Formula translates the all the changes will choose “Accept all paste citations into Westlaw, LEXIS, 0-100 score into an American grade changes” from the toolbar’s “Changes” or other program to verify them, the level. A score of “nine” means that a icon. Writers who don’t want to accept pinpoint citations, and all quotations. ninth grader will understand the text.8 all the changes at once can choose Everything must be right: word for Microsoft Word allows writers “Accept and Move to Next.” word, number for number, comma to grade their documents by choos- WordPerfect’s redlining options are for comma. Writers should also make ing “Spelling and Grammar” and available under “File,” “Document,” sure that cross-references between then turning on the “Options” set- and “Review.” WordPerfect allows for citations are correct, that short-form ting to “Show Readability Statistics.” comparisons between two documents. citations continue to be accurate, and In WordPerfect, writers can choose “Compare Only” produces a “Compare that each “supra,” “infra,” and “Id.” is “Grammatik” from the “Tools” option. Summary” of additions and deletions. valid. Writers should then verify cross- When the “Grammatik” window “Compare and Review” reviews both references. Editing produces changes. opens, choose “Options,” “Analysis,” entire documents to note and make Footnotes and endnotes don’t end up and then “Readability.” WordPerfect additional changes. where they started. examines passive voice, sentence com- Redline corrections on a comput- plexity, and vocabulary complexity. er make the paper appear cleaner. Correcting Proof • Read the document backward. They’re also easy to read: The editors’ Lawyers edit and proofread the work Reading from the last sentence to the comments appear next to the original of others. Editors should write cor- first or from the bottom of the page text. On the other hand, redlining can rections in the margin, close to the to the top can check for surface errors be more time consuming for an edi- original. Editors should draw a line

50 | October 2009 | NYSBA Journal through an entire word that has two or more changes. New material should be rewritten in the margin.13 Editors should use standard proofreader’s marks to suggest changes (see sidebar, Proofreader’s Marks, on this page). To subject themselves to the editing whim of others, writers must lose their egos. Some writers ask others to examine their work just to get positive feedback. But the point of being edited is to get suggestions. Being edited requires modesty, patience, and the willingness to accept criticism. One fiction writer14 compared being edited to the stages of death. Denial (“There’s no way I am making these ridiculous changes!”). Anger (“Who does the editor think she is, tearing up my work like that?”). Bargaining (“If I cut the tearing-at-the- heartstrings conclusion, may I keep the reference to social morals in the intro?”). Depression (“This writing is terrible. I have to start from scratch.”). Acceptance (“I deleted the flowery conclusion and the exaggerated intro. You were right from the start.”). Editors are helpful because they can be objective. They’re not attached to the writing. Regardless who if anyone pays them, their only real client is — or should be — the reader. The benefit to having an editor is having someone with fresh eyes look at the text. All writers, with or without editors, must leave enough time between drafts to re-see their text. Starting the writing process early and leaving time How much and what kind of edit- • Select issues on which to com- to edit and proofread are required. ing depends on the editee’s needs. ment. Comments should concentrate Editing requires a healthy mind-set. If the editee is a student or someone on a hierarchy of concerns: content, Criticism that’s less than constructive looking to learn from the writing expe- idea development, organization, and, is counter-productive. The writer will rience, the editor should explain and finally, surface errors. become frustrated and unmotivated to teach. If the editee is a professional • Note general comments at the end take an editor’s advice. Also ineffective who requires feedback on a document of the document and identify tasks for are over-commenting in fear that mis- that needs to go to a court or client the next draft. The comments should takes will go unchecked15 and adopting quickly, the editor should focus on the add substance to the comments in the an authoritarian editing stance.16 Editees court’s or client’s needs. In that case, margins. must trust their editors. The editor must the goal is not to teach or be taught but • Make comments specific and easy establish that trust. Condescending, to create a flawless document. Even to read. Generic comments are unhelp- degrading, or over-commenting will so, the editee should learn from the ful. hinder an effective editee-editor rela- edits. Only by learning will the writer • Direct comments about the writ- tionship. So will changing the text so improve.17 ing, not the writer. radically that the work becomes the Editors should adhere to these sug- • Offer some praise if at all war- editor’s, not the editee’s. gestions: ranted.18

NYSBA Journal | October 2009 | 51 No one way to edit is perfect — or Conclusion com/2006/03/being-edited.html (last visited Sept. perfect for everyone. Whether the editor People expect correctness. To err is 1, 2009). is self-editing or an editor is editing a human, but readers don’t forgive mis- 15. Amy Neville, Over-commenting — Why Do We Do It and How Can We Cure It?, 22 Second Draft 21 writer, all approach editing differently. takes in others’ writing. Mistakes (Bull. of Legal Writing Instit.) 12, 12 (Fall 2007). 19 One approach is to edit in stages. make readers draw negative inferences 16. Kristen Davis, Building Credibility in the Margins: This technique requires the editor to about the writer’s skills — inferences An Ethos-Based Perspective for Commenting on Student legal writers can ill afford.22 To write Papers, 12 Leg. Writing 1, 85 (2006). well is to edit and proofread: to see 17. See Frank Gulino, Providing Effective Feedback to Legal Writing Students: Practicing What We Preach, There’s no such things large and small from the read- 22 Second Draft (Bull. of Legal Writing Instit.) 5, 5 thing as good er’s perspective. (Fall 2007) (discussing ways to give student writers As Justice Louis Brandeis said, effective feedback). writing. There’s “There is no such thing as good writ- 18. These suggestions come from Susan M. Taylor, 23 Legal Writing Symposium, Students as (Re)visionar- ing. There is only good rewriting.” ies: Or, Revision, Revision, Revision, 21 Touro L. Rev. only good re-seeing. Let’s update that: “There’s only good 265, 294–95 (2005) (discussing what editors should re-seeing.” That’s because revision is focus on when giving feedback). isolate a particular mistake and edit just that: Re-vision. ■ 19. Paschetto, supra note 5, at 16. the document only for that mistake, 20. Jan M. Baker, A = Analysis: Labeling Written ignoring other errors. Editors using 1. Tom Goldstein & Jethro K. Lieberman, The Comments to Correspond with Grade Evaluation Sheets, Lawyer’s Guide to Writing Well 108 (2d ed. 2002). 22 Second Draft (Bull. of Legal Writing Instit.) 4, 4 this technique will go through a docu- (Fall 2007). 2. Gerald Lebovits, The Legal Writer, Sentences and ment first to check for section num- Paragraphs: A Revisionist Philosophy, 77 N.Y. St. B.J. 21. Charrow, supra note 4, at 235. bering, then headings, and then cita- 64, 64 (Jan. 2005). 22. See David E. Sorkin, The Proof is in the tions. Finally, they’ll read the text in 3. Id. at 60. Proofreading, 81 Ill. St. B.J. 323, 323 (June 1993) (noting repercussions for lawyers who carelessly a combined proofreading and editing 4. Veda R. Charrow et al., Clear and Effective proofread and edit). effort, ignoring the items checked ear- Legal Writing 227 (4th ed. 2007). 23. Richard K. Neumann Jr., Legal Reasoning and 5. John J. Paschetto, Beyond Redlines and Spell- lier. Some believe that this technique Legal Writing: Structure, Strategy, and Style 61 (4th Check: Proofreading Tips from the Dark Ages, The Prac. ed. 2001) (quoted in Brooke J. Bowman, Learning wastes time. It requires many read- Law. 15, 17 (Feb. 2008), available at http://files.ali- the Art of Rewriting and Editing — A Perspective, 15 throughs. If a mistake is spotted, it aba.org/thumbs/datastorage/lacidoirep/articles/ Perspectives: Teaching Legal Research & Writing 54, TPL0802-Paschetto_thumb.pdf (last visited Sept. 1, makes sense to correct it immediately. 54 (Fall 2006) available at: http://papers.ssrn.com/ 2009). Another way to edit is to start with abstract=1124031 (last visited Sept. 1, 2009)). micro-revisions — the corrections deal- 6. Suzanne E. Rowe, The Legal Writer, Perfect Proofing: 10 Steps Towards Error-Free Documents, 67 ing with smaller details like spelling, Or. St. B. Bull. 33, 33 (Dec. 2006). ERALD EBOVITS grammar, and sentence structure — 7. Virginia Tech, Proofreading, http://www.ucc. G L is a judge at the New York City and then step back to study the bigger vt.edu/stdysk/proofing.html (last visited Sept. 1, Civil Court, Housing Part, in Manhattan and an picture. Proponents of this method 2009). adjunct professor at St. John’s University School believe that once small changes are 8. The Legal Writer always subjects his columns of Law. For her research help, Judge Lebovits to Flesch-Kinkaid. The Legal Writer edits and proof- thanks New York Law School student Laura made, the clutter is gone and a writer reads his columns until a 15-year-old can under- Graham. Judge Lebovits’s e-mail address is can look at the document, cobweb-free, stand them. [email protected]. to dwell on content, structure, and 9. Charrow, supra note 4, at 236. other large-scale issues. 10. Id. Some editors take the opposite 11. Leslie Rose, E-Commenting: approach. They make macro-revisions Pros and Cons. 22 Second Draft first and then consider technical issues. (Bull. of Legal Writing Instit.) 1, 1 (Fall 2007). These editors believe it wastes time 12. Kimberly Hausbeck, The to focus on the small stuff when the Sound and Flurry of Words, 22 section with those errors might be Second Draft (Bull. of Legal changed or even cut out later. Writing Instit.) 8, 8 (Fall 2007) (recommending ReadPlease. A useful way to offer feedback to com for writers to hear their student writers is to use evaluation texts read aloud). sheets. Evaluation sheets are separate 13. Univ. of Minnesota, Style from the written document. They’re Manual, Proofreading, http:// www1.umn.edu/urelate/style/ labeled with numbered sections that proofreading.html (last visited match sections of the text where cor- Sept. 1, 2009). rections are made. This allows editors 14. A Newbie’s Guide to to provide consistent feedback and Publishing: Being Edited, http://jakonrath.blogspot. detailed explanations.20

52 | October 2009 | NYSBA Journal LANGUAGE TIPS BY GERTRUDE BLOCK “A word is not crystal, transparent and unchanging; it is the skin of a living thought and may vary greatly in color and content according to the circumstance and the time in which it is used.” – Justice Oliver Wendell Holmes, Jr.

uestion: I was taught that the Adverbs, too, have become an “This election has been a major turning verb lend was correct and that endangered species. Adjectives are rap- point, just like 1980’s was.” And this Qloan was a noun. But I see loan idly replacing them. Take the adjective university’s football coach (who does used as a verb by people who ought to good, which is on its way to eliminating not) announced, “Like last year, the know better, in sentences like “Loan well in some constructions. In answer defensive ends will be a major threat.” me ten dollars.” What has happened to the formulaic greeting, “How are It is your choice whether you prefer to the grammatical rule? you?” (In this part of the South, that to follow the majority in breaking old Answer: That grammatical rule has become “How-r yuh doon?”) The grammatical rules or persist in follow- has been canceled by usage, although typical but incorrect answer to that ing them, but invariably the next gen- the (conservative) Usage Panel of lan- question is “Good,” not “Well.” Traffic eration will follow the crowd, and the guage experts who were interviewed signs warn drivers to “Drive slow” not rules will fall by the wayside. George for the 1985 edition of The American “slowly.” “Buy low and sell high” may Campbell, an 18th-century grammar- Heritage Dictionary preferred to main- be good advice, but it is bad grammar. ian, set forth a remarkably modern def- tain the distinction between the noun And Senator Charles E. Schumer, who inition of good usage when he wrote “loan” and the verb “lend.” Although must know better, ignored the adverb in his Philosophy of Rhetoric that “lan- they acknowledge that “loan has long quickly when he said, “You can see that guage is purely a species of fashion,” been established as a verb, especially many things should have been done and defined the following criteria for in business usage,” they add that many better and quicker.” correctness: “Good usage is that which phrases require lend, such as “lend an Almost everyone ignores the distinc- is reputable, national (that is ‘wide’), ear,” “money-lender,” and “distance tion between the subjective pronoun and [in] current use.” lends enchantment.” (You may feel, as who and the objective pronoun whom. My answer to the reader’s question I do, that those phrases have a musty, Conservative grammarians would strays far from its borders. The short antique sound – as if they came from a insist on “The person who was appoint- answer is, as you have by now discov- Shakespearean play.) ed as Treasury Secretary,” but “The ered, that loan is fully acceptable as both But, in language, usage always person whom the President appointed a verb and a noun, but if you choose to eventually trumps “rules” Once a large as Treasury Secretary” Today, whom is use lend as the verb form of loan, you majority of educated people ignore a almost forgotten. will also be eminently correct – and grammatical rule, it falls by the way- Do you think that different than is will probably identify yourself as “of a side, except, perhaps, in the language of equivalent to different from? If so, you certain age,” when grammar was still meticulous users who are determined are in the majority of Americans, but taught in schools. to retain it in their own speech. Take, you are wrong according to conserva- Readers of this column should for example, the rule that the pronoun tive grammarians, who say that only also prepare themselves for a pos- I must be used as the subject, and the different from is correct. (Britons say sible merging in the meaning of objective case (me) must be used when different to.) For exactness (and to be the following pairs; but note that it is the object of a verb or a preposition, correct) you bring something to where at present none of these pairs are So it is disconcerting to purists when a person is, but take it somewhere else. synonyms. The pairs that are cur- prestigious individuals break that rule. (“Bring me the newspaper, or take it to rently sometimes incorrectly believed For example, President George W. my house.”) In addition, you walk into to be synonymous are “reticent” and Bush remarked after a visit with Prime a room from outside, but in a room if “reluctant”; “discreet” and discrete”; Minister Tony Blair, “Mr. Blair hosted you are already inside. “authoritative” and “authoritarian”; Laura and I at a delightful luncheon.” Although as and as if are still gram- “observation” and “observance”; and And more recently, President Obama matically correct, the incorrect preposi- “meritorious” and “meretricious.” ■ commented, “I’ll leave it to others to tion like has virtually eliminated both, GERTRUDE BLOCK is lecturer emerita at the determine whether me and my team If you have said, “I remember it like it University of Florida College of Law. She is the had anything to do with [the current was yesterday,” you are ungrammati- author of Effective Legal Writing (Foundation economy].” In those statements, Mr. cal, but a PBS reporter joined numer- Press) and co-author of Judicial Opinion Writing Bush and Mr. Obama joined the major- ous others when he said, “Just like a (American Bar Association). Her most recent ity of teenagers and other common noise can be distracting, so can a blink- book is Legal Writing Advice: Questions and mortals who say, “Me and my friends ing light.” Time columnist Justin Fox, Answers (W. S. Hein & Co., 2004). went to the mall today.” who probably knows better, wrote,

NYSBA Journal | October 2009 | 53 NEW MEMBERS WELCOMED

FIRST DISTRICT Avani Pankaj Bhatt Michael Yuk-chung Chin Rachel Lauren Dougnac Francesca Laura Anthony Stuart Abato Dilli Raj Bhatta Edgar Cho Jenny Simone Dube Fulchignoni Camilla Marsha Abder Cristina Bianchi Sina Choi Carl Dean Duffield Nicole Slack Gable Arun Abraham Gudridur Svana Mishi Choudhary Judith Dupont Rishikesh R. Gadhia Hanna Abrams Bjarnadottir Bernice Jill Chow Meghan Elizabeth Dwyer James Robert Gadwood Abraham Simche Adler Brian Roger Blais Michael S. Chung Bonnie Elise Dye Joseph Terence Gallagher Pooja Agarwal Natalie Rajkovic Blazer Jonathan Bradley Clair Andrew Dylan Mikaela Colleen Emma Louise Ahrens Carolyn Anne Blessing Erika Lee Clampitt Batsheva Eadan Gallagher-Whitman Toshiaki Aiba Daniel A. Bloom Margarita Sofia Clarens Jessica Marguerite Eaglin Rohini C. Gandhi Susan Dever Aiello Rebecca Lynn Bock Jennifer Leigh Clark Frances Eardley Kyle Steven Gann Sarah Rose Aikman Brian Scott Boerman Johanna Grace Coats Maya Elbert Peter Michael Gantenbein Amy Elisabeth Albro Tracy Kathryn Bookspan Daniel Robert Cohen Jesse Andrew Ellis Carlos Alberto Garcia Carissa Louise Alden Andrew Ernesto Borchini Tarique Narada Collins Jennifer Beatrice Juan Carlos Garcia Michael Stephen Aleman Daniel Edelman Borden Patrick Mullen Connorton Ellsworth Meagan Elizabeth T. Cristobal Joshua Alex Cari Lyn Borgna Gregory McCloskey Alexandra Elser Garland Brian Burkons Alexander Nicole Marie Bouchard Conroy Richard Micheal Enmon Elizabeth Fuller Gaskell Darian Alexander Jean-michel Boudreau Vanessa Denise Conway Derek J. Ettinger Christopher Burke Mark Robert Alexander Kathleen Elizabeth Alicyn Leigh Cooley Kevin Stanley Evans Gaskill Ricardo Frederico Alicea Bouquard Lisa C. Cooms Saralee E. Evans Kayla Renee Gassmann Amy Tamara Alter Lisa R. Bourque Steven Michael Coonce Boriana Anguelova Jessica Elaine Gates Yared Hadgu Alula David Adams Boyd James Brennan Cooney Fackler Aisha Dalila Gayle Susan Margaret Ambler Carlos Manuel Brackley Florencia Cornejo Courtney Patrice Fain Lauren Ashley Gee Fasil Amdetsion Nathaniel Leon Bradburd Nicholas Adam Corrado Sebastian Landry Fain Steven Charles Gee Parvin Kristy Phillip Alden Bradley Maria Eugenia Torres Pablo Falabella Nicholas Norman George Aminolroaya Andrew Samuel Bragin Aguilar Cortez Guanyu Fang Anamika D. Ghista Kathryn Lewis Andrews Sean Antonius Brandveen Mark Alan Covey Jacqueline D. Farinella Caitlin Elizabeth Gibson Raquel Lorraine Aragon Danielle Lynn Brenner Erin Michelle Craddock Kathryn Lee Farrara John Michael Thomas Alphonse Craig C. Briess Bridget Anne Crawford Igor Fasman Gildersleeve Aragona Rebecca Novia Brindley Stephanie Brown Cripps Anna Rosamorada Colleen Patricia Gilg Nermeen Saba Arastu Brett J. Broadwater Cecilia Culverhouse Favour Melissa Rae Ginsberg Shellka Arora Lauren Beth Brooks Patrick Jacob Curtis Aleksandra Fayer Peter Joseph Gioello Brian Patrick Arthur Mary Ashby Brown Barbara Vita Cusumano Clara Seo Feacher Melissa Allison Glass Julian Tatsuo Asano Patrick James Brown Jocelyn Marie D’ambrosio Lindsey Devon Fein Mark Brandon Glover Sarah Ashfaq Raymond L. Bruce Meredith Jane Dahl Joanna Rachel Fetter Steven Paul Glynn Philip Edward Ashley Branwen Buckley Christopher Andrew Nicole Lee Fidler Haben Goitom Emily Renee Ashman Lisa King Burgett Dailey Rachel Poynter Fink Emily Elizabeth Gold David Wadi Ata June Anne Burke Lauren Christine Danford Jonathan Finkelstein William Robert Golden Ramon Ancheta Avena Lauren E. Burke Ryan Brendan Darcy Alexandra L. Fiore Alexander Gideon Violetta Averbakh Nora Elizabeth Burke Christopher Bowden Jennifer Ann Fischer Plaskow Goldenberg Nina Vijay Ayer Christopher Farris Bush Davis Alexandra Elizabeth Elizabeth Mary Daniel Adam Bagliebter Zaneta Oriana Butscher Jackson Sidney Davis Fisher Goldfinger Rana Bahri David Paul Byeff Jared William Dematteis Robert Adam Fishman Richard Brandon Jillian Mackenzie Barber Michael Albert Byrne Adam Jason Denenberg Christopher Hikaru Goldman Magdalena Barbosa Blaire Amy Cahn Wei Deng Fitzgerald Iris L. Goldstein Martin Frank Barna Ian Gabriel Canino Xin Deng Ariel Fliman Mia Noel Gonzalez Stephen James Barrett Allyson Anne Cannistra Amy Lynette Dennison Danielle Anne Flores Shadaia Maleka Gooden Delyanne D. Barros Nathaniel Michael Carle Kristen Leigh Depowski Alvin Joe Flowers Brendan Markham Hassan Ali Bassiri Benjamin Robert Booth Elizabeth McKee Maria Jorgelina Foglietta Goodhouse Matthew Blair Baudler Carlisle Devaney Jared Benjamin Foley Michael Jordon Gore Amelie Desiree Baudot Fabiola Carrion Vijay Dewan Michael Shaka Ford Carla Gorniak Jared Samuels Baumeister Anne Kathryn Castellani Maria Alejandra Diaz Jeffrey Douglas Forrest Lisa Michelle Gouldy William Harold Bave Adlin M. Castro Escobar Joshua Adam Dilena Joshua Curtis Foster Meaghan Christina Gragg Tameka Melissa Aby Denise Castro Lauren Victoria Timothy L. Foster Miranda Valerie Grant Beckford-Young Richard Anthony Celestin Dileonardo Joshua Thomas Foust Kelly Graves Rebecca Holappa Bell Daniel Bernard Centner Katherine Melissa Alexander Frechette- Jennifer Loring Gray Justin Benjamin Bender Serena Annelise Cesani Dobson moulter Alyssa Robin Greenspan Allison Marie Benne Kate Elizabeth Chaltain Stephen Lowry Dobson Carolyn Frederick Noelle Duarte Grohmann Kathryn Ann Bennett Joanna Ka Wai Chan Greg Andrew Dolinsky Jessica L. Freese James Grohsgal Lauren Rose Bennett Alanna Chang Katherine Quinn Jennifer Lynne Freiman Matthew Robert Gross Louise Celeste Bennetts Gaurav Chaudhari Dominguez Manuel Stefan Frey Zack Heller Gross Monica Noelle Sullivan Jessica Yu Chen Genevieve Marie Andrew Clark Friedman Gabriel David Grossman Berton Chi Cheung Dorment Leah Friedman Julie Catherine Grundman Blake Garrett Betheil Donny Chia Amy Jitendra Doshi Charles Friedmann Christopher Roger Amarpreet Singh Bhasin Geri Anne Chich Brianne Nicole Dotts Lawrence John Friscia Gruszczynski

54 | October 2009 | NYSBA Journal Sachin Kumar Gupta Samuel Asher Josephs Elizabeth Langer Andrew James Gustus Benjamin J. Juergens Yana Lantsberg Eve Rachel Gutman Rivka Jungreis Nelida Lara-garduno In Memoriam Stephanie Marie Gyetvan Vera Marie Kachnowski Heather Renee Lasher Kevin M. Haas Chaim Zev Kagedan Peter Robert Lattanzio Gerald D. Sharkin Catherine Lee Hammack Jordan Charles Kahn Tuongvy Thi Le Monmouth Beach, NJ Alexandra Hankin Marcia A. Kahnowitz Robert Ledesma James Patrick Hannigan Shoshana Bess Kaiser Hsien-jay Lee Ashley Niccole Hanson Georgia Kakouros Kevin Kai-yun Lee Carrie Lynn Maylor Stefan Augustin Neata Adam Michael Harris Nicholas Carl Kamphaus Barbara Ruth Leiterman Francis Paul McConville Adrienne Wiggin Neff Lauren C. Harrison Wangui Wacieni Kaniaru Rory Leraris Amanda Louise McCoy Matthew Adam Neimark Mary Clare Haskins Simon Vincent Alda Chieh-iu Leu Michael Erin McGovern Kamela Kristy Nelan Janeen Hayat Kapochunas Andrew Marc Levine Matthew Scott McKenzie Gwendolyn Sue Nelson Matthew Stephen Heaton Rishi Kapoor Laura V. Levy Andrew James McLean Stephen William Nesspor Dana Lynn Heitmeyer Yekaterina Kapych Amanda G. Lewis Blyth Marie McLeod Eugene Jun-yih Ng Michael Avi Helfand Spyros Karidis Charlotte Amy Lewis John Stevens McMahon Duyen Thi Nguyen Jeremy Michael Hendon Yariv Katz Matthew Daniel Lewis Stephen William Deirdre Tu Nghi Nhan Luz Maria Henriquez Jessica A. Keeley Kim Li McNamee Joanna Ruth Nicholson Jonathan David Henry Christopher Andrew John Christopher Lin Linda Bertling Meade Miguel Angel Nieves Yisrael Yehuda Herbst Keisner Lisa Anne Lindstorm Andrew Michael Meehan Benjamin Nixon John N. Herring William Edward Kellogg Maria Katrin Lingnau Adam Scott Mendelowitz Sean Robert Nuttall Lindsay Heidi Hersh Colin Samuel Kelly Matthew Lawrence Socheatta Vanine Meng Carly Kristen Nuzbach Michael Ethan Higgins Justin T. Kelton Lippert Michael Harmon Cherish Ann O’Donnell William Maury Hildbold Daniel Versteal Kemp Faith Katherine Menitove Carolyn R. O’Leary Michael John Hinchen Michael Edward Kerman Livermore Shawn Merritt Shawn Lawrence O’Neill Jeremy L. Hirsh Derek Peter Kershaw Molly Anne Logan Markus Meuller Scarlett Carolina Obadia Joann Carmen Ho Aditya Khanna Kapil Longani Kevin C. Michael Kirsten Jane Odynski Jeffrey Hoffman Dmitriy A. Kheyfits Hugo Lopez Coll David Irving Michaels Mohammed Saleh Omer Arnold J. Holland Christopher W. Kibler Lisa Marie Lorish Melina Christine Milazzo Angel Catrice Omoruan William Edward Holmes Piotr Jacek Kietlinski Victoria L. Loughery Heather Elizabeth Miles Michael McNeill Oswalt David Bayer Horner Paul Joseph Kilminster Jennifer R. Louis-jeune Eli Nathaniel Miller Lisa Anne Packard Lauren Katherine Chris Jason Kim Jonathan Landau Lubin Nicholas Winfield Miller Kristin L. Padgett Hornung Eric Kue Kim Luppe Busch Luppen Sharon Minto Chet Kelii Pager Xioyang Hou Kathleen Kim Rachel Mara Luria Anup Misra Surya Palaniappan Andrea Hoyos Keun Dong Kim Vijay Luthra Courtney Partick Mitchell Tracey Nicole Pall Chih-wen Hsiao Moonjung Kim Frances Yung Ho Ma Heather Celeste Mitchell Hellen Park Charles Hepburn Cassie Lee Kimmelman Jad Melhem Maalouf Jayashree Mitra Jinwoo Charles Park Huberty Elizabeth Ann Kirkwood David Howard Konstantina Ann Mitsis Jiyoung Park Mary Reece Hunt Leo Benjamin Kittay MacFarlane Celine Mizrahi You Jung Park Tariq Hussain Ashley Hilde Klugman Jennifer Ashley Macke Mohamed Amrin Simrin Kaur Parmar Sara Iason Lindsey Merrill Kneipper Jonathan J. Macke Mohamed Amin Matthew Cameron Peter Benjamin Idziak Irina Kobylevsky Stephen Patrick Michael Scott Monteith Parrott Rachel Mirav Ingwer Valerie Anne Koffman Mackenzie Sarah Lynn Montgomery Madhu Parthasarathy Eli Isak Jamie M. Kohen Joshua Martin Macleod Mary Elizabeth Morales Joshua N. Paul Pamela Ruth Itzkowitch Jonathan Scott Kohler Kathleen Ellen Macmillan Singh Jonathan Reuben Pavlich Phillip Eugene Jackman Violetta Anna Kokolus Joseph Robert Maczko Raul Moreno Marshall Pawar Charlotte Camilla Emily C. Komlossy Matthew Robert Maddox Sharon Mori Benjamin Daniel Pearce Jacobsen Anna A. Kornikova Jill Marie Madeo Gregory Paul Mouton Kristen Danyell Peel Carlene Jadusingh Shirley Werner Kornreich Renato Gomes Ribeiro Andrea Sekai Mparadzi Jane Pek Brad Alfred Jaeger Marianna Korshukin Maggio Neeta Sarika Mulgaokar Katherine Campbell Kimberly Denise Jaimez Drew Simon Kovacs Ian Tomas Mahoney Marjorie Anne Mulhall Penberthy Noelia E. Jaramillo Ezra William Kover Shakhi Majumdar Sarah Reed Mullin Moira Kim Penza Samuel Shu-yen Jeng Hollin Nagisa Kretzmann Sania Malikzay Evelyn Munoz Caroline M. Pere- Soyon Angela Jin Bethany Elisa Kriss Peter Gaetano Mancuso Sean Joseph Murphy augustin Thomas Alan Jodeit Nathaniel Jacob Kritzer Rebecca Grace Mangold Jessica Celia Myers Francesca Jeanine Evelyn Piibe Jogi Yana Kromo Gara Erin Marinoff Unjoo Na Perkins Bryan Clyde Johnson Martha Julia Kronholm Priscilla Marquez Akshay Nagpal Adam Ross Perlman Marques Stephen Michael Ralph Kuehn Lindsay Kay Martin Eva Nagy Carolyn Rourke Petri Johnson Hong-wei Andrew Kuo Mercedes Orpilla Martin Joshua Michael Nahum Michael Theodore Benjamin Michael David Edward Kutcher Gabriel Tomas Martinez Hiroko Nakamura Phillips Johnston Alexis Lauren Kuznick Paul Brian Maslo Ryan Christopher Nanni John Roman Picherack James Black Jones U-hyeon Kwon Nicolas Mathieu Ian Gabriel Nanos Grace Elizabeth Pickering Megha Jonnalagadda Joshua Seth Kyle Zachary Scott May Alice Rose Nasar Caroline Helen Piela Kevin Brad Jordan Nicholas Ho-dat Lam Jessica Hovanec Mayes Marc Daniel Nawyn Robert William Pierson

NYSBA Journal | October 2009 | 55 Ravi Prabakharan Pillay Sayo Saruta Kimberly Rebecca Spoerri Benjamin Turshen SECOND DISTRICT Carissa Marie Pilotti Meghna Saxena Megan Anne Sramek Rhadames Alberto Ulloa Stephane Fouad Adam Alexandra Carrington Nathan A. Schachtman Joseph Penn Stabler William Paul Underwood Gouda Bushra Ali Gouda Pitney Jenna Elisabeth Schaeffer Timothy Stapleton Leon Michael Unglik Mandana M. Arjmand William David Pollak Ben Adam Schatz Jonathan Scott Stein Richard Thomas Vagas Matthew Erik Deborah Alejandra Benjamin Paul Schaye Paul Brooke Stephan Judith Naomi Vale Bloomgarden Popowski Claire Annika George Elias Jeroen Koos Van Michelle Lee Burrell Kevin Paul Potere Scheinbaum Stephanopoulos Hezewijk Daniel Joseph Calabrese Chinmayee Prasad Peter Scott Schermerhorn Nicole Michelle Kevin Paul Rebekah Beth Cook-mack Alexander Peter Pulte Jeremy David Schildcrout Stephansen Vanlandingham David Geoffrey Cooper Andrew Beach Purcell Joshua Irwin Schiller Kyla Janine Stewart Cheri Elizabeth Veit Kelsey Carole Crew Bronwen Ruth Pyle Owen Matthew Schmidt Miles John Malcolm Ariane B. Vinograd Fiona M. Dutta Justin Robert Quinn William Jeffrey Schmidt Stewart Daniel Fierman Wachtell Daniel Glenn Edgerton Zev Feinstein Raben Matthew David Jamie Edward Stockton Jennifer Etolia Wade Alec M. Fisch Alex Radetsky Schneider Maria Esperanza Stookey Jessica Norelle Walder Diana Elise Garber Joshua David Radzin Katherine Strode Schorr Michael Warnow Stout William Ross Waldman Alicia Leah Glaser Shruti V. Raju Matthew Philip Schuman Sean David Strasburg Aaron Terrell Walker Justin Marc Goldstein Joseph Anthony Rak Ayala Schwartz Todd Bradley Suchotliff Richard Arthur Walker Bernard J. Graham John Joseph Ramirez Adrienne B. Schwison Suin Suh Brian S. Wallach Jaime Elizabeth Hanlon Faraz Ahmed Rana Diana Scopelliti Meghna Suryakumar Jennifer Megan Walsh Joan Dawn Hogarth Jason Sean Rappaport Justin Wellington Seery Sarah Lynnda Swan Samantha Mary Walsh William Compton Katherine Ellen Rasor Alexandra Kim Segal Brian Michael Sweet Bin Wang Hughes Gregory Derrick Rauen Margaret Thorner Segall Jennae Rose Swiergula Minyao Wang Susan Caroline Johnson Jennifer Danielle Raviele Olubunmi Bolanle Segun Stella Szeto Elizabeth Stillwell Warner Peter S. Kessler Leanne Michelle Reagan Alona Shabat Amir Audrey Rosanna Tabacco Elizabeth Anne Warnick Brian Patrick Ketcham Shannon Rebholz Houman Brian Shadab Sheila Tindog Tagle Ying Ying Wei Juliya Khodik Gregory Edward Reid Sheikh Mohammad Ebunoluwa Abimbola Daniel Jacob Weiner Lisa Lewis Urs Reinwald Shaghaf Taiwo Michael Scott Weinstein Kamaka Ramantha Victoria S. Reiss Jeena Dinesh Shah Matthew Michael Tantillo William Hubball Weir Martin Nathalie Rey Prachi Deepak Shah Nicholas Joseph Tardif Jesse Michael Weiss Jessica McCafferty Laura Rosanna Ricciardi Tamir Uri Shanan Adam Joseph Tarkan Laura Faye Weiss Mathew Genzer Brian Eston Rodkey Vishnu Vardhan Shankar Elizabeth Greene Tate Robert Lee Whalen McCurley Brian John Roe Julie Ann Shavalier Adam Brett Taubman Kenneth Taejoon Whang Rosa Enid Mendez Alison Kathleen Roffi Michael James Shea Ashon J. Taylor Christopher Thomas Matthew Anders Moore Shalev Gad Roisman Marianna Alexandra Ryan Christopher Taylor Wheatley Melanie Bauer Nolan Brian Anthony Romanzo Shelenkova Victor Manuel Tello Paige Melanie Willan Raphael Adam Parker Jose Augusto Roque Eric Lerun Shen Vanessa Temple Abigail Whitney Williams Jeffrey Michael Pepe James Benjamin Benjamin D. Shireson Scott D. Tenley Carine Williams Trevor Alan Perea Rosenblum Katherine Anne Sholly Robert Jay Tennenbaum Jason Michael Williams Ann Pirraglia Kimberly Mary Rinat Shuster Menelik Getachew Matthew Cory Williams Ruth Emily Rodriguez Rosensteel Aileen Siclait Tessema Jacob Zaw Win Andrea Ross Richard Michael Anna Nicole Sideris Yvonne Mei-ni Tew Amanda Beth Wolf Benjamin Robert Rossen Rothblatt Ronald Montague Silley Blair Thomas Thetford Jared Peter Wong A. Jabbar Jabbar Shariff Aaron Stephen Rothman Michael Vincent Silvestro Carl Hampus Thofte Jennifer Wu Laura Amelia Smith Samantha Jane Marie John Thomas Sim Alexandrea Jane Jenny Chia Cheng Wu Simon Stoklasa Rowe Lauren Cori Simon Thompson Qiong Wu Delores J. Thomas Meenakshi Roy Caroline Koo Simons Heather Lee Thompson Maxwell Patrick Yim Margarita Lopez Torres Jane Redalieu Rubio Sumeet Sinha Sarah Elisabeth Thorpe Sojin Yoon Nataliya Vinogradskaya Christian Enrique Rudloff Adam Christian Sipos Melissa Mae Tiarks Xin Yu Candice Michelle Schoenmakers Erika G. Siu Alexandria Marie Tindall Kevin Kinchung Yung Weatherly Helen Allison Skinner Jessica Sarah Tisch Benjamin Henry Yunis Mary Lee Runkle THIRD DISTRICT Richard William Slack Marc Joseph Tobak Marco Paola Lacson Diva Renee Rutledge Sarah Lynn Bangs Jennifer Nicole Sloszar Nathalie Annette Tobar Yupangco Christina Rose Ryfa Stefanie Dawn Crawford Megan Shannon Smith Amanda Torres-dietrich Jason Scott Zack Lisa Ehrlich Sachs Carmelita Rose Cruz Rachel Lynn Snyder Patrisha Sue Troy Raul S. Zamudio Soma Saha Kenneth James Dow Betsy Helen Sochar William James Trunk Marina Igorevna Zelinsky Takayuki Sakuma Matthew Michael Hulihan Caitlin Ilyse Somerman Edward Tsai Frederic Zerbib Nadya Lauren Salcedo Vida Linda Stacey Cheong Eui Song Peter H. Tsai Zhiyuan Zhu Maria Stefania Salles McCarthy-cerrito Tara Soni Jacqueline Lillian-guzy Sharon Shmuel Bruins Martin John McGuinness Stacia Joy Sowerby Tsu Zicherman Shilpa Masih Samuel Michael Thomas Neppl Matthew Marcus Speiser Erin Keely Tucker Munir Zilanawala Michael Sutton Sanchez Jaclyn A. Patrignani Lea Marie Spiess Jeanine Vanessa Turell Massiel E. Zucco Edward J. Sanocki Ann B. Umlauf Rebecca Miriam Sara Michelle Turken Laura A. Zuckerwise Geoffrey Richard Sant Victor Waters Spigelman Lee Turner Russell Ian Zwerin Marco Aurelio Santori Victor Virgil Waters

56 | October 2009 | NYSBA Journal FOURTH DISTRICT James Clayton Schwegler Brian Elliot Kaufman Kyra Naomi Hild Andrew David Beck Holen Heather Brady Melissa Annmarie Elana Gol Ledgin Alexander Jean Peter Stephen Bejsiuk Laura Beth Carroll Semidey Joseph Gerard Leichter Margarita Rosa Jones Eleonore Bengtsson Michael Edward Morgan Kelly Taylor Marc Elliot Littman Adam Kotok Julien Ronald Bensaid Montague Devin Nicole White Peter H. Mayer Meagan Ngomuo Axel Beranek Ariana Marie Mellow Mychel Kema Russell- Jamie Nicole Berger Meghan Lisa Morris NINTH DISTRICT Gregory Griffin Meyer Ward Laura L. Berger Megan Elizabeth O’Brien Jaclyn G. Bernstein Kristina Milone Matthew Kelly Schieffer Giannina Berrocal Joanna Faith Rose Lauren Kathleen Bilello Elizabeth Shuffler Moore Michael J. Schordine Hillary Sue Bibicoff FIFTH DISTRICT Rinad Khalil Bsharat Seema Theobald Pereira Howard H. Sherman Katalyn Billy Joe Bergovec Launda Elizabeth Cavaco Michael G. Pesochinsky Lauren Fae Silver James Jackson Bilsborrow Susan Lee Dahline Luanda E. Cavaco Courtney Phillips Lucindo Suarez Mollie Bisesi Anthony J. Damelio Julianne Culhane Brigitte Francesca Platt Rahan Uddin Glenda Bleiberg Allegra Walsh Sandra Maria Dos Santos Michael Ramek Marlen Balaria Valarezo Esther Warshauer Baker Glashausser Jan Ferguson Lucy Rodriguez Mirenda Barbara Watkins Bleicher James Ryan Hatch Kathryn Meg Frankel Farah L. Rousseau Marc J. Whiten Mark Daryl Bogard Alice Jean Kim Reena Green Roman J. Shakh Olga L. Bogdanov Angela Mae Melton Shana Ann Hofstetter THIRTEENTH DISTRICT Jesse Lee Siegel David Charles Bohan Anna Christine O’Neil Katherine Lynn Jauert Joseph Farella Bikram Singh Maria Paula Borio- Michelle Rose Potoczny Terri J. Keeley Justin Joseph Lainie Elizabeth Smith penaloza Vishnu Narayan Khemrai Phyllis A. Malgieri SIXTH DISTRICT Jon Joseph Stalhut Stephen Joshua Bornick Joshua Levin Kirstin Laura Mitchell Catherine Rebeca Holmes Ionna Vasiliu Richard Jon Bortnick Nicole Beth Liebman Seongki Lee Michael Shea Werner OUT OF STATE Nicolas Bouveret Stephanie Marie Ryan Walsh Miosek David B. Wildermuth Bethany Ann Abele Chimera Nicole Bowen Markowitz Nanette Marie Monson Matthew David Karen Lynn Abraham Melissa Dawn Brach Ellen Ann McElroy Devin Morgan Zimmelman Emily Tendayi Achiume Ashlee Jeanine Branan Ian Scott Mellor Devin Sean Morgan Francisco Jose Acuna Daniel Michael Braun Sharleen Juanief Mitchell ELEVENTH DISTRICT Kristal Jeanette Ozmun Mark Alan Adair Trevor Morgan Broad Jennie Cross Nolon Nicholas Scott Allison Andrew Caldwell Adams Janine Elaine Brown SEVENTH DISTRICT Yi-Hwa Jessica Park Nefertiti Hiroko Akimoto Laura Karst Brown Ronald Gary Blum Shareef Rabaa Nanayaaantwiwaa Madina Akueva Victor Joseph Brubaker Sarah M. Born Janet Lindsay Ankra David Wayne Alexander Andrew Joseph Bruck Matthew Chapell Hagen Richardson-vargas Crystal Ann Beaumont Joshua Andrew Galiard Kamila Dorota Bury Beth Kinne Bruce Edward Tolbert Jeffrey Chery Alexander Martin Anthony Byrne Beth Ellen Kinne Nicole Kristen Trivlis Deanna Chui Sara Kate Alexander Jennifer Cadena Matthew J. Mason Franklin Velazquez Denise Ivette Cortes Betyna Ribeiro Almeida Crystal Grace Calabrese Joseph S. Nacca Gordon T. Walker Hodon A. Dirir De Covarrubias Jon Paul Calandruccio Louis C. Parker Renee C. Fahey TENTH DISTRICT Massimo Andrea Juan Pedro Camacho Richard Stanley Przysinda Elizabeth Mary Noor Husni Abou-saab Amoruso William Kirk Levi Matthew David Purcell Gonsiorowski Rebecca Joy Aledort Ian Jeffrey Antonoff Cammack David Ira Ruskin Erin Louise Gray Anna R. Anzalone Brian Frederick Antweil John Eric Campbell Jonathan Christian Trotto Christopher Lawrence Katie A. Barbieri Yoshinori Aoyagi Theo Manuel Capriles Ansley Rill Van Epps Gregory Jennifer Marie Belk Claudio Domenico Joseph John Carapiet Nicole Hazel Vanderwall Jane Onyi Ikezi Jordan Francis Bensen- Aragon Ricciuto Kenneth John Carl Nisha Rathin Vora Jamie Kauget piscopo John N. Arden Scott Leonard Carlson David James Wade Patricia Lee Rachel Anne Cartwright Emil M. Arguelles Colleen Carroll Michelle Quinlan Yvonne Mak Michael W. Castronovo Reena Arora Robert Madison Cary White-savage Edward David Mario Alice Gail Cooley Henri Kevork Arslanian Michelle Taylor Castle Dereck Allyn Wischmeyer Matthew Ryan Reischer Matthew George Emily Rebecca Atkinson Jonathan Joseph Cerrito Jeremy Samuel Ribakove EIGHTH DISTRICT Corcoran John Michael Aufiero Wen-i Chang Jesse Benjamin Richman Mollie Sara Bisesi Kenneth B. Danielsen Sally Rose Austen Debbie Maya Chastity Jose Rodriguez Steven Philip Feiner Barbara Ann Dillon Colleen Marie Ayers Albert Ramsey Chen Jeremy Daniel Scholem Harmony Anne Healy James F.X. Doyle Maxwell Ayisi-cromwell Lanxin Chen Nhu B. Vu Owen Eric Herne Christopher Xavier Elliott Ayokeji Atinuke Ayorinde Guochuan Cheng Alex M. Yadgarov Bo Gyung Kim Jason Michael Griffith Harold Thomas Jason Alan Cherna Allen Yi Lynn M. Kwon-Dzikiy Essley Babcock-ellis Jung Yoon Choi Kelly Elizabeth Laga Jacob Alan Goins TWELFTH DISTRICT Azriel Justin Baer Lily Yee Lee Chow Bethany Lynn Mazur Katrina Joye Goodwin Marisol Cordero Jie Bai Tyler Marie Hoeygaard Ryan Francis McCann Gary Anthony Gorske Todd Allan Drantch Kwangyol Bak Christensen Cory James Missell Amy Lauren Horowitz Christine Erica Furey Fintan Michael Bannon Glenn Justin Christofides Ryan Matthew Murphy Erik Carson Howard Ethan Greenberg Jose Maria Bano Stephen Chu Richard Joseph Perry Jason Adam Isaacson Rebecca Angel Greenberg Scott Michael Banschick Alexander Francis Deanne Michelle Jeffries Allan David Itzkowitz Patricia Roisin Grogan Lauren Elizabeth Barber Chu-fong Schubring Alison Dawn Karmel Davina Nurit Harris Juliane Baxmann Kevin Joseph Cimino

NYSBA Journal | October 2009 | 57 Meghan Marie Clark Kerr Stewart Evans Jason Paul Haggar James William Peter Kane Joo Young Lim Alyssa Sara Cohen Fernando A. Eyzaguirre Justin Christopher Han Kang Bang Lin Bret A. Cohen Salas Hallberg Nadine Kari Michael James Lipp Stefan Louis Coleman Cari Fais Jason Christopher Halpin Jurgita Karobkaite Jia Liu Anna Cristina Valencia Fanny Ann Ferdman Aya Hamano Andrew Lee Kass Scott David Livingston Collantes-garcia Jose Roderick Fernando Lucas Free Hammonds Manabu Katsumata Matthias Loehle Antonio Riccardo Fernando Yukoh Hammura Noam Baruch Katz Kara Ann Loewentheil Contarini Andrew John Finn Theodore Michael Hans Mark Toshiaki Kawakami Kyle Odell Logan Darragh David Conway William John Finn Alisha Harracksingh James John Kelleher Scott Andrew Logan Audrey Grace Corso Noelle Valantene Chrisovalantou Theodora Christopher Joseph Kelly Jia Wei Loong Kimberly L. Cortez Fiorentino Hartley Matthew Paul Kertz Jonathan C. Lotz Joseph Matthew Crabb Adey Abeba Fisseha Arsen Harutyunyan Mamoune Kettani Lisa R. Louer Hong Cui James Gerard Flahive Lael Nicole Hassinger Ali Kamal Khalaf Amanda Detweiler Tammy Denise Erin Kathleen Flynn Jonathan C. Haug Kathryn Frances Khamsi Lovelace Cummings Samuel Nathan Fontela Cory Glenn Hauser Hamed Khodabaksh Jonathon Brugh Lower Monica Marie Erica Vanessa Pavan Michael D. Hausfeld Satoko Kikuta Chonggang Lu D’Ambrosio Franzetti Richard John Hawkins Bong Won Kim Ming Lu Kimberly Michelle Dahm Adi Fremder Pemra Hazbay Christie Kim Pei-fang Lu Eric R. Daleo Mark Raphael Fridman Jiaqing He Do Hyun Kim Yan Lu Brian Dennison Daly Pengfei Fu Jerusha Nicole Herman Sarah L. Kim Peter Thomas Luce Benjamin Michael Daniels Takumi Fukuda Benjamin Jay Hinerfeld Sejin Kim Sarah Cora Lucey Ethan Price Davis Matthew Gary Gallagher Ying Ming Ho Ryozo Kitajima Rochelle Pauline Lundy Llewlyn Oliver Davis Ana Ercilia Gandolfo Christopher Douglas David Menno Garry Megan Kathleen Maciasz Timmery Philana Davis Joseph Francis Garvey Hopkins Klassen Robert R. Maddox Michael Edward Day Karen Palermo Gaster Jennifer Summer Hsia Adam J. Kleinfeldt Michael John Madeo Alejandro Garcia De David Rosello Gates Nathaniel Kang Hsieh James Bradley Klepper Joaquin Lasalle Madry Brigard Brett David Gerson Hsienjan Huang Daniel Lorence Kluck Erin Beth Magee Martim De Lancastre Kristen Elizabeth Lan-hsin Huang Melissa Anne Knitter Michelle A. Mahabirsingh Valente Gerweck Ling-chen Huang Peter Matthew Knob Christopher Sean Charlotte Carter Del Andrew Hyunho Ghim John James Huber Tadashi Koizumi Mahoney Duca Helen Louise Gilbert Benjamin Samuel Paul Naseem Hegedus Jeremy Mark Malcolm Elizabeth Delahunty Corey Everett Gildart Hudy Kourosh Asaf Haim Maman Lauren R. Demauro Mary Frances Byrd Adam Roland Hunter Matthew Edward Jason Courtland Mang Vatsala Subramanian Godwin Churchill Hungerford Krichbaum Michelle Marie Manson Dhananjay Sarah Gogal Huston Vivek Hariharan Davina Shari Mansur Mori Mahmoud Diane Javier Patricio Goggins Robinson Sangalang Krishnamurthy Javier Luis Martinez Jamie Elizabeth Dickson Campos Ilagan Cristiane Amaral Kruger Borce Martinoski Kiril Ognianov Dimov Adam Matthew Goldstein Judie Moran Ilus Abha Kundi William Christopher Fiona Teresa Donovan Yu Gong Salman Ahmed Ismat Gabriel Michael Kuris Martucci Tadhg Aodh Joseph Alejandro Gonzalez Matthew Iwamaye Christian Gerhard Kurtz William Joseph Marvin Dooley Lazzeri Everett W. Jack Jeffrey Lawrence Labine Lauren Jane Mashe Anna Katherine Drake Rachel L. Gould Jonathan Alexander Konata Tacuma Lake Brian R. Masterson Heather Lee Drayton Andrea E. Grass Jacobs Erik Alejandro Lamb Leopoldo Domenico David Jacob Drez Elizabeth Pickar Gray Rena Jaya Jadoonanan Reynold Lambert Matarazzo Aaron Thomas Duff Francesco Maria Graziani Arash Jahanian Karen Lau Meghan Dupuis Maurus Hannah Mary Duffy Adrian George Green Shwetha Nikhileshwari Clare Melany Lawson Jeffery T. Mauzy Bonnier Frederik Dumas Daniel Green Janarthanan Alexander Stark Laytin John Francis Olivari Catherine Jane Dundon Jeff Scott Greenberg Christina Janice Steven Randall Leary McAllister Valerie Ann Dunkle Marc Alexandre Christina M. Janice Angela Min Lee James Dennis McCarthy William Michael Duskas Greenberg Rabia Khan Javaid Christine Lee James Alan McDaniel Demetria Latreece Matthew Edward Grein Seonghee Jeong Jieun Lee John William McDermott Edwards Frank Grese Yuan Jiao Kyung S. Lee Robert Brian McNary Erin Rachel Ehrlich Hugh James Griseto Li Jing Min-chung Lee Michelle Carrie Mechanic Ogochukwu Amalaonye Robert Elliott Gross Jessica Lynn John Samuel Jung Ho Lee Sarah Ann Medway Ekwuabu Steve Gross Bowman Weiching Lee Julien Remi Meillereux Noor Kassem El-shunnar Dominik Fritz Gruendger Thomas M. John Karen Marie Leeper Philip Hoyt Meisner Christine Dessa Ely Zhenhua Gu Robert Bruce Johnson Kristen Allyssa Lejnieks Benjamin Radcliff Menge Chinedu Oluwatobi Anthony Domenic Robert Claude Johnson Yeng Kit Leong Ferdinand Roderick Patrick Enekwe Gulluni Bedouin L. Joseph Ethan Caleb Lerman Tanada Mercurio Michael J. Engallena Janet Rachel Rappoport Melissa Won-o Jung Andrew John Leyden Marc J. Meunier Leanne Ella Erdberg Gusdorff Nikoo Kalantari Shih Ching Li Francesco Luigi Miceli J. Patricio Escobar Raymond Ulysses Alison Elizabeth Kamhi Yingjie Li Lauren Stephanie Sophia Fernanda Guthrie Heena N. Kampani Philip Anthony Lights Michaels Espinosa Coloma Jacquelyn A. Hadam Ann Marie F. Kane Amy Lynne Likoff Pete Stuart Michaels

58 | October 2009 | NYSBA Journal Joseph Paul Vishalee Anil Patel Alexis Joy Schostak Grant Alan Sylvester Kenneth Betts Walton Middlebrooks Shapiro Shane Scott Paugh Jonathan Cary Schwartz Madga Bonutti Szabo Yuan Wang Kristin T. Mihelic Marjan Payan Tabari Natalia Schwartz Daisuke Takei Bruce K. Warren Jonathan J. Miles Dipti Sudeep Pednekar Michael David Segal Nicole Tze Hao Tang Melissa Leigh Weberman Frances Judith Miller Clare Michele Pessolano Karen Patricia Seifert Yong Tang Elaine Crystal Winthrop Gardner Minot Joseph Adam Petrillo Zein Elie Semaan Chantelle Andrea Taylor Weddington Jeffrey Diamond Michelle Anne Petrotta Dean Christian Seman Evan James Taylor Ellen Yi-pen Wei Miragliotta Michael M. Phillips Arjun Singh Sethi Caitlin Dawn Thistle Eric Shyue-jeng Wei Tanaz Moghadam Thelma Cherie Phillips Jasmin Kaur Sethi Christos Timagenis Yang-hung Wei Elizabeth Yung Sook Rachel Karen Pilloff Nicole Jodi Setzen Takashi Toh Mary Blake Weld Moon Frederic Pilorget Lee Alexandria Sevier Mckay Ronald Tolboe Julia Dorothee Wendler Chihiro Morishima Julie Lise Micheline Catherine Maureen Avishai Micha Toltzis Erica Deneen White Christopher William Poirier Seward Junya Tomoi Robert Kyle Williams Morren Derek Ka-wei Poon Jignesh Jayanti Shah Whitney Renee Travis Lee Brady Wilson Thomas De Rochechouart Stephanie Rae Pratt Jennifer Joy Shamwell Shamik Nikhil Trivedi Louis Joseph Paz Winner Mortemart Alison Elizabeth Price Kevin Patrick Shannon Varsha Nadette Trottman Ephraim Nathaniel David Zachary Moskowitz Rachel Olivia Pulley Soumya Sharma Fionna Tsu Wittman Cheney Evans Moss Rajiv Krishna Punja Yvonne Mary Sheehy Hiroyuki Tsumori Brian Scott Wolosky Jonathan Henry Moss Larell Denea Purdie Adam Lee Sheps Joedat Hani Tuffaha Daniel H. Wooster John F. Mullen Huiyan Qiu Diane Marie Shields Harold Kenneth Tummel Aisling Christina Wright Sean Francis Mulryne Joseph Vincent Yuliya Shilovitsky Lucian Ulmet Theodore Joshua Wu Matthew Raymond Quattrocchi Toshio Shimada Daniel Urbina Wen-i Jennifer Wu Murphy Mark John Quigley Claire Eunkyung Shin Roberto Dejesus Uribe Yi Fang Wu Valbona Korbeci Myteberi Fionnuala Aine Quinn Junji Shiraki Priti Vakharia Grace Chih-lin Wung Mariko Nakano Luciano Racco Alexander Russell Marguerite Vallery-Radot Ryan Matthew Wyzik Yuka Nakatani Colin Manson Raftery Shmulsky Anita Farah Valliani Zhimeng Xiang Michael Joseph Naporano Richard Brandon Ramsey Sanveer Singh Shoker Bridget Jean Van Buren Shanshan Xu Shneur Zalman Nathan Erica Lee Rancilio Andrea Marielle Siebert Oliver David Van Sluizer Anthony Davis Yager Julianne M. Navarro Matthew Stephen Gretchen T. 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NYSBA Journal | October 2009 | 59 CLASSIFIED NOTICES

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62 | October 2009 | NYSBA Journal 2009-2010 OFFICERS MEMBERS OF THE HOUSE OF DELEGATES

FIRST DISTRICT Golinski, Paul A. Tilton, Samuel O. MICHAEL E. GETNICK Aaron, Stewart D. Hall, John G. * Vigdor, Justin L. President Abernethy, Samuel F. Hernandez, David J. * Witmer, G. Robert, Jr. Abramowitz, Alton L. Kamins, Hon. Barry EIGHTH DISTRICT Utica †* Alcott, Mark H. Longo, Mark A. Bonarigo, Benjamin J. Alden, Steven M. Lonuzzi, John A. Chapman, Richard N. STEPHEN P. Y OUNGER Anello, Robert J. McKay, Hon. Joseph Kevin Convissar, Robert N. President-Elect Badner, Lisa Ray Park, Maria Y. Effman, Norman P. Badway, Ernest Edward Romero, Manuel A. Fisher, Cheryl Smith New York Bailey, Lawrence R., Jr. Shaikh, Heena * Freedman, Maryann Saccomando Baum, Simeon H. Sunshine, Hon. Jeffrey S. Gerstman, Sharon Stern C. BRUCE LAWRENCE Berke-Weiss, Laurie Szochet, Diana J. * Hassett, Paul Michael Blanchard, Kimberly S. Secretary THIRD DISTRICT Manias, Giles P. Bohorquez, Fernando A., Jr. Ayers, James B. O’Donnell, Thomas M. Rochester Bransten, Hon. Eileen Barnes, James R. O’Reilly, Patrick C. Brown, Earamichia Nake Baynes, Brendan F. Schwartz, Scott M. SEYMOUR W. JAMES, JR. Brown, Peter Casserly, Timothy E. Sconiers, Hon. Rose H. Burns, Howard W., Jr. Costello, Bartley J., III Seitz, Raymond H. Treasurer Chang, Vincent Ted Davidoff, Michael Shaw, James M. Chin, Sylvia Fung New York DeFio Kean, Elena NINTH DISTRICT Cohen, Carrie H. Doherty, Glen P. Collazo, Ernest J. Amoruso, Michael J. BERNICE K. LEBER Dumas, Elizabeth M. Burke, Patrick T. * Cometa, Angelo T. Farley, Susan E. Di Pietro, Sylvia E. Burns, Stephanie L. Immediate Past President Fernandez, Hermes Byrne, Robert Lantry Draper, Thomas G., Jr. Glasheen, Kevin P. New York Drayton, Joseph Michael Cusano, Gary A. Greenthal, John L. Dohn, Robert P. Finerty, Hon. Margaret J. Hanna, John, Jr. * Forger, Alexander D. Fedorchak, James M. VICE-PRESIDENTS Higgins, Patrick J. Fontana, Lucille A. † Fox, Michael L. Hurteau, Daniel Joseph Gallagher, Patrick C. Goldenberg, Ira S. FIRST DISTRICT Kahler, Prof. Annette I. Marwell, John S. Gesinsky, Loren Liebman, Bennett M. Claire P. Gutekunst, New York * Gillespie, S. Hazard Miklitsch, Catherine M. Meislahn, Harry P. * Miller, Henry G. Glanstein, Joel C. Miranda, David P. Susan B. Lindenauer, New York Goldberg, Evan M. Nachimson, Steven G. Pechenik, Stephen A. * Ostertag, Robert L. Gredd, Helen A. Privitera, John J. SECOND DISTRICT Green, Prof. Bruce A. Rauer, Brian Daniel Roberts-Ryba, Christina L. Sanchala, Tejash V. Gutekunst, Claire P. Ryan, Rachel Barry Kamins, Brooklyn Gutheil, Karen Fisher Sandford, Donald K. Salkin, Prof. Patricia E. Selinger, John Haig, Robert L. Schneider, Eric THIRD DISTRICT Hawkins, Dennis R. †* Standard, Kenneth G. Schofield, Robert T., IV Starkman, Mark T. Hayden, Hon. Douglas J. * Yanas, John J. Harry P. Meislahn, Albany Ho, John Si Stone, Robert S. Hoffman, Stephen D. FOURTH DISTRICT Strauss, Barbara J. FOURTH DISTRICT Hollyer, A. Rene Coffey, Peter V. Strauss, Hon. Forrest James, Hon. Debra A. Fernandez, Henry A. Thornhill, Herbert L., Jr. Patricia L. R. Rodriguez, Schenectady Kanter, Gregg Herbert Ferradino, Stephanie W. Van Scoyoc, Carol L. Kennedy, Henry J. Haelen, Joanne B. TENTH DISTRICT FIFTH DISTRICT Kera, Martin S. Herrmann, Diane M. Asarch, Hon. Joel K. * King, Henry L. Lais, Kara I. Block, Justin M. David M. Hayes, Syracuse †* Krane, Steven C. Martin, Trinidad * Bracken, John P. Larson, Wallace L., Jr. Rodriguez, Patricia L. R. Chase, Dennis R. SIXTH DISTRICT Lau-Kee, Glenn Stanclift, Tucker C. Cooper, Ilene S. †* Leber, Bernice K. Sterrett, Grace Fishberg, Gerard David A. Tyler, Ithaca Leo, Robert J. Vanier, Stephen A. Franchina, Emily F. Lesk, Ann B. Watkins, Patricia E. Gann, Marc SEVENTH DISTRICT Levy, M. Barry Wood, Jeremiah Good, Douglas J. Lieberman, Ellen FIFTH DISTRICT Gross, John H. David M. Schraver, Rochester Lindenauer, Susan B. Fennell, Timothy J. Gruer, Sharon Kovacs * MacCrate, Robert Fish, Marion Hancock Hendry, Melanie Dyani EIGHTH DISTRICT Martin, Edwina Frances Gall, Erin P. Karabatos, Elena McEnroe, Diane Crosson † Getnick, Michael E. †* Levin, A. Thomas Sharon Stern Gerstman, Buffalo Miller, David S. Gigliotti, Louis P. Levy, Peter H. Miller, Michael Gingold, Neil M. Luskin, Andrew J. NINTH DISTRICT Millett, Eileen D. Greeley, Kristin B. Makofsky, Ellen G. Minkowitz, Martin Hartnett, Elizabeth A. McInerney, Christine Marie John S. Marwell, Mount Kisco Morgan, Hadaryah Tebach Hayes, David M. Mejias, Linda Kelly Morril, Mark C. Howe, David S. * Pruzansky, Joshua M. TENTH DISTRICT Morton, Margaret S. Larose, Stuart J. Purcell, A. Craig Nathanson, Malvina Ludington, Hon. Spencer J. * Rice, Thomas O. John H. Gross, Hauppauge Nelson, Lester Mitchell, Richard C. Robinson, Derrick J. O’Neill, Paul J., Jr. Peterson, Margaret Murphy Winkler, James R. ELEVENTH DISTRICT * Patterson, Hon. Robert P., Jr. * Richardson, M. Catherine ELEVENTH DISTRICT Plevan, Bettina B. Stanislaus-Fung, Karen Cohen, David Louis David Louis Cohen, Kew Gardens Prowda, Judith B. Tsan, Clifford Gee-Tong Gutierrez, Richard M. Reed, Thomas A. Virkler, Timothy L. James, Seymour W., Jr. TWELFTH DISTRICT Rosenthal, Lesley Friedman SIXTH DISTRICT Lee, Chan Woo Rosiny, Frank R. Barreiro, Alyssa M. Lomuscio, Catherine Lawrence R. Bailey, Jr., Bronx Rosner, Seth Denton, Christopher Nizin, Leslie S. Rothstein, Alan Fortino, Philip G. Terranova, Arthur N. THIRTEENTH DISTRICT Russell, William T., Jr. Grayson, Gary J. Vitacco, Guy R., Jr. Safer, Jay G. Gutenberger, Kristin E. Walsh, Jean T. Jonathan Bruce Behrins, Staten Island Schindel, Ronnie Lewis, Richard C. Wimpfheimer, Steven Sen, Diana Sagorika †* Madigan, Kathryn Grant TWELFTH DISTRICT MEMBERS-AT-LARGE OF THE * Seymour, Whitney North, Jr. Mayer, Rosanne Masley, Hon. Andrea Sherwin, Peter J.W. Pogson, Christopher A. * Pfeifer, Maxwell S. EXECUTIVE COMMITTEE Sigmond, Carol Ann Tyler, David A. Price, Hon. Richard Lee Silkenat, James R. Timothy J. Fennell SEVENTH DISTRICT Quaranta, Kevin J. Smith, Hon. George Bundy Brown, T. Andrew Sands, Jonathan D. Hermes Fernandez Sonberg, Hon. Michael R. Burke, Philip L. Schwartz, Roy J. Spiro, Edward M. †* Buzard, A. Vincent Summer, Robert S. Glenn Lau-Kee Syracuse, Vincent J. Gould, Wendy L. Weinberger, Richard Tesser, Lewis Harren, Michael T. THIRTEENTH DISTRICT Ellen G. Makofsky Wachtler, Lauren J. Jackson, La Marr J. Wolff, Adam John Behrins, Jonathan Bruce Eileen D. Millett Kingsley, Linda S. Mattei, Grace Virginia Yates, Hon. James A. Kurland, Harold A. Yavinsky, Hon. Michael J. Sieghardt, George A. David P. Miranda Laluk, Susan Schultz Sipp, Thomas A. † Younger, Stephen P. Lanzafame, Ross P. Peter J.W. Sherwin Zulack, John F. Lawrence, C. Bruce OUT-OF-STATE Bartlett, Linda G. Lauren J. Wachtler SECOND DISTRICT Lightsey, Mary W. Adler, Roger B. McKeon, Hon. Michael F. Elder-Howell, Andrea M. Bonina, Andrea E. * Moore, James C. * Fales, Haliburton, II Cohn, Steven D. * Palermo, Anthony R. Kurs, Michael A. Dollard, James A. Schraver, David M. Ravin, Richard L. Doyaga, David J., Sr. Smith, Thomas G. Torrey, Claudia O. * Walsh, Lawrence E.

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

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

Prove Proof It With Revision Re-vision — Part II

he September 2009 Legal Writer In the example, the noun is “I.” A Word choice relates to a reader’s column analyzed how writers verb is the core of every predicate. In set of expectations: the “given-new Tcan learn to re-see their docu- the example, the verb is “enjoy.” The concept.”4 This concept describes the ments on the macro-level. The column predicate conveys a thought about the relationship between what the reader continues. subject. Simple sentences emphasize already knows (the “given” informa- and clarify. tion) and new information the writer Micro-Revisions Not every sentence need be simple. is introducing. Readers assume rela- Editors revising on the micro-level Variety makes sentences interesting.3 tionships with the information they’re look at sentence structure, word choice, Some sentences should be compound, given. Using the wrong word violates grammar, punctuation, and spelling. complex, or compound-complex. A expectations. compound sentence contains two inde- Misused words defy a reader’s Sentence Structure pendent clauses, or two simple sen- given expectations. The result is a fail- Editing must render writing intelli- tences, joined by a coordinator. Coordi- ure to relay the intended message. gible. Proper sentence structure focus- nators: “and,” “but,” “for,” “not,” “so.” Commonly misused words include es on reader expectations. Readers Example: “I enjoy writing, but I hate “affect” and “effect” and “then” and approach given sentences with pre- research.” “than.” conceived notions of what they expect A complex sentence has an inde- One word-choice problem is the to see. Sentences not meeting these pendent clause joined by one or more use of multi-syllabic, foreign, and SAT expectations will be ignored or misun- dependent clauses. Complex sentences words. Writers should strive for sim- derstood.1 always use a subordinator like “after,” plicity. It’s better to be understood Sentences should move from simple “although,” “because,” “since,” or than to drive readers to a dictionary. to complex information and from old “when” or a relative pronoun like It’s better to make readers feel smart to new information to let readers tran- “that,” “who,” or “which.” When a than stupid. sition from one idea to the next. complex sentence begins with a sub- A word-choice problem unique to Sentence length is also important. ordinator, a comma is required at the legal writing is legalese. “Legalese” Long sentences mean that readers are end of the dependent clause. Example: is made up of words that appear less likely to grasp and retain writ- “Although the lawyer edited his legal but carry no meaning. Examples: ing. Keep sentences 25 words or less, brief, he kept the metadiscourse.” No “aforementioned,” “hereinafter,” and with one thought. Add a period every comma is required when the indepen- “theretofore.” Legalese, the opposite of two or, at most, three lines of text to dent clause begins the sentence with plain English, annoys and gives a false keep sentences short.2 Too many short subordinators in the middle. Example: sense of precision. sentences sound angry and impatient, “The lawyer is editing his brief because however. Mix short with long sentenc- it is due tomorrow morning.” Grammar, Punctuation, es to avoid monotony. A compound-complex sentence and Spelling Subjects should be featured at the has at least two independent clauses Here are 10 tips to make documents beginning of most sentences. Failing and one or more dependent clauses. error-free, at least on the surface. to feature the subject causes confu- Example: “When the litigator won the • Get an editor. Have fresh eyes sion and incoherence. Simple sentenc- case, the defendant jumped for joy, and read the document. Writers don’t see es have a subject and a predicate to the audience applauded.” their own mistakes, especially after indicate what the subject did. Example: they’ve scoured a document for hours. “I enjoy legal writing.” At the core Word Choice They see what they meant, not what of every subject is a noun (person, Lawyers must choose words that reflect they wrote. Only attentive editing place, thing, and concept) or pronoun. what they want to convey. CONTINUED ON PAGE 50

64 | October 2009 | NYSBA Journal

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