“TAMMANY HALL HAD a RIGHT to EXPECT PROPER CONSIDERATION” the Judicial Nominations Controversy of 1898 by WILLIAM H

MARCH/APRIL 2009 VOL. 81 | NO. 3 JournalNEW YORK STATE BAR ASSOCIATION

“Tammany Hall Had a Also in this Issue Accidents Abroad Right to Expect Proper For a “Civil” Litigation The Struggles of Consideration” Lawyer-Leaders The Judicial Nominations Controversy of 1898 Changes to New York’s Power of Attorney Law by William H. Manz

BESTSELLERS FROM THE NYSBA BOOKSTORE

March/April 2009

Construction Site Personal Injury New York State Physician’s NEW! FFormsorms Litigation — New York Labor Law HIPAA Privacy Manual FFormsorms §§ 200, 240(1), 241(6) (2008 Revision) A hands-on tool for health care providers oonn CCDD NYSBA Practice Forms on CD-ROM—2008–2009 oonn CCDD Perhaps no single scheme of statutory causes of action and their legal counsel, this publication Access nearly 800 forms for use in has initiated more debate. This text provides a road provides guidance for a physician’s office to respond to routine, everyday inquiries daily practice. map through this at-times confusing area of law. about protected health information. PN: 61509 / Member $280 / List $315 Includes a summary of key case developments. PN: 4167 / Member $75 / List $95 / 288 pages PN: 4047 / Member $80 / List $110 / 480 pages New York Lawyer’s Deskbook, Practitioner’s Handbook for Second Edition (2008–2009) Debt Collection and the Enforcement Appeals to the Court of Appeals, WINNER OF THE ABA’S CONSTABAR AWARD of Money Judgments, Second Edition Third Edition The Second Edition consists of 27 chapters, each (2008) This new edition updates topics on taking and covering a different area of practice that provides Monetary awards determined in court cases involve perfecting criminal and civil appeals, alternative advice within that particular area of law. an array of procedures that attorneys must know. The procedures for selected appeals, and how to write PN: 4150 / Member $250 / List $325 / 2,490 pages new second edition, under the editorship of Paul A. and present the appeal. New York Lawyer’s Formbook, Peters, not only updates case and statutory law but also PN: 4017 / Member $48 / List $57 / 234 pages addresses new issues within this field, providing in-depth Second Edition (2008–2009) topical analyses. Public Sector Labor and The Formbook is a companion volume to the PN: 40308 / Member $125 / List $170 / 548 pages Employment Law, Third Edition (2008) New York Lawyer’s Deskbook and includes 21 sections, each covering a different area of practice. Domestic Violence (2008) It’s the leading reference on public sector labor and PN: 4155 / Member $250 / List $325 / 3,256 pages employment law in New York State. Everyone will Domestic violence cases now have a bearing on every benefit from its comprehensive coverage, whether New York Residential Landlord-Tenant aspect of family and matrimonial law. This book is a they represent employees, unions or management. practical guide, providing needed information from Law and Procedure (2008–2009) Practitioners new to the field, as well as seasoned New York residential landlord-tenant law is experts in the field. attorneys, will benefit from the book’s clear, well- daunting to newcomers and the experienced alike. PN: 4076 / Member $35 / List $45 / 328 pages organized coverage of what can be a very complex This monograph introduces the fundamentals of area of law. residential landlord-tenant law and offers a guide Entertainment Litigation PN: 42057 / Member $150 / List $185 / 1,568 pp. to the procedural mechanics practitioners face in This reference covers the fundamental issues that are landlord-tenant disputes. central to a creative artist’s career. It is a basic, practi- Real Estate Titles, PN: 4169 / Member $72 / List $80 / 108 pages cal guide that gives creative artists and their represen- Third Edition tatives insight as to how to avoid the courtroom. The Plaintiff’s Personal Injury Action PN: 4087 / Member $35 / List $55 / 230 pages An all-time bestseller, this edition is edited by James M. Pedowitz, Esq., a nationally renowned expert in real in New York State (2009) estate law and title insurance, and authored by some This treatise answers the tough questions faced by Impasse Resolution (2008) of the most distinguished practitioners in the field. It’s the plaintiff’s personal injury attorney every day – This publication provides both an overview and an essential guide to the many complex subjects sur- liens, special needs trusts, structures, Medicare and in-depth discussion of the impasse resolution proce- rounding real estate law. Medicaid, conflicts of interest, workers’ compensa- dures under the Public Employees Fair Employment PN: 521007 / Member $150 / List $180 / 1,632 pages tion, no-fault, bankruptcy, representing a party in Act, commonly known as the Taylor Law. infancy, incompetency, and wrongful death. PN: 4122 / Member $30 / List $40 / 124 pages Representing People with Disabilities, PN: 4181 / Member $175 / List $225 / 1,734 pages Third Edition Foundation Evidence, Questions and Legal Careers in New York State A comprehensive reference that covers the myriad Courtroom Protocols, Second Edition Government, Ninth Edition (2008) legal concerns of people with disabilities, it is the The second edition, along with its collection of For law students and lawyers considering careers ideal reference for those who want a “one-stop” forms and protocols, has four new chapters: Pro Se and/or work experiences in public service with the source for a thorough overview of the legal frame- Defendants, Courtroom Closure, Burdens of Proof State of New York, this expanded edition includes work affecting individuals with disabilities. and Summations. comprehensive information on employment PN: 42158 / Member $160 / List $200 / 1,588 pages PN: 41078 / Member $50 / List $60 / 172 pages opportunities with the various levels of state government. Model Partnership Agreements PN: 41298 / Member $30 / List $50 / 264 pages Here is a guide for solo and small-firm practitioners who wish to establish a partnership or other business form, or to formalize relationships in a law practice that has no formal structure. PN: 41358 / Member $50 / List $60 / 142 pages Expand your professional knowledge 1.800.582.2452 www.nysba.org/pubs Mention Code: PUB0459 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. NEW YORK STATE BAR ASSOCIATION JournalNEW YORK STATE BAR ASSOCIATION

BOARD OF EDITORS EDITOR-IN-CHIEF David C. Wilkes Tarrytown e-mail: [email protected] Mary Grace Conneely Monticello Willard H. DaSilva Garden City Philip H. Dixon Albany Elissa D. Hecker Irvington Judith S. Kaye New York City Eileen D. Millett New York City Thomas E. Myers Syracuse John B. Nesbitt Lyons Gary D. Spivey Albany Sharon L. Wick Buffalo MANAGING EDITOR Daniel J. McMahon Albany e-mail: [email protected] ASSOCIATE EDITOR Philip C. Weis Oceanside

PUBLISHER Patricia K. Bucklin Executive Director

NYSBA PRODUCTION STAFF ASSISTANT EDITOR Joan Fucillo DESIGN Lori Herzing “The NYSBA is a wonderful, welcoming legal community Erin Corcoran EDITORIAL OFFICES where members enjoy diversity of thought, lively debate, One Elk Street educational insight, and a unique camaraderie among Albany, NY 12207 (518) 463-3200 attorneys. The professional and personal connections made FAX (518) 463-8844 www.nysba.org at NYSBA Section meetings and events last a lifetime. It is one of the most valuable resources in my practice.” ADVERTISING REPRESENTATIVE Network Media Partners Bruce Tackett Rosemarie Tully Executive Plaza 1, Suite 900 11350 McCormick Road Member since 1993 Hunt Valley, MD 21031 (410) 584-1960 e-mail: [email protected]

EUGENE C. GERHART LAST CHANCE TO RENEW FOR 2009. (1912 – 2007) Please renew your membership by March 31st. Editor-in-Chief, 1961–1998 www.nysba.org/renew2009

Thank you for your membership support. CONTENTS MARCH/APRIL 2009

“TAMMANY HALL HAD A RIGHT TO EXPECT PROPER CONSIDERATION” The Judicial Nominations Controversy of 1898 BY WILLIAM H. MANZ 10

DEPARTMENTS 27 Accidents Abroad and Inconvenient Forums 5 President’s Message BY THOMAS A. DICKERSON 8 CLE Seminar Schedule Putting the “Civil” Back in 24 Burden of Proof 33 BY DAVID PAUL HOROWITZ Civil Litigation 46 Empire State Counsel BY JONATHAN J. LERNER 51 Attorney Professionalism Forum 38 The Struggles of Lawyer-Leaders and 57 Language Tips What They Need to Know BY GERTRUDE BLOCK 58 New Members Welcomed BY ROLAND B. SMITH 60 Index to Advertisers 41 Changes for Powers of Attorney 60 Classified Notices in New York 63 2008–2009 Officers BY ROSE MARY BAILLY AND BARBARA S. HANCOCK 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 | March/April 2009 | 3

PRESIDENT’S MESSAGE BERNICE K. LEBER

A Gold Medal Career, an Agent for Change: Frederick A.O. Schwarz, Jr.

he results of the 2008 elec- lateral control over national security tions, both in New York and policy,2 Mr. Schwarz has served the Tnationwide, leave no doubt that public and our profession by bringing Americans are ready for change. But, to light important issues and essential recognizing the need for change and reforms, most notably in the area of bringing about change are two differ- campaign finance. ent things. And now, Mr. Schwarz has taken on Certainly, the transfer of leadership the mantle of eradicating the culture to a new administration is one way of secrecy, which, over the past eight to effect change. We are already see- years, has become more pervasive in ing signs that the way of doing busi- the realm of executive power and has Frederick Schwarz, and I am honored ness at the White House is shifting, lowered our moral standing around the to commend to you his thought-pro- from President Obama’s order to close globe. Mr. Schwarz spoke on the issue voking Gold Medal speech, as well as Guantanamo Bay within a year, to of secrecy, and has graciously given his enlightening book, Unchecked and Attorney General Eric Holder’s view us permission to print his thoughtful, Unbalanced: Presidential Power in a Time that waterboarding is torture. But, how informative remarks in this issue of the of Terror. We serve the public and our does real change happen – change that Journal. profession best when we remember isn’t tied to the monarchical convic- Mr. Schwarz has said, “The story that there is always something new to tions or partisan notions of our politi- of America lies in the law. . . . And learn, always another viewpoint worth cal leaders?1 lawyers tell the story. Every day, every considering. I trust that you will learn In his powerful message, our 2009 step of the way, lawyers [are] trying to as much as I have from our distin- Gold Medal recipient, Frederick A.O. move America toward a better, fairer, guished colleague, Mr. Schwarz. Schwarz, Jr., urged: “Change needs fuller life.” This is the higher calling to teachers.” In accepting the State Bar’s which we all aspire. Law as a calling Abuses of Presidential Power: highest honor at the President’s Dinner also has guided Mr. Schwarz through- Where Do We Go From Here? on January 31, 2009, Mr. Schwarz out his formidable legal career. Addressing the Culture of Secrecy explained that public access to infor- Mr. Schwarz aptly reminds us that Introduction mation, even facts detailing mistakes answering this higher call requires Our country just voted for change. made by presidential administra- more than being a counselor; law- And change we must. tions, is key to public understanding, yers are teachers. Indeed, educating Focusing on some elements of which then leads to the public’s outcry the public – both young and old – is change particularly central to lawyers, for change. Mr. Schwarz’s writings, one of the State Bar’s core objectives. we must reverse overreactions to 9/11 speeches, and career path reveal that From our Law, Youth and Citizenship such as Guantanamo, torture, and he is one of our profession’s greatest program to our People’s Law School, extraordinary rendition to torture. teachers, and perhaps one of our most which recently launched a Web-based We must reject Dick Cheney’s the- prolific agents of change. program for those facing mortgage ory that a president has the right to From his early work assisting the foreclosure,3 we assist our clients and “assert monarchical notions of pre- government of Northern Nigeria in the public and thereby improve civic rogative that will permit him to exceed developing its statutory law, to his literacy. Our profound mission is to the laws.” Articulated in 1987 when public service as Corporation Counsel empower the public to seek protection Cheney was in Congress, this idea advising Mayor Ed Koch on crucial of their rights, including the right to a flowered after 9/11 in secret Justice issues such as race relations, the AIDS transparent government. crisis and good government reforms, As lawyers, we must be life-long to his latest book condemning the Bush learners, too. We can all learn a great BERNICE K. LEBER can be reached at White House’s efforts to seize uni- deal from the extraordinary career of [email protected].

NYSBA Journal | March/April 2009 | 5 PRESIDENT’S MESSAGE

Department opinions that permitted herding of Japanese citizens into con- did not even mention covert action. the President to approve, for example, centration camps early in World War However, a year later, the National torture and warrantless wiretapping in II, however wrong, were all public acts. Security Council secretly authorized violation of the law. So too was Lincoln’s unilateral suspen- the CIA to engage in covert action. And we must restore justice to the sion of habeas corpus. Neither Congress (nor the public) had Justice Department by cleansing it of But starting in the late 1940s, more any chance to debate this transforma- partisan abuses. and more questionable or improper tive change, or to consider what covert These actions and policies under- government actions have been decided tactics might be consistent with the mined the Constitution, tarnished in secret without meaningful debate. nation’s character. the rule of law, and compromised And then their implementation has Until the Church Committee, and American values. President Obama is been hidden from the public, and often for much of the time since, Congress on his way to rejecting them all. This – from Congress. The number of docu- compounded the risks posed by exces- coupled with Barack Obama’s election ments that are stamped secret has also sive executive branch secrecy by limit- itself – will help strengthen America grown exponentially, particularly in ing itself to oversight that was tepid, by beginning to restore our standing the last eight years. at best. The FBI was given a free ride. in the world. Everybody who knows modern Congress also found it easier, and But the hard work has just begun. American government knows there is safer, to give the CIA a free pass. We must move beyond curing symp- far too much secrecy. Lee Hamilton, Congressional Committees charged toms (like Guantanamo) to addressing as Vice Chair of the 9/11 Commission, with oversight made no written record, root causes. estimated that 70% of what he saw asked no tough questions, and often A central root cause of our recent was “needlessly classified.” My own indicated a preference not to know move toward harmful exercises of observation in the mid-seventies as what was done. presidential power is excessive secrecy. Chief Counsel for the Senate’s Church For at least five years after 9/11, Excessive secrecy stifles debate. It neu- Committee was more qualitative than Congress was, once again, lax in its ters checks and balances. It smothers quantitative. While there were obvi- oversight. During this time, not a sin- the popular judgment that gives life to ously genuine secrets that must be gle congressional committee issued a democracy. respected, it seemed to me that far too subpoena to the White House. And, at There are two aspects of excessive much was kept secret not to protect the same time, the White House secret- secrecy. The first is nontransparent America, but to keep embarrassing and ly, and repeatedly, abused its powers. decision making by narrow coteries improper information from Americans. Unfortunately, the courts have, in of executive branch officials without In fact, in crafting covert action roles general, also been a weak counter to meaningful debate or discussion. The for both the FBI and the CIA, presi- excessive executive power, especially other is the secrecy stamp that blinds dents made a conscious decision to in the national security field. Despite outsiders to documents, coupled with keep the American public ignorant. some post-9/11 curbs on detention the executive privilege claim that Thus, leading up to World War II, powers, courts often uncritically accept stitches up the lips of witnesses. Franklin Roosevelt authorized the FBI executive demands for secrecy. And Excessive secrecy in both senses is to go beyond investigating “conduct the courts have generally failed to the subject of my talk tonight. forbidden by the laws of the United recognize how our growing culture of States” by throwing in the amorphous government secrecy undermines our Growth of Secrecy term “subversion.” (As it turned out, constitutional frame. Human nature pushes powerful peo- this vague term helped open the door ple toward secrecy. It seems easier. It to many secret FBI misdeeds over the Harm Caused by avoids challenge. It fosters illusions of following decades.) Excessive Secrecy grandeur. Nonetheless, effective lead- In ordering the Bureau to expand The harm caused by excessive secrecy ers know that secrecy often produces its domestic security role, Roosevelt is not an abstraction. Undue govern- decisions that are less wise. agreed with Bureau Director Hoover ment secrecy threatens our most basic Crisis has often made it tempting that it was “imperative” to proceed constitutional and democratic princi- to ignore the wise restraints that make “with the utmost degree of secrecy. ples. The combination of secrecy and us free, and to rush into actions that . . to avoid criticism or objections.” a lax Congress also greatly increases do not serve the nation’s long-term Therefore, the expansion was not risks of abuse and of decisions harmful interests. revealed – even to Congress. to America’s long-term interests. From the Founding to the 1940s, The story is the same for the CIA. Our Founders recognized, and our these actions were usually public. In creating the CIA, the 1947 National history proves, that decisions made in Thus, the Alien and Sedition Acts in Security Act emphasized coordina- secret without debate are more likely 1798, the Palmer Raids in 1919, and the tion and evaluation of intelligence. It to be bad decisions. As James Madison

6 | March/April 2009 | NYSBA Journal put it, “[a] popular Government, with- Based upon its investigation, and change. This truth lies behind the say- out popular information, or the means exposure, of secret, “ruthless” Cold ing that “I don’t care who writes the of acquiring it, is but a Prologue to a War tactics deployed both at home and laws as long as I can write the songs.” Farce or a Tragedy; or, perhaps both. abroad, the Church Committee con- (Of course one really wants to do both, Knowledge will forever govern igno- cluded that “[t]he United States must but always remembering that popular rance: And a people who mean to be not adopt the tactics of the enemy. understanding is a midwife for laws.) their own Governors, must arm them- Means are as important as ends. Crises Change needs teachers. And what selves with the power which knowl- make it tempting to ignore the wise needs be taught is that good policy edge gives.” restraints that make [us] free. But each is more likely when derived through Similarly, as Madison explained in time we do so, each time the means transparency. the 51st Federalist, because people are we use are wrong, our inner strength, Similarly, for presidential decision not “angels,” government must, among the strength which makes us free, is making, the controlling factor is not other things, “control itself.” But, if, as lessened.” laws, but understanding – a presi- is increasingly the case, secrecy blinds Apt three decades ago, those words dent’s understanding of history, as Congress, the public, and others to the are even more apt today. For to com- well as the confidence, maturity, intel- truth, “control” is impossible. bat the unspeakable acts of Bin Laden lectual curiosity, interest in debate and Of course, citizens have the final and his ilk, the Bush Administration open-mindedness of each president. checking power at the ballot box. But secretly resorted, for example, to tor- Fortunately, our new President seems to play their proper role, citizens must ture – using techniques copied from to have an extremely open and reflec- know what is being done by their gov- our Korean War enemies. tive style of making decisions. ernment. The post 9/11 reasoning of Alberto Through more attention to civic lit- Making decisions without debate, Gonzales and John Yoo could have eracy we can increase the chances of and with the expectation of perpetual been copied from the 1954 task force. future presidents doing the same. secrecy, has harmful consequences. Thus, they claimed the “nature of the To build the case for change, we also One is that the “decider” is less likely to new war” rendered “obsolete” the need to show how excessive secrecy consider risks. The Church Committee Geneva Conventions’ limit on ques- has harmed the country. If, as a nation, observed this in its analysis of covert tioning prisoners – forgetting the limits we knowingly blind our eyes to the action. Thus, for example, five decades were designed to prevent repetition truth, we increase the risk of repetition later we are still living with the harm of World War II torture of American when the next crisis comes. We need caused by the CIA’s overthrow of prisoners. Indeed, after the Gonzales to lay out for the public and for future Iran’s Mohammad Mossadegh. and Yoo opinions, our government administrations what went wrong and Only time will tell how lasting will engaged in acts for which we had what went right. be the damage from our misinformed prosecuted Japanese soldiers as war Part of knowing the truth is sim- foray into Iraq, or the government’s criminals. ple: the Obama Administration should secret decisions to descend to torture Because they abandoned America’s release all the Justice Department legal and indefinite detention. But clearly, values, the secret policies of the recent opinions that purport to justify torture, our nation has been hurt in the short Administration made us less safe . rendition to countries that torture, or term. As Colin Powell said after some Less safe because our allies became warrantless wiretapping, as well as post-9/11 tactics had been exposed: less willing to cooperate. And less safe those that conclude presidents have “The world is beginning to doubt the because we handed our enemies a some supposed “inherent power” to moral basis of our fight against terror- powerful recruiting tool. ignore laws. There is no justification ism.” for keeping such opinions secret. Their Similarly, when programs are What to Do? release will help “arm” the people and devised and operated in secret, they Of course there are laws and execu- the Congress “with the power which all too often abandon American values. tive orders that can be passed or pro- knowledge gives.” Indeed, they are far more likely to use mulgated to combat excessive secrecy. But there is more to do to let the tactics of the enemy. This was explicitly President Obama’s first executive order public know the truth and learn the recommended by the secret report of began to open up government. And lessons. This is why I recommend the a high level presidential task force in the Brennan Center has just completed creation of a non-partisan independent 1954. In the Cold War, the task force a lengthy report calling for legisla- Commission with a mandate to inves- argued, “hitherto acceptable norms of tion to repudiate claims of executive tigate national counter-terrorism poli- human conduct do not apply.” Tactics privilege that block proper inquiries by cies. This is a different approach than “more ruthless than [those] employed Congress. taken by people who clamor for crimi- by the enemy” should be adopted if But legislation seldom comes unless necessary. the public is convinced of the need for CONTINUED ON PAGE 9

NYSBA Journal | March/April 2009 | 7 NYSBACLE Tentative Schedule of Spring Programs (Subject to Change)

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

†13th Annual New York State and City Tax †Advanced Tax Return and Financial Statement Institute Analysis for Matrimonial Lawyers Fulfills NY MCLE requirement (8.0): 7.0 professional (9:00 am – 1:00 pm) practice/practice management; 1.0 ethics Fulfills NY MCLE requirement (4.0): 4.0 professional March 11 New York City practice/practice management April 24 Rochester; Westchester Legal Malpractice Litigation May 8 Long Island (9:00 am – 1:00 pm) May 29 Syracuse March 20 Albany; New York City; Tarrytown June 5 New York City March 27 Long Island; Syracuse June 12 Albany Bridging-the-Gap Civil Trial Practice in the Ninth Judicial District (two-day program) (3:00 pm – 5:00 pm) Fulfills NY MCLE requirement for all attorneys (16.0): 6.0 skills; 7.0 professional practice/practice management; April 30 White Plains 3.0 ethics International Practice Day/Beginner Level March 25–26 New York City April 30 New York City Women on the Move Practical Skills Series: Basic Elder Law Practice (12:30 pm – 5:00 pm) May 5 Albany; Buffalo; Long Island; Fulfills NY MCLE requirement for all attorneys (4.5): 2.0 Rochester; Syracuse skills; 1.5 professional practice/practice management; 1.0 May 11 Westchester ethics May 15 New York City April 2 Albany Basic Securities Law for the Business Practitioner Introductory Lessons on Ethics and Civility: 10th Anniversary Program in Everyday Lawyering May 7 New York City (9:00 am – 1:00 pm) DWI on Trial – The Big Apple IX Seminar Fulfills NY MCLE requirement for all attorneys (4.0): 4.0 (two-day program) ethics May 7–8 New York City April 3 Rochester April 17 Albany; New York City 2009 Insurance Coverage Update April 24 Buffalo; Long Island May 8 Albany; Buffalo; New York City May 15 Long Island; Syracuse Practical Skills Series: Family Court Practice Fulfills NY MCLE requirement for all attorneys (7.0): 4.5 General Auto Liability skills; 1.5 professional practice; 1.0 ethics May 13 New York City; Syracuse April 20 Albany May 21 Albany April 21 Buffalo; Long Island; New York May 28 Long Island City; Rochester; Syracuse; May 29 Buffalo Westchester Estate Planning for the Middle Class Client Starting Your Own Practice May 14 Syracuse (8:30 am – 5:00 pm) May 20 Albany; Long Island April 21 New York City May 27 Buffalo †5th Annual International Estate Planning Institute June 3 Rochester (two-day program) June 9 New York City April 23–24 New York City June 12 Westchester

† Does not qualify as a basic level course and, therefore, cannot be used by newly admitted attorneys for New York MCLE credit. PRESIDENT’S MESSAGE CONTINUED FROM PAGE 7 nal investigations. Instead, it reflects the approach of Abraham Lincoln who, soon after his 1864 reelection, said we should “study the incidents” of recent history, “as philosophy to learn wisdom from, and none of them 2009 Health Law Institute – Mini Masters in Public Health as wrongs to be revenged.” May 15 Westchester Of course, as President Obama said, his Administration wants to move for- †International Practice Day/Advanced Level ward and “make sure that moving for- May 15 New York City ward, we are doing the right thing.” Practical Skills Series: How to Commence a Civil Lawsuit But to move forward wisely, we need to understand the past. We need to under- May 19 Albany; Buffalo; Long Island; stand and explore root causes as well New York City; Syracuse; Westchester as symptoms. We need to understand whether it is correct, as I argue, that Effectively Handling Consumer Bankruptcies America loses its greatest strength when (9:00 am – 1:00 pm) it abandons its values. President Obama May 28 New York City surely understands this. But the public May 29 Long Island needs to understand as well. For with- June 5 Rochester out public understanding, it is almost inevitable that the next time we face a June 10 Albany; Syracuse terrorist incident – as we surely will – New York State’s Brownfields Program and Beyond the country will slip back into excess. June 2 New York City America is best when we “confront June 4 Albany our mistakes and resolve not to repeat them. If we do not, we will decline; June 10 Long Island but, if we do, our future will be worthy June 11 Syracuse of the best of our past.” Practical Skills Series: Collections and the Enforcement And so to finish: of Money Judgments Instead of the silence of secrecy, let June 2 Albany; Long Island; freedom ring. New York City; Syracuse; Instead of the darkness of secrecy, Westchester let the light shine. And let us pledge that the only Practical Ways to Handle Employment Issues in Today’s thing that ends up hidden in a “secure, Volatile Economy undisclosed location” is . . . secrecy June 3 Albany itself. ■ June 10 Rochester June 12 New York City 1. On January 27, 2009, President Obama also created a Task Force whose duty is to propose changes in the manner of trying Guantanamo Bay detainees. Operating the New York Not-for Profit Organization Our State Bar advocated for and, with the skillful June 9 Albany voice of Fernando Bohorquez, Chair of our Civil Rights Committee, succeeded in convincing the June 16 Rochester ABA House of Delegates on February 16, 2009, to June 18 New York City urge President Obama to make certain changes so that detainees receive basic, fundamental human rights. A copy of the resolution can be found at To register www.nysba.org/guantanamoresolution. The State Bar is sending copies to President Obama and his or for more information call toll free Task Force. 2. Frederick A.O. Schwarz, Jr. & Aziz Z. Huq, 1-800-582-2452 Unchecked and Unbalanced: Presidential Power in a Time of Terror. In Albany and surrounding areas dial (518) 463-3724 3. This program, entitled “Saving Your Home • Or fax your request to (518) 487-5618 from Foreclosure,” can be found at www.nysba.org/ peopleslawschool. www.nysba.org/CLE (Note: As a NYSBA member, you’ll receive a substantial discount) NYSBA Journal | March/April 2009 | 9 Richard Croker David Leventritt Elihu Root Michael T. Daly Hon. Joseph F. Daly “Tammany Hall Had a Right to Expect Proper Consideration” The Judicial Nominations Controversy of 1898 By William H. Manz WILLIAM H. MANZ ([email protected]) is Senior Research Librarian, St. John’s University School of Law. He received his law degree from St. John’s and his undergraduate degree from the College of the Holy Cross. Mr. Manz is the author of Gibson’s New York Legal Research Guide (William S. Hein & Co., Inc. 2004) and The Palsgraf Case: Courts, Law, and Society in 1920s New York (LexisNexis Matthew Bender 2005).

Justice Daly was elected by Tammany Hall after he was discovered by Tammany Hall, and Tammany Hall had a right to expect proper consideration at his hands.”1 This candid statement made in 1898 “ by Boss Richard Croker, explaining his refusal to renominate a respected state supreme court justice, provoked a major controversy over politics, patronage, and judicial nominations. It still is the most contentious episode in the long- running debate over the selection of judges in New York, an issue that most recently surfaced in January 2008, when Justice Antonin Scalia, writing for the Supreme Court in New York State Board of Elections v. Lopez Torres,2 rejected claims that New York’s judicial nominating convention system violates the First Amendment.3 Elective Judiciary Lopez Torres and the Croker-Daly affair both resulted from the elective judiciary system established by the Constitution of 1846. Until 1821, New York judges were chosen by a special “Council of Appointment,” a method that was later changed to appointment by the governor with the consent of the state Senate. The 1846 switch to an elective judiciary was due in part to popular democratic sentiments that originated with the Andrew Jackson Administration in the 1820s and to dissatisfaction with an appointed judiciary spawned by the Anti-Rent movement, which swept through upstate New York during the early 1840s.4 Fears that politicians would seek to influence judicial selections were realized in 1857, when Mayor Fernando Wood attempted to block the renomination of Court of Appeals Judge Hiram Denio, because Denio had upheld a law establishing a state-controlled police force in New York City.5 Wood failed, but in 1863 the city’s Democratic leadership successfully replaced two well- regarded judges, Superior Court Chief Justice Joseph F. Bosworth and Court of Common Pleas Judge Henry Hilton, with John H. McCunn and Albert Cardozo. Particularly galling to many was the election of McCunn, described by the New York Times as “probably the worst man that ever offered himself as a candidate for a judgeship in any civilized country.”6 The paper also made the dire prediction that in the future “we should have doled out to us from the Bench the rough and pungent wisdom of the pot-house and the prize-ring.”7

NYSBA Journal | March/April 2009 | 11 Despite complaints about the elective judiciary, del- mother relocated the family to New York City. As a youth, egates to the Constitutional Convention of 1867 did not Daly was a member of an amateur theatrical society and attempt to restore the old appointive system, limiting is credited with writing several plays that were originally their reform efforts to extending the length of judicial attributed to his brother, Augustin. He began his legal terms. In a referendum held six years later, the voters career as an office boy with the firm of Robert B. and decisively rejected a return to the old system. The pre- Silas Weir Roosevelt, uncles of Theodore Roosevelt, ris- vious year, the newly established Bar Association had ing to clerk, and then managing clerk, before becoming a struck a blow in support of judicial quality with its suc- member of the firm after his admission to the bar in 1862. cessful effort to oust three Tammany judges, Cardozo, By 1867, he was a partner in his own firm, Daly, Henry McCunn, and the equally notorious George G. Barnard. & Olin. Thereafter, Tammany Hall refrained from nominating the Daly’s public career began in 1864 as counsel for the likes of McCunn and calls for reform in the judicial selec- Citizens’ Association, a municipal reform group founded tion process became more muted. by businessman and philanthropist Peter Cooper. Six years later, he was nominated for justice of the Court of Common Pleas by Tammany Hall. According to Boss Tweed, Daly and two other prominent Association Tammany’s effort to improve members, Nathaniel Sands and Stephen M. Henry, were the image of its judicial candidates nominated to “take care of them,” and because they were “strong men who could help us in every way.”10 Daly, was successful. who maintained that he’d never spoken to Tweed in his life, believed he was slated by a top Tweed associate, attorney Peter B. “Brains” Sweeny, because Tammany wanted Judicial selection was scarcely mentioned at the to “exhibit an intention to put on the bench the most Constitutional Convention of 1895, the same year that a independent and fearless men who could be found” and prominent reformer, attorney James C. Carter, wrote to “exhibit a determination to elevate the judiciary.”11 Such Governor Levi Morton regarding seven New York City intention is reflected in Tammany-connected Corporation trial judges, stating: Counsel Richard O’Gorman’s 1870 campaign speech, I suppose all of them owe their positions pretty much which praised the organization’s judicial slate as one of to Tammany Hall, and I have been surprised at two which any party or community could be proud.12 things: first, that that organization should have select- Tammany’s effort to improve the image of its judi- ed such good men, and, second, that they should have cial candidates was successful. The New York Times, exhibited so little subserviency to the power to which which only a few years before had been condemning they are indebted for their places.8 Tammany’s judicial nominees in the harshest terms, However, this view of Tammany’s control of judicial described the Common Pleas ticket as “a very good one” nominations abruptly changed when it became known and characterized Daly as “a young lawyer of rare prom- that Croker was refusing to renominate Justice Daly. ise.”13 Following the common practice of the day, Daly paid an assessment of $3,500 for campaign costs14 and Justice Joseph F. Daly along with the entire Tammany ticket was easily elected. Joseph F. Daly, the object of Croker’s displeasure, had In 1884, Daly was renominated by Tammany, paid assess- been on the bench since 1870. Interested in the theater, ments totaling $7,000,15 and was duly reelected. Six years literature, and rare books, he was described as “an exem- later, he was elevated to chief justice of the Court of plar of the character of a cultured Catholic gentleman.”9 Common Pleas, but when that court was abolished by the Daly was a member of the Law Institute, the Geographic Constitution of 1896, he became one of the 22 supreme Society, and the Friendly Sons of St. Patrick. He was also court justices in the First Judicial District. president of the exclusive Catholic Club, and in May 1898 Daly enjoyed a good reputation as a jurist. He was played a prominent role in the celebration of the silver praised for the “high order of his judicial work and his jubilee of Archbishop Michael Corrigan. The brother of unswerving integrity.”16 While on the bench, his more one of the city’s leading theater managers and produc- notable cases included the applicability of Sunday clos- ers, Augustin Daly, Joseph Daly was a founding member ing laws to theatrical productions,17 whether New York of the Players Club, an organization intended to bring City stock held by the Sinking Fund commissioners together leading lawyers and businessmen with persons counted against the city’s debt limit,18 and an acrimo- from the theatrical world. nious dispute over the dramatization of Mark Twain’s Born in Plymouth, North Carolina, in 1840, Daly was novel The Prince and the Pauper.19 He also had his share of the son of Irish immigrant Denis Daly, a shipmaster and unseemly domestic relations cases, including the demand lumber merchant. After his father’s death in 1849, his of a young man that his uncle’s widow return the $28,000

12 | March/April 2009 | NYSBA Journal he’d given her after they allegedly agreed to marry,20 and a divorce suit where a woman accused her wealthy hus- band of having an affair with her sister.21

Boss Richard Croker Unlike Daly, Richard Croker had no reported interest in the theater or the arts, but instead favored strong cigars and race horses. In manner and appearance, however, the Boss did not conform to the stereotypical image of a machine politician. Instead, the usually taciturn Croker was once described as “a mild-mannered, soft-voiced, sad-faced, green-eyed chunk of a man.”22 His supporters lavishly praised him; wealthy Democratic attorney Henry Lauren Clinton once characterized Croker as “the shrewdest, most far-sighted, the ablest, most popular, and successful leader Tammany Hall has had within the last forty years.”23 To supporters, he projected an aura of sagacity, and it was said that “[n]o man that ever lived was half as wise as Croker sometimes looks.”24 Naturally, good government reformers took a decid- edly different view, seeing Croker as the personifica- tion of all the evils of late-19th-century New York City politics. His often vociferous critics included the New York Times, which variously derided him as “a notorious ruffian”25 and a “Tammany politician of the lowest type.”26 Whatever one’s opinion of Croker, however, his political power was undeniable. As reformer Carl Schurz remarked in 1898: “It is no mere jest when people call Richard Croker the King of the City of New York.”27 The so-called “king” enjoyed a lifestyle consistent with such a title. By the early 1890s, Croker had become enormously wealthy, not by stealing from the city trea- sury like the Tweed Ring, but through what he called “honest graft” – lucrative investments made available by those anxious to curry favor with the powerful political boss. With his wealth, Croker built an expensive home, purchased a horse farm, and acquired a string of race horses. He took annual vacations to Europe, and while in Britain lived the life of an aristocratic sportsman. Separated from his wife by 1898, he moved into an apart- ment at the newly refurbished and lavishly appointed Democratic Club at 617 Fifth Avenue. Born in Blackrock, Ireland, in 1843, and brought to the United States at the age of two, Croker’s first Manhattan home was a shanty town located in what is now west- ern Central Park. After his father, Eyre Coot Croker, a blacksmith and veterinary, obtained regular employment with a horse car company, the family was able to move to a home near Third Avenue, at the edge of the so-called “Gas House District.” The future boss received a mini- mal education in the public schools, and as a teenager was employed in a railroad machine shop. Adept with his fists, the burly Croker won several prize fights and

CONTINUED ON PAGE 16

NYSBA Journal | March/April 2009 | 13

CONTINUED FROM PAGE 13 Tammany Hall Returns By 1897, the electorate had soured on reform government, became a leader of a group of young toughs known as the particularly Theodore Roosevelt’s efforts to enforce the Fourth Avenue Tunnel Gang. Sunday liquor laws. In the words of one commentator, Croker entered Democratic politics as a member of a the Strong Administration “had got between the people Gas House District faction led by Jimmy “the Famous” and its beer.”30 Sensing victory, Croker made a grand O’Brien, a Tweed district leader. He was rewarded in 1868 return from Britain and retook control of Tammany from with a seat on the Board of Alderman. But after O’Brien James C. Sheehan, a none-too-popular former Buffalo fell out with Tweed, Croker along with every member of resident who had been in charge in his absence. He then the Board was legislated out of office by the new Tweed- engineered the mayoral nomination of an obscure City backed Charter of 1870. O’Brien’s faction soon rejoined Court judge, Robert A. Van Wyck, who was elected eas- Tammany Hall, but with the fall of Tweed, O’Brien again ily, receiving more votes than Fusion candidate Seth Low split from the organization. Croker, however, remained, and Republican Benjamin Tracy combined. attaching himself to the new Tammany boss, “Honest Croker and Tammany Hall expected even greater John” Kelly, and was elected a coroner in 1873. things in the gubernatorial election of 1898. The Boss’s A year later, an Election Day brawl with a group led hand-picked candidate, the Mayor’s brother, Augustus by O’Brien almost brought a sudden end to Croker’s Van Wyck, was a relatively unknown Brooklyn supreme career. An O’Brien supporter was fatally wounded, but court justice with a spotless reputation. His opponent,

O’Brien and several supporters testiﬁ ed that Croker had indeed shot the victim, but the defense produced several witnesses who claimed that Croker was exchanging blows with O’Brien at the time of the shooting. before dying stated that it was Croker who had shot him. Theodore Roosevelt, was not particularly popular in Croker denied shooting anyone and maintained that he New York City, and the Republican Party had been hurt never carried a gun. At trial, O’Brien and several support- by an Erie Canal reconstruction scandal, and charges of ers testified that Croker had indeed shot the victim, but mismanagement of the recently ended Spanish-American the defense produced several witnesses who claimed that War. Croker predicted a 100,000-vote margin of vic- Croker was exchanging blows with O’Brien at the time tory, while a report in the New York Herald of October 14 of the shooting. The jury deadlocked at six-to-six and maintained that so many voters had swung over to the Croker was released; there was no second trial, and in Democrats that Van Wyck would win by 70,000 votes.31 subsequent years the general consensus was that he did not fire the fatal shot.28 Ingratitude Despite his murder trial, Croker won reelection as a New York City Democrats were elated by the prospect of coroner in 1876, but he did not survive the Republican a Van Wyck victory, but many were disturbed by rumors and anti-Tammany victory in the 1879 elections, finishing that Tammany Hall was not going to renominate Justice last among eight candidates.29 Thereafter, Croker did not Daly. These rumors were soon confirmed when Daly was seek elective office, but instead concentrated his efforts on told not to expect renomination because of his refusals Tammany politics and making himself indispensable to to make a patronage appointment and sign a judicial “Honest John” Kelly. After Kelly’s death in 1884, Croker order,32 actions that violated Croker’s conceptions of was one of the group of four who assumed control, and gratitude, party discipline, and loyalty. As the Boss once by 1886 he was the undisputed leader of Tammany Hall. said, “gratitude is the finest word I know. I would much Under Croker’s leadership, Tammany won four con- prefer a man to steal from me than to display ingrati- secutive mayoral elections, but in 1894, sensing that the tude.”33 He believed that “[l]egitimate patronage is legiti- Lexow Committee’s revelations of widespread police cor- mate politics.”34 And he did not exempt judges, candidly ruption made a victory by the reformers all but certain, he admitting at the Mazet Committee hearings in 1899 that announced his retirement and left for England. they should “appoint their subordinates as a true mem- As expected, Republican mayoral candidate, William L. Strong, crushed Tammany Democrat Hugh J. Grant in 1894. CONTINUED ON PAGE 18

16 | March/April 2009 | NYSBA Journal

CONTINUED FROM PAGE 16 events at Cooper Union, Apollo Hall, and Carnegie Hall. A Committee of One Hundred, which included many ber of the party should . . . [and] [i]n all matters of patron- prominent attorneys, was formed to support Daly and age, they should consider the organization.”35 Cohen. Justice Daly had angered Croker when he refused Among Croker’s most vocal critics was Elihu Root, to appoint Michael T. Daly chief clerk of the Court of Chairman of the Bar Association’s Judicial Nominations Common Pleas. Known as Croker’s “second self,” Michael Committee. At the Cooper Union meeting, Root said: T. Daly was a loyal, long-time city office holder, who had “The question is whether the people of this city, with the served as clerk of both the Marine Court and City Court. issue clearly drawn, are going to approve the domination The Common Pleas clerkship had been held for years by of the courts by Mr. Richard Croker.” Not content with one-time Tammany sachem Nathaniel Jarvis. But, in 1889, attacking Croker and endorsing Daly and Cohen, Root Jarvis, already accused of dissipating the $100,000 estate induced the Association to pass a controversial resolu- of a Bombay merchant declared incompetent while visit- tion, opposed by some members, condemning Tammany ing New York, was implicated in a fraudulent divorce nominee David Leventritt. Citing alleged irregularities obtained by New York County Sheriff and Tammany in his law practice years before, it stated that Leventritt’s sachem James A. Flack. When the scandal-plagued Jarvis “professional and moral standing are low” and “his pres- resigned, Samuel Jones, a wealthy ex-judge, was asked ence on the bench would lower its tone and impair its by the justices to take the position. Croker requested that credit and efficiency.”38 Jones be replaced. Justice Daly refused, maintaining that From the start, Theodore Roosevelt realized that the clerk must be an experienced attorney. the judicial independence issue could be a great help Justice Daly’s other offense was his refusal to sign an to his campaign. On October 10, before Daly had been order changing the location of judicial sales. Judicial sales officially passed over, he suggested: “Don’t you think had once been held at an auction house at 111 Broadway. we should nominate Daly! It would be a great card for When this establishment closed, the sales were moved to us.”39 Wasting little time, the Republicans did just that the Real Estate Exchange. In 1892, well-known auction- the next day. Judicial independence then became a major eer Peter F. Meyer opened a rival establishment at the theme for Roosevelt throughout the state. In Little Falls 111 Broadway address, and Croker asked that the sales he told his audience that “we should have on the bench be moved to their old location. Unknown to Daly, the men who recognize obligations to no party organization Boss was Meyer’s silent business partner. Daly refused in their functions and duties,” and added a warning to to make the order before holding a hearing so that all upstate voters that a Governor Van Wyck “could send Mr. interested parties could be heard, and again he incurred Croker’s judge to sit in judgment anywhere from Buffalo Croker’s displeasure.36 up to Plattsburgh and down to New York.”40 Agreeing When rumors started circulating that Daly would with Roosevelt, an upstate newspaper asked: “What is not be renominated, Croker began getting unwelcome there left of government if judges are to obey bosses?”41 inquiries from the judge’s supporters. These were not Croker fueled the controversy by departing from well received, and it was said that “[t]o arouse Mr. Croker his usually closed-mouth approach to political mat- to an angry mood it is necessary only to mention the ters. According to a leading Daly supporter, John D. name of Judge Daly.”37 When Tammany officially passed Crimmins, a wealthy Catholic contractor and real estate over Daly for renomination, it slated a supreme court dealer, the whole controversy might never have arisen ticket consisting of Judge James Fitzgerald of the Court if Croker had simply stated that the judge had been on of General Sessions, George Andrews who had been a the bench for 28 years and it was time to give somebody supreme court justice from 1883 to 1897, and well-known else a chance. Instead, Croker issued his statement about Manhattan attorney David Leventritt. Tammany being entitled to proper consideration from the judge. He also tried to defend Tammany’s record on judi- “What is there left of government if judges are to cial nominations, and maintained that he’d never asked obey bosses?” Daly for any favors in his life. Tammany’s failure to renominate Daly brought imme- Not content with defending Tammany’s judicial diate protests from the legal community, whose main record, Croker also went on the offensive. He character- theme was Croker’s alleged assault on judicial inde- ized the Bar Association as “nothing more than a partisan pendence. On October 16, the Bar Association endorsed machine run by Elihu Root, a Republican and a corpora- Daly and William N. Cohen, a Republican who had been tion lawyer,”42 and suggested that a new bar group be appointed to a supreme court vacancy a year and a half formed. He attacked both Root and another Association earlier by Republican Governor Frank S. Black. A petition leader, Joseph H. Choate, as “partisan trust lawyers,” supporting Daly and Cohen was signed by over 3,000 lawyers. Numerous meetings were held, including large CONTINUED ON PAGE 20

18 | March/April 2009 | NYSBA Journal

CONTINUED FROM PAGE 18 ers, including prominent Democrats, agreed. Well-known attorney William B. Hornblower observed: “[10,000] maintaining they “represent[ed] a Puritanical element, of votes, in my judgment, [were] lost to Van Wyck and whose domination this city has had enough.”43 Recalling transferred to Roosevelt because of the turning down of that Root once served as Boss Tweed’s defense attorney Judge Daly and the views expressed as to the right of the and that Daly was nominated by the Tweed organiza- Tammany organization to consideration from the Judges tion, he characterized Root’s efforts on Daly’s behalf elected by Tammany Hall and the right of the organiza- as “an attempt by Tweed’s lawyer to re-elect Tweed’s tion to control the action of the judiciary.”52 judge.”44 He also claimed that Daly was not “not an upright judge,”45 although the best Tammany could do to After the Election substantiate this statement was the charge that Daly had Roosevelt’s victory was the first in a series of setbacks for given a disproportionate number of references to his old Croker that led to his downfall as Tammany leader. In law partner, Stephen M. Henry.46 1900, he made an ill-advised venture into national politics, enthusiastically backing losing presidential candidate William Jennings Bryan. Worse, in 1901, Tammany’s A few years later, after learning mayoral candidate, Edward M. Shephard, was decisively defeated by Fusionist reformer Seth Low. Many attribut- of property transfers to his ed the defeat to an ice trust scandal: Croker and both Van Wyck brothers were revealed to be major stockholders new wife, Croker’s surviving in a company that had planned to monopolize the New children attempted to have him York City ice business and double prices. Croker retired as Tammany leader in early 1902, and declared incompetent. thereafter split his time between his Irish estate and a Florida home. In 1907, his horse won the Epsom Derby, but King Edward VII snubbed the ex-Boss by not inviting At the final Tammany election rally on November 3, him to the traditional Buckingham Palace post-race din- Croker’s allies weighed in on the issue. Register Isaac ner. Otherwise, it was Croker’s personal life that made Fromme denounced Daly as a “grinning hypocrite,” the news, including the untimely deaths in 1905 of his while Syracuse Mayor James K. McGuire compared sons Frank (in a Florida race car accident) and Herbert Croker favorably to Republican Boss Thomas C. Platt, (after an alleged visit to a Kansas City opium den), and who, he claimed, named the judges and clerks in 50 New daughter Ethel’s 1912 divorce from a stable employee and York counties. Referring to Croker’s request that Michael subsequent remarriage to a Long Island millionaire. A T. Daly be appointed clerk of the Court of Common Pleas, month after his estranged wife died, in 1914, the 71-year- prominent German-American attorney Theodore Sutro old Croker married 30-year-old Bula Benton Edmondson. stated: “It is ridiculous to say that to have expected such A few years later, after learning of property transfers to an appointment was tampering with justice. A Judge is his new wife, his surviving children attempted to have not elected to appoint clerks, but to dispense justice.”47 him declared incompetent. Croker’s death in Ireland, in On Election Day, Tammany’s entire judicial slate was 1922, set off a nasty, long-running battle over his estate victorious. Daly polled over 120,000 votes, but each of the between Bula and his children. It reached the Florida three Tammany nominees received over 160,000.48 In the Supreme Court,53 the New York State Court of Appeals,54 governor’s race, Augustus Van Wyck won New York City and the United States Supreme Court.55 by over 80,000 votes, and carried Buffalo and Albany, but Justice Daly attempted to regain a place on the state Roosevelt’s majorities elsewhere enabled him to eke out Supreme Court in 1899, running as a Republican, but was a statewide majority of 17,794 out of approximately 1.3 defeated. He then refused Governor Roosevelt’s offer million votes cast.49 Croker attributed Van Wyck’s defeat of an appointment as New York County Surrogate, but to the popularity of “the soldier candidate,” and took a in 1900, served on the commission to revise the laws of final shot at Daly and his supporter, Crimmins, labeling Puerto Rico. He also managed the estate of his brother, them “soreheads.”50 Augustin, who had died in 1899, but otherwise his activi- However, many commentators took an entirely dif- ties were largely taken up with the practice of law. In ferent view of the election results. The New York Times recognition of his service to Catholic causes, he was made stated: “To Richard Croker and to him alone belongs the a Knight Commander of St. Gregory by Pope Benedict XV responsibility for the Democratic defeat in the State of in 1916. When he died later that year, he was described New York. He enforced his brutal and selfish will in the in a New York Times editorial as “an able lawyer and an judiciary nominations at a moment when the tide was visibly carrying his party to certain victory.”51 Many oth- CONTINUED ON PAGE 22

20 | March/April 2009 | NYSBA Journal

CONTINUED FROM PAGE 20 endorsements, but there was no election law provision for taking Aurelio off the ballot, and he garnered suf- upright judge . . . [who] earned and kept the respect of ficient votes in the general election to win a seat on the the community.”56 bench.65 After the 1898 election, Tammany’s control of judi- Despite calls for reform by the Bar Association, in 1953 cial selections again ceased to be a major issue. Daly’s and 1973 gubernatorial commissions rejected eliminat- opponent in that election, the much-maligned David ing judicial elections in favor of an appointment system. Leventritt, became a respected jurist. In 1906, on a motion More recent proposals include the Feerick Commission’s by Elihu Root, the Bar Association removed its 1898 reso- plan to reform judicial elections,66 and the commission- lution condemning him, and passed another stating that based appointment plans called for by the Commission his judicial service had “been marked by ability, learning, on Government Integrity in 1988,67 the New York State diligence and a strong sense of justice.”57 Two years later, Bar Association’s 1993 Model Plan,68 and the 2006 rec- when for financial reasons Leventritt resigned to return to ommendations of the City Bar’s Judicial Selection Task his law practice, the dinner held in his honor at the Hotel Force.69 Regardless of what plan, if any, is ever adopted, Astor was attended by over 500 members of the bench the goal should, of course, be the same as many of those and bar. When he died in 1926, Root called his death a who supported Justice Daly in 1898 – placing the best “real loss,” while another commentator observed that candidates on the bench. ■ Leventritt’s record “proved the wisdom of putting on the bench men who had a large experience and practice 1. Lathrop Stoddard, Master of Manhattan: The Life of Richard Croker 203 (1931). before the bar.”58 2. 128 S. Ct. 791 (2008). 3. For a recent discussion of the judicial selection process, see James A. Judicial Selection – Judicial Quality Gardner, New York’s Selection Process is Fine – It’s the Party System That Needs In 1909, Governor Charles Evans Hughes proposed a bill Fixing, N.Y. St. B.J. (Sept. 2007) p. 42. to provide for direct primary elections for judges. Two 4. The Anti-Rent movement involved tenant farmers’ refusal to pay rents years later, a watered-down version was enacted that due under manorial land tenures that dated from the days of Dutch rule. For a history of this movement, see Charles W. McCurdy, The Anti-Rent Era in New allowed the use of party emblems on the ballot and the York Law and Politics: 1839–1864 (2001). use of party funds to promote the leadership’s candi- 5. See People ex rel. Wood v. Draper, 15 N.Y. 532 (1857). 59 dates. There was almost immediate dissatisfaction with 6. The City Judiciary Elections – Its Hopeless and Hopeful Aspects, N.Y. Times, the system, and in 1917, the New York Times editorialized: Nov. 7, 1863, at 4. “Already nearly every one sees that Judges ought to be 7. Id. selected by conventions rather than by direct primary.”60 8. Letter from James C. Carter to Governor Levi P. Morton (Feb. 19, 1895) (Levi P. Morton Papers, Syracuse University), quoted in Lewis A. Grossman, Three years later, Governor Miller called the primary sys- James Coolidge Carter and Mugwump Jurisprudence, 20 Law & Hist. Rev. 577, 601 tem “a delusion and a snare,”61 while the Times called it (2002). “wasteful and useless,” claiming that “the nomination of 9. Edward J. McGuire, The Catholic Club and Its Library, 7 Rosary Mag. 162, State and judicial officials by party conventions is a nec- 175 (1895). essary and a long step in the right direction.”62 In 1921, 10. Justice Daly and Tweed, N.Y. Times, Oct. 19, 1898, at 2 (quoting Part II, Documents of the Board of Alderman 222–23 (1877)). Nathaniel Sands was over the objections of Tammany Hall, which found the nominated for tax commissioner, and Daly’s law partner, Stephen M. Henry, primary system advantageous, the Legislature enacted a was nominated for dock commissioner. law establishing the state’s current nominating conven- 11. 1 Report of the Special Committee of the Assembly Appointed to tion system. Investigate the Public Offices of the City of New York and the Counties Therein Included 376 (1900) (“Mazet Committee Report”). Not surprisingly, the convention system did not end 12. Id. at 380. complaints about party control of judicial nominations. A 13. Tammany Nominations, N.Y. Times, May 10, 1870, at 8. particularly noteworthy incident occurred in 1931, when 14. 1 Mazet Committee Report, supra note 11, at 380. three of 12 newly created supreme court positions were 15. Id. allotted to the Brooklyn Democratic organization, with 16. Id. one nomination going to the undistinguished 31-year-old 17. See Neuendorff v. Duryea, 6 Daly 276 (Ct. Common Pleas, N.Y. Co. 1875), son of its boss, John H. “Uncle John” McCooey. The New aff’d, 69 N.Y. 557 (1877). York Times characterized this arrangement as “of the most 18. See The Sinking Fund Decision, N.Y. Times, Dec. 7, 1885, at 4; Defining the sordid kind,”63 but voter indifference was demonstrated City Debt, N.Y. Times, Feb. 2, 1886, at 8; Bank for Sav. in the City of N.Y. v. Grace, when the candidates of the “No Deal Judiciary Party” 7 N.E. 162 (N.Y. 1886). were defeated by a margin of five to one. In 1943, judicial 19. See House v. Clemens, 9 N.Y.S. 484 (Sup. Ct., N.Y. Co. 1890). elections drew attention when a Democratic/Republican 20. See Miscellaneous City News: Mrs. Jackson-Hunt’s Nephew, N.Y. Times, May 7, 1879, at 2. supreme court nominee, Thomas A. Aurelio, was over- 21. See Accused by Her Son, N.Y. Times, June 2, 1892, at 10. heard on a tapped telephone pledging “undying loyalty” 22. William Allen White, Croker, McClure’s Mag., Feb. 1901, at 325. to mobster Frank Costello.64 Both parties withdrew their

22 | March/April 2009 | NYSBA Journal 23. Henry Lauren Clinton, Celebrated Trials 538 (1897). For a highly flattering 62. The Direct Primary, N.Y. Times, Mar. 30, 1921, at 11. profile of Croker, see Henry W. Walker, Public Spirited Citizens: Richard Croker, in 63. Judicial Spoils, N.Y. Times, Oct. 24, 1931, at 16. The Brown Book: A Biographical Record of Public Officials of the City of New 64. The Aurelio Nomination, N.Y. Times, Aug. 30, 1943, at 14. York for 1898–9, at 307–11 (1899). 65. Aurelio was renominated and reelected in 1957 without incident and 24. Matthew P. Breen, Thirty Years of New York Politics Up-to-Date 766 retired in 1962. See Justice Thomas A. Aurelio, 81, of State Supreme Court, Dies, N.Y. (1899). Times, Jan. 6, 1973, at 32. 25. Notes of the Campaign, N.Y. Times, Nov. 6, 1876, at 4. 66. See generally Commission to Promote Public Confidence in Judicial 26. The Democratic Canvass, N.Y. Times, Oct. 26, 1879, at 1. For a comprehen- Elections, Final Report to the Chief Judge of the State of New York (2006). sive reformist attack on Croker, see City Club, Some Things Richard Croker Has 67. See generally Becoming a Judge: Report on the Failings of Judicial Elections Said and Done (1901). in New York State, in Government Ethics Reform for the 1990s: The Collected 27. Stoddard, supra note 1, at 195 (quoting Carl Schurz, Our New Monarchy, Reports of the New York State Commission on Government Integrity 271–301 Harper’s Weekly, Jan. 29, 1898). (Bruce A. Green ed., 1991). 28. Id. at 56. 68. See generally Report of Action Unit No. 4 of the New York State Bar Association: a Model Plan for Implementing the New York State Bar 29. Result of the City Vote, N.Y. Times, Nov. 6, 1879, at 2. Association’s principles for selecting judges (1993). 30. Stoddard, supra note 1, at 167. 69. See generally Judicial Selection Task Force of the Association of the Bar of 31. John A. Corry, A Rough Ride to Albany: Teddy Runs for Governor 181 the City of New York, Recommendations on the Selection of Judges and the (2000). Improvement of the Judicial Selection System in New York State (2006). 32. 1 Mazet Committee Report, supra note 11, at 369. 33. Stoddard, supra note 1, at 79–80. NEW YORK STATE BAR ASSOCIATION 34. N.Y. Herald, Oct. 30, 1898, sec. 7, at 5. 35. 1 Mazet Committee Report, supra note 11, at 344. 36. Daly later claimed that even if he had known the removal of the sales to 111 Broadway was a matter of personal interest to Croker, it would have made no difference. Id. at 371. 37. Pressing Croker to Accept Daly, N.Y. Herald, Oct. 9, 1898, at 4. 38. Bar Association Acts, N.Y. Times, Oct. 16, 1898, at 1. 39. Corry, supra note 31, at 193. 40. Crokerism an Issue in Roosevelt’s Talk, Brooklyn Daily Eagle, Oct. 23, 1898, at 4. 41. The Republican Campaign, Northern Trib. (Gouverneur, NY), Oct. 26, 1898, at 4. 42. The Leventritt Charges, N.Y. Times, Oct. 17, 1898, at 1. 43. Id. 44. Attacks Root and Daly, Brooklyn Daily Eagle, Oct. 25, 1898, at 13. Lawyer Referral and 45. Croker Denounces Daly, N.Y. Times, Oct. 25, 1898, at 1. 46. Croker Says That Daly Favored a Friend, N.Y. Herald, Oct. 26, 1898, at 6. A study compiled for the Mazet Committee indicated that in 1898 Daly gave 23 of Information Service 217 references to Henry. He also gave 21 to his other old law partner, Stephen H. Olin. 4 Mazet Committee Report, supra note 11, at 3,694. Interested in expanding your 47. Tammany’s Final Rally, N.Y. Times, Nov. 4, 1898, at 1. 48. The City’s Vote Revised, N.Y. Times, Nov. 10, 1898, at 1. client base? 49. Corry, supra note 31, at 275. Join the Lawyer Referral & Information Service 50. Storm Ahead for Croker, N.Y. Times, Nov. 11, 1898, at 1. 51. Croker’s Work, N.Y. Times, Nov. 9, 1898, at 6. Why Join? 52. Id. > Expand your client base 53. See Croker v. Croker, 83 Fla. 472, 92 So. 221 (Fla. 1922). > Benefit from our marketing strategies 54. See Croker v. Croker, 252 N.Y. 345, 169 N.E. 408 (N.Y. 1929). > Increase your bottom line 55. See White v. Croker, 273 U.S. 715 (1926). Overview of the Program The New York State Bar Association Lawyer Referral and Information 56. Untitled editorial, N.Y. Times, Aug. 8, 1916, at 8. Service (LRIS) has been in existence since 1981. Our service provides referrals 57. David Leventritt, Ex-Justice Dies, N.Y. Times, Jan. 9, 1926, at 17. to attorneys like you in 40 counties (check our Web site for a list of the eli- gible counties). Lawyers who are members of LRIS pay an annual fee of $75 58. Bench and Bar Mourn Leventritt, N.Y. Times, Jan. 11, 1926, at 27. ($125 for non-NYSBA members). Proof of malpractice insurance in the 59. Less than a month after the bill passed, a major scandal developed over minimum amount of $100,000 is required of all participants. If you are the sale of judicial nominations. Queens County Democratic leader Joseph retained by a referred client, you are required to pay LRIS a referral fee of “Curly Joe” Cassidy and candidate William Willett were later convicted and 10% for any case fee of $500 or more. For additional information, visit sent to Sing Sing. See Willett in Sing Sing with “Boss” Cassidy, N.Y. Times, Jan. www.nysba.org/joinlr. 14, 1915, at 6. Sign me up 60. The State Convention, N.Y. Times, May 1, 1917, at 12. In 1919, the primary Download the LRIS application at www.nysba.org/joinlr or call system’s ineffectiveness was demonstrated when Justice Joseph Newburger, 1.800.342.3661 or e-mail [email protected] to have an application sent to you. another 28-year veteran of the bench, was denied renomination by Tammany Hall. Here, Newburger opted to skip the Democratic primary, ran as an independent, and benefiting from a low voter turnout in an off-year election, GGiveive uuss a call!call! defeated the organization candidate. 8800.342.366100.342.3661 61. Miller Declares Primary a Fraud, N.Y. Times, Oct. 23, 1920, at 4.

NYSBA Journal | March/April 2009 | 23 BURDEN OF PROOF BY DAVID PAUL HOROWITZ

“Brill, Baby, Brill”

alf dozing during the Biden/ in Brill clarified that the statutory dead- defect at the accident site, and the Palin vice presidential debate, line for moving for summary judgment Appellate Division affirmed.4 HI sat up with a start when I was to be strictly construed, and the The Court of Appeals noted that it heard Governor Palin chide Senator provision permitting late motions by was undisputed that the motion was Biden: “The chant is Brill, baby, Brill.” leave on “good cause shown” under late and no excuse was offered for Brill?1 In Alaska? I turned to my wife, Civil Practice Law and Rules 3212(a) the delay. “Thus, there was no ‘leave Susan. “See, I’m not the only one talk- ‘’require[d] a showing of good cause of court on good cause shown,’ as ing about Brill’s impact on New York’s for the delay in making the motion required by CPLR 3212(a). The viola- summary judgment practice.” Susan – a satisfactory explanation for the tion is clear.”5 replied, wearily: “You idiot! They are untimeliness – rather than simply per- For the Court, this was the easy talking about the nation’s energy pol- mitting meritorious, non-prejudicial part. “What to do is the more vex- icy, and what Governor Palin said filings, however tardy.’’3 ing issue.”6 Referencing its decision was: ‘Drill, baby, drill.’ As in oil!” The timing issue in Brill was, to five years earlier in Kihl v. Pfeffer,7 the Chastened, I turned back to watch the some, a garden-variety scenario: Court characterized the moving par- rest of the debate and, mercifully, was On June 18, 2002, close to a year ties’ conduct in Brill as “present[ing soon sound asleep. after the trial calendar papers were the same] scenario” as Kihl. But Brill, Sadly, this is only one of many times filed, the City moved for summary “another example of sloppy practice when I have been embarrassed by judgment. The City gave no expla- threatening the integrity of our judicial mistakenly thinking others share my nation for filing the motion after system, rests instead on the violation obsession with Brill. the 120-day limit specified in CPLR of legislative mandate.”8 Once, while ordering dinner at Le 3212(a), simply arguing that it did So what was to happen to the Brill Bernadin, the waiter, in the midst of not have prior written notice of the litigation? describing the evening’s specials, asked alleged defect at the accident site What is to happen in this case is if anyone at the table was acquainted and that plaintiffs could not show that summary judgment will be with Brill. Much to the table’s mor- an exception to the prior written reversed and the case returned to tification, this sparked a five-minute notice requirement. Supreme Court the trial calendar, where a motion soliloquy by me about Brill’s impact, determined that in the interests of to dismiss after plaintiff rests or a not only on summary judgment, but judicial economy, and since Mrs. request for a directed verdict may upon disclosure practice and expert Brill did not manifest any prejudice dispose of the case during trial. disclosure. In the cab to Grand Central from the delay, it would decide the Hopefully, as a result of the courts’ after dinner, Susan explained, wearily, summary judgment motion on the refusal to countenance the statu- that brill was a type of fish,2 and one of merits. The court granted the City’s tory violation, there will be fewer, the specials on the menu that evening. motion, finding plaintiffs did not if any, such situations in the future, All right, I admit, I am obsessed prove that the City had notice of a both because it is now clear that with Brill. To get over this, and as part of the healing process, on this DAVID PAUL HOROWITZ ([email protected] or [email protected]) practices anniversary of the decision, let me as a plaintiff’s personal injury lawyer in New York and is the author of New York Civil Disclosure recount Brill’s impact on my practice, (LexisNexis), the 2008 Supplement to Fisch on New York Evidence (Lond Publications), and the and yours. 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 Brill v. The City of New York Schools. A member of the Office of Court Administration’s CPLR Advisory Committee, he is a frequent Decided a mere five years ago, the lecturer and writer on these subjects. Court of Appeals’s landmark decision

24 | March/April 2009 | NYSBA Journal “good cause” means good cause Care must be taken to monitor the for the delay, and because movants deadlines for changes. will develop a habit of compliance with the statutory deadlines for summary judgment motions rather line of 120 days following the filing of the deadline that applies to a particular 9 than delay until trial looms. the note of issue for moving for sum- case. Second, parties must accurately Post-Brill, the timing of motions for mary judgment.13 calculate the deadline. summary judgment, specifically the Notwithstanding the deadlines Determining the applicable dead- issues of whether a motion or cross- set forth in CPLR 3212(a), the statute line requires a review of all orders motion is untimely and, if untimely, further provides that a “late” motion issued by the court in a particular whether “good cause” exists to permit for summary judgment may be made matter, the individual justice’s “part a late motion, is one of the most sig- “with leave of court on good cause rules,” local judicial district rules, and nificant issues facing both the court shown.” While the statute makes clear CPLR 3212(a). Not only is it necessary system and litigants today. that the request for leave is directed to consult the aforementioned sources to the discretion of the trial court, the for summary judgment deadlines, care CPLR 3212 court’s discretion is not unfettered, as must be taken to monitor the deadlines When enacted, CPLR 3212 provided Brill so aptly demonstrates. for changes, a point nicely illustrated that a motion for summary judgment in Crawford v. Liz Claiborne, Inc., where could be made at any time after join- “Am I Late?” the local rule differed from the I.A.S. der of issue and placed no cut-off date Whether or not a motion for summary Justice’s rules, and the judicial district on a party’s ability to so move. In judgment is timely requires a two-step rule changed from 60 to 120 days dur- response to the practice of parties that analysis. First, parties must determine ing the pendency of the case.14 If there make “eve of trial” motions for summary judgment,10 often necessitating the adjournment of scheduled trials, CPLR 3212(a) was amended in 1996. It established outer time limits on a party’s right to move for summary judgment tied to, and triggered by, the filing of the note of issue.11 The note of issue trigger for starting the clock on a party’s right to move for summary judgment clearly contemplated that disclosure was complete at the time the note of issue was filed.12 The completion of disclosure prior to the clock starting to run was critical because it permitted parties to make an informed decision whether to move for summary judgment and ensured that parties had the benefit of all available disclosure to both draft, and oppose, summary judgment motions and cross-motions. CPLR 3212(a), as amended, permits the court to set a time limit for parties to move for summary judgment, which may not be less than 30 days following the filing of the note of issue. This minimum time limit is designed to afford litigants at least 30 days to draft and serve summary judgment motions and cross-motions following the completion of disclosure. In the event the court does not set a deadline, the statute mandates a “default” dead-

NYSBA Journal | March/April 2009 | 25 is no shorter period mandated for a The juxtaposition of post-note dis- the reduction in work associated with particular case, the default period of closure and summary judgment timing those motions where leave is denied. 120 days controls. is, of course, magnified in those coun- Once the deadline for moving for ties where post-note disclosure is the Conclusion summary judgment in a particular case norm, rather than the exception. I don’t think this therapy has helped. is ascertained, calculating the deadline In the days since I first drafted this and determining whether a motion is A Suggestion article, everywhere I go, it seems to me, late would be a straightforward task The wisdom of the Brill decision has people are still talking about Brill. ■ but for a split in the appellate divisions been hotly debated for the last five over the accrual date for starting the years, and the debate shows no sign of 1. Brill v. City of New York, 2 N.Y.3d 648, 781 N.Y.S.2d 261 (2004). clock to run on the deadline. abating. However, Brill sets the stage 2. “brill |bril|. noun. a European flatfish that for the actors making and opposing resembles a turbot. Scophthalmus rhombus, family summary judgment motions, and its Scophthalmidae (or Bothidae). ORIGIN late 15th mandates must be followed. cent.: of unknown origin.” Apple Dictionary & The requested Thesaurus. When a party seeks leave to have 3. Brill, 2 N.Y.3d at 652. discovery must a late summary judgment motion 4. Id. at 650. heard, a two-fold burden is imposed 5. Id. at 652. be relevant to upon the party against whom sum- 6. Id. at 653. the issues to be mary judgment is sought. First, the 7. 94 N.Y.2d 118, 123, 700 N.Y.S.2d 87 (1999). party must oppose the application for 8. Brill, 2 N.Y.3d at 653. resolved on the leave to serve the motion late. Second, 9. Id. not knowing whether leave to serve 10. See, e.g., Latimer v. City of New York, 219 A.D.2d 622, 631 N.Y.S.2d 395 (2d Dep’t 1995) (summary motion. the motion late will be granted, the judgment was warranted as a matter of law and motion must be opposed on the mer- should have been granted notwithstanding that the its. Imposing the burden of opposing motion was made at the eve of trial). CPLR 3212(a) states that the time on the merits a summary judgment 11. 1996 N.Y. Laws ch. 492, effective January 1, 1997, amended CPLR 3212(a), by adding the clause to move for summary judgment is motion that is ultimately denied leave beginning ‘’provided however.’’ This amendment calculated from the “filing of the note is a tremendous waste of client and provides that a motion for summary judgment of issue.”15 The Third Department has attorney resources. It also provides the may not be made later than 120 days after the filing of the note of issue except with leave of court. It held that the time to move accrues party seeking leave to make the late further provides that the court may set a date, no when the note of issue is filed, not motion with the tactical benefit of hav- earlier than 30 days after the filing of the note of served, and rejected the defendant’s ing the opposing party unnecessarily, issue, after which a motion for summary judgment may not be filed. argument that the five-day period for and unfairly, “lay bare” its proof. 12. See, e.g., Gonzalez v. 98 Mag Leasing Corp., 95 mailing contained in CPLR 2103(b)(2) Wouldn’t it be more equitable to N.Y.2d 124, 711 N.Y.S.2d 131 (2000). extended its time to move.16 The First have the party seeking leave to make 13. Brill, 2 N.Y.3d at 652. Department has reached a different the late motion move, in the first 14. 11 N.Y.3d 810, 869 N.Y.S.2d 378 (2008). conclusion, holding that the recipient instance, only for leave to make the 15. CPLR 3212(a). of a motion for summary judgment motion? This first step, which should 16. Coty v. County of Clinton, 42 A.D.3d 612, 388 cannot be charged with knowledge include the movant annexing to the N.Y.S.2d 825 (3d Dep’t 2007). 17. Szabo v. XYZ Two Way Radio Taxi Ass’n, 267 of the unilateral filing by an opposing application for leave the full motion A.D.2d 134, 135, 700 N.Y.S.2d 179 (1st Dep’t 1999). party, so that the accrual date when it intends to serve if leave is granted, 18. See, e.g., Wider v. Heller, 24 A.D.3d 433, 805 the time to move begins to run is the would enable the party opposing the N.Y.S.2d 130 (2d Dep’t 2005). completion of service and, where done motion to oppose only the application 19. Breiding v. Giladi, 15 A.D.3d 435, 789 N.Y.S.2d by mail, by adding the additional five for leave, without the necessity, and 449 (2d Dep’t 2005). days provided by CPLR 2103(b)(2).17 burden, of interposing its opposition Pro Bono Opportunities Guide on the merits. If the court chose to grant Now Online Disclosure as Good Cause leave, the court, in its order, could set www.nysba.org/volunteer Discovery outstanding after the filing a briefing schedule for opposing and Looking to volunteer? This easy-to-use guide will help you find the of a note of issue may constitute good reply papers. right opportunity. You can search by county, by cause for a late motion. Yet the request- While this procedure imposes the subject area, and by population served. ed discovery must be relevant to the burden upon the court of deciding two Questions about pro bono service? issues to be resolved on the motion.18 motions in cases where leave is granted, Visit the Pro Bono Dept. Web site for more information. Perfunctory claims of law office failure this imposition should be outweighed www.nysba.org/probono will not satisfy the requirement for fil- by the streamlining of motion practice (518) 487-5641 ing a late motion.19 in cases where leave is granted, and [email protected]

26 | March/April 2009 | NYSBA Journal Accidents Abroad and Inconvenient Forums By Thomas A. Dickerson

ravel law involves the traveler’s rights and remedies against airlines, cruise lines, THOMAS A. DICKERSON is trains, buses, rental car companies, hotels, resorts, casinos, theme parks, tour opera- an Associate Justice of the tors, Internet travel sellers, travel agents and others arising from wrongful death, Appellate Division, Second T Department of the New York physical injury or a failure to deliver travel services promised and paid for. Before I became a judge I prosecuted many lawsuits involving a variety of travel prob- State Supreme Court. Justice Dickerson is the author of lems including, to name just a few: hotel “bait and switch” schemes, improper handling of Travel Law, Law Journal Press, airline baggage claims, misrepresented services, misrepresented History Book Club tours, and Consumer Law 2008: The failure to enforce federal tour operator regulations, flight delays and cancellations, death Judge’s Guide to Federal and or physical injuries arising from a train crash, a bus crash, the contraction of typhoid fever, New York State Consumer a delayed flight with cabin temperature reaching 120 degrees, an angry camel in Egypt, Protection Statutes, and numer- a wild horse in Mexico, unsafe snorkeling during a bird-watching tour of Costa Rica, the ous other books and articles serving of food during Passover that was not Glatt Kosher, failure to deliver tickets to the on consumer law, class actions, Super Bowl, and airline ticket price fixing. travel law and tax certiorari. This article presents a summary digest and a discussion of some of the more noteworthy recent developments and cases decided in this field of law.

Travel Accidents Abroad One of the most interesting areas of travel law involves accidents sustained by U.S. citizens that occur outside of the United States, whether in a foreign country or on a cruise ship.1 Such cases raise a variety of complex liability and procedural issues including forum non conveniens and the enforcement of forum selection clauses in travel contracts.

NYSBA Journal | March/April 2009 | 27 Types of Accidents Abroad Slips, Trips and Falls Traveling abroad, whether by international air carrier, Jamaica: Hofer v. The Gap, Inc.19 (guest falls into turtle aboard a cruise ship or while participating in a tour, can pond at hotel after flip-flop breaks). be a wonderful experience – until you have an accident. Decisions involving travel accident claims have involved Riding Accidents the following types of claims in the locations indicated Egypt: MacLachlin v. Marriott Corp.20 (tourist in Egypt below. thrown from angry camel breaks eight ribs and fractures pelvis); Bahamas: Tucker v. Whitaker Travel, Ltd.21 (tourist Wrongful Deaths thrown from horse); Hawaii: Courbat v. DaHano Ranch, Egypt: Guidi v. Inter-Continental Hotels Corp.2 (guests mur- Inc.22 (horse riding accident); Namibia: Hall v. Voyagers dered in hotel restaurant by terrorists); Nunavut, Canada: International Tours, Inc.23 (tourist trampled by wild ele- Brunner v. Hampson3 (hunters burned in fire); Uganda: phant). Haubner v. Abercrombie & Kent International, Inc.4 (tourists abducted from safari tents and murdered by rebels); Riding in Tour Buses, Limos and Golf Carts Botswana: Shea v. Global Travel Marketing, Inc.5 (infant Vietnam: Pearl Cruises v. Cohon24 (cruise passengers mauled and killed by hyenas). injured in automobile accident during shore excursion); Scotland: Ramage v. Forbes International, Inc.25 (tour bus accident); Peru: Vermeulen v. Worldwide Holidays, Inc.26 The worst strategy is being (tour van accident in Peru); Dominican Republic: Lang v. 27 forced to sue in the foreign Corporacion De Hotels, SA (golf cart struck by truck). Driving a Rental Car jurisdiction where the Mexico: Chung v. Chrysler Corp.28 (students killed in accident occurred. rental car crash); Italy: Travalja v. Maieliano Tours29 (rental car accident); Romania: Kermisch v. Avis Rent-A-Car30 (tourists arrested in Romania for mistreating their rental Assaults vehicle). Puerto Rico: Woods-Leber v. Hyatt Hotels of Puerto Rico6 (mongoose attacks guest sunbathing at hotel pool); Riding in Airplanes Jamaica: Schreiber v. Camm7 (guests at Jamaican vacation China: Barkanic v. General Administrator of Civil Aviation31 estate shot by security guard); St. Thomas: Manahan v. (tourist killed in airplane crash during tour); Kenya: NWA, Inc.8 (tourist mugged on walk to restaurant from Abercrombie & Kent v. Carlson Marketing Group32 (tour- hotel). ists killed when plane crashes into a mountain); Rizzutti v. Basin Travel Service33 (tourists killed in crash of air- Rapes, Sexual Assaults and Molestations craft). Galapagos Islands: O’Keefe v. Inca Floats, Inc.9 (sexual assault during cruise to Galapagos Islands); Bahamas: Suing at Home Is Better Doe v. Sun International Hotels, Ltd.10 (guest raped at The best strategy, of course, in litigating on behalf of resort); St. Thomas: Flanagan v. Wyndham International, injured travelers is to sue available defendants in the Inc.11 (children molested in hotel day care facility). United States. The worst strategy is being forced to sue in the foreign jurisdiction where the accident occurred. Robberies From the tourist’s standpoint safety standards may Kenya: Dow v. Abercrombie & Kent12 (tourists on safari be lower. See, for example Wilson v. Best Travel34 (tourist assaulted and robbed by bandits while camping in the falls through weak plate glass window in Athens hotel; Oloolo Escarpment in the Masai Mara reserve). plate glass thickness standards lower in Greece than in England, where tourist resided). Or the drinking age Water Sports Accidents might be different: Knoell v. Cerkvenik-Anderson Travel, Mexico: Gardemal v. Westin Hotel Co.13 (tourist drowns Inc.35 (18-year-old from Arizona visiting Mexico con- snorkeling off of Lovers’ Beach); Yurchak v. Atkinson & sumes large quantities of alcoholic beverages for three Mullen Travel, Inc.14 (jet ski accident); Walker v. Wedge days and jumps to death from third-story hotel balcony; Hotel15 (para-sailing accident); Hong Kong: Nowak v. Tak Arizona Dram Shop law does not apply; drinking age How Inc. Ltd.16 (guest drowns in hotel pool); Gabon: Irwin in Mexico is lower than in Arizona). And the quality v. World Wildlife Fund, Inc.17 (boating accident in Gamba of medical care may be much lower: Gianocostas v. RIU lagoon); Turks & Caicos: Welch-Rubin v. Sandals Corp.18 Hotels, SA36 (diabetic tourist misdiagnosed at hotel and (shoulder injury boarding boat). local hospital).

28 | March/April 2009 | NYSBA Journal Not a Lot of Sympathy or contingency fees in Bahamas); France: In re Air Crash From counsel’s standpoint the law may be less sym- Off Long Island, New York44 (France does not allow con- pathetic to the injured traveler in other countries. See, tingency fee arrangements); Cayman Islands: Wilson v. for example, the following cases: Egypt: MacLachlin v. Humphreys Cayman Ltd.45 (rape at hotel; no contingency Marriott Corp.37 (tourist thrown from angry camel in fees or jury trials in Cayman Islands); Jamaica: Reid- Egypt; “an Egyptian forum which is based partially on Walen v. Hansen46 (motorboat accident; no contingency Koranic law would be unduly harsh to plaintiff”); France: fees or jury trials in Jamaica); England: Neville v. Anglo In re Air Crash Off Long Island, New York38 (air crash; American Management47(tour bus accident; no contingen- France does not allow punitive damages); Dominican cy fees or jury trails in England); Israel: Gyenes v. Zionist Republic: Gianocostas v. Interface Group39 (diabetic tourist Organization of America48 (student drowned in Jordan misdiagnosed in Dominican Republic); Turkey: Mercier v. River; no right to jury trial in Israel). Sheraton International, Inc.40 (contract dispute; Turkey may not recognize claims for breach of contract or tortious Is the Forum Selected Convenient? interference with contract); China: Barkanic v. General In response to a lawsuit brought in the United States, the Administration of Civil Aviation41 (air crash; maximum defendants may seek to dismiss the lawsuit because the recoverable damages limited to $20,000). U.S. forum selected is not convenient (forum non conveniens) or a clause in the cruise passenger ticket, hotel reg- No Juries; No Contingency Fees istration form or tour participant contract may state that In addition, foreign procedural law may be very different. all lawsuits must be brought in a specific forum (forum Among other things, the law may bar contingency fee selection clause). arrangements with attorneys and jury trials. Bermuda: Bruemmer v. Marriott Corp.42 (hotel guest playing golf Application of Foreign Law falls off cliff adjacent to tee area for 18th hole and sub- In addition, the defendants may seek an early determina- sequently dies from his injuries; no contingent fees in tion by the court that the law of a foreign country applies Bermuda); Bahamas: Doe v. Sun International Hotels, Ltd.43 to one or more issues in the case (choice of law). The appli- (18-year-old female guest raped at hotel; no jury trials cable law, foreign or domestic, bears on the convenience

NYSBA Journal | March/April 2009 | 29 of the selected forum, the theory being that foreign courts to respond to lawsuits in the United States. The Nowak are better able to interpret their own law than the courts court also declared that Massachusetts, where the law- of a U.S. forum. Mercier v. Sheraton International, Inc.49 suit was brought, had a strong interest in protecting its (contract dispute; difficulty in interpreting Turkish law citizens from solicitations for unsafe services. one reason for dismissal); Rudisill v. Sheraton Copenhagen Corp.50 (fall in Danish hotel bathtub; Danish courts better Availability of Alternative Forum able to apply Danish law); Carnival Cruise Lines, Inc. v. Oy Generally, the court will not dismiss a lawsuit unless Wartsila AB51 (contract dispute; Finnish courts better able there is an alternative forum available to hear the plain- to interpret Finnish law). tiff’s claim. As stated by one court, “[t]he court must be alert to the realities of the plaintiff’s position, financial Conditions for Dismissal or otherwise, and his or her abilities as a practical matter Should the court grant a forum non conveniens motion it to bring suit in the alternate forum.”58 The courts differ may condition dismissal upon the defendant agreeing widely on just how different the alternative forum can be to the transfer of the case to a distant forum for trial. to still be “available.” Factors to be considered include For example, see Chhawchharia v. The Boeing Co.52 (dis- whether the foreign forum recognizes U.S. legal theories, missal subject to defendant submitting to jurisdiction of allows contingency fee arrangements with attorneys, pro- English or Scottish courts, waiving any statute of limita- vides for jury trials and limits recoverable damages.

Generally, the court will not dismiss a lawsuit unless there is an alternative forum in which to hear the plaintiff’s claim.

tion defense, conceding liability for all compensatory Location of Witnesses and Evidence damages, providing access to all evidence, and paying Proving or defending an accident case may require the the awarded damages); Diaz v. Mexicana de Avion, S.A.53 production of witnesses and documentary and physical (dismissal subject to defendant accepting service in and evidence that is located in the forum where the acci- jurisdiction of Mexican courts, waiving statute of limita- dent occurred. In arguing for dismissal the defendant tions, producing all evidence and witnesses, and agreeing will show the court a list of essential witnesses that are to satisfy any judgments). beyond the court’s jurisdiction and, therefore, unavail- able for trial. See, for example, Mastrondrea v. Occidental Plaintiff’s Choice Is Important Hotels Management59 (“[T]he Hotel points to Mexico as the Although it is not dispositive (see Piper Aircraft Co. v. locus of the accident. . . . [I]t also addresses the fact that Reyno54 (air crash)) the forum selected by the plaintiff, Mexican witnesses are not within the subpoena power particularly if he or she resides in that forum, will be of the New Jersey courts and it notes the language dif- given serious consideration before dismissing a lawsuit ference between Mexico and the United States”); Loya on the grounds of forum non conveniens. A good example v. Starwood Hotels & Resorts60 (“Mr. Loya’s death and is found in Guidi v. Inter-Continental Hotels Corp.55 (mur- the activities leading up to his accident, occurred in der in Egyptian hotel; “the choice of an American court Mexico. A trial of that action will require evidence from over a foreign court should be given the heightened def- people who were present before, during and after Mr. erence”). Loya’s accident. . . . Those sources of proof are predomi- nantly located in Mexico”); Perez-Lang v. Corporacion De Advertising in the Forum Hoteles, SA61 (“The Defendants have established that If a defendant advertises and solicits business in the the courts in the Dominican Republic have subpoena forum, it should expect to be available for lawsuits power over individuals and documentary evidence . brought by injured residents. In Reid-Walen v. Hansen,56 a . . many of these witnesses are not within the employ case involving a motorboat accident in the Bahamas, the of the Defendants, meaning they are outside the com- court found that because of a Bahamian hotel’s solicita- pulsory process of this Court”); Miyoung Son v. Kerzner tion of business in the United States the owners “should International Resorts, Inc.62 (“most of the relevant wit- not be (totally) surprised . . . that they may be sued in the nesses are not employees of the Kerzner Defendants . . . courts of the U.S.” And, in Nowak v. Tak How Inv. Ltd.57 a but this Court cannot effectively subpoena these foreign case involving a drowning in a Hong Kong hotel pool, the nationals residing in the Bahamas and compel them to court held that a cost of doing business is being available appear before this Court”).

30 | March/April 2009 | NYSBA Journal View of the Premises sider the application of the Hague Evidence Convention: The defendant may also assert that the jury must have a Ramirez De Arellano v. Starwood Hotels & Resorts Worldwide, view of the accident scene. Perez-Lang v. Corporacion De Inc.69 (“Spain is a signatory to the Hague Convention on Hoteles, SA63 (“[T]his Court notes that the instant action the Taking of Evidence Abroad in Civil and Commercial is one in which such a visit to the accident scene might Matters . . . and the protocols under that treaty can be be beneficial due to the nature of the complaint, e.g., the used to obtain evidence”). location and design of the roads at the Resort. A series of photographs of the Resort might be a sufficient substitute Forum Selection Clauses but an in-person viewing might be deemed necessary”); It is quite common for travel suppliers to insert a clause Campbell v. Starwood Hotels & Resorts Worldwide, Inc.64 into their consumer contracts requiring dissatisfied cus- (guest swimming struck by motorboat operated by Ocean tomers to file lawsuits in a specific forum, typically, one Motion; “Defendants assert the need for the trier of fact to that is convenient for the travel supplier but not for the view the premises. . . . However . . . the accident occurred consumer. Such clauses can have a dramatic effect upon in the ocean off the beach where the Westin resort is locat- the consumer’s enthusiasm in prosecuting his or her claim. ed, so any viewing of the actual precise accident scene Forum selection clauses are used by cruise lines. See, for is likely to be difficult or impossible. Photographs are example, Carnival Cruise Lines, Inc. v. Shutte70 (Florida available that show the location of the buoys at the time forum selection clause enforced); Heinz v. Grand Circle of the accident”); Miyoung Son v. Kerzner International Travel71 (passengers sustained injuries from malfunction- Resorts, Inc.65 (“[A] view of the site of Mrs. Son’s accident ing doors aboard Blue Danube cruise ship on the Rhine is meaningless because the ‘shifting sands are no longer in Germany; travel contract contained clause “all claims as they were at the time of the accident’”). . . . must be litigated in Basel, Switzerland”). Forum selection clauses are also used by hotels. For example, Ward v. Alternative Forms of Evidence and Costs Kerzner International Hotels Limited72 (guest injured riding The court must examine the actual necessity of each bicycle; “the guest registration document is not ambigu- listed witness and decide whether there are alternative ous. It is apparent from the face of the document that each forms of evidence that will make the witness’s presence of the two forum selection clauses requires a signature. unnecessary such as depositions, video presentations While the first forum selection clause pertains broadly (Mastrondrea v. Occidental Hotels Management66 (“should it to any claim against the defendants, the second clause be relevant to the Hotel in defending the action, it is free pertains only to water sport activities. The defendants do to make an accurate videotape of the steps upon which not dispute that Mr. Ward’s accident had nothing to do plaintiff fell and to show that videotape to the jury”)) and with water sports. Since Mr. Ward did not sign or clearly sworn statements. In addition, the court must consider accept the terms of the forum selection clause pertaining the costs involved. O’Donnell v. Club Mediterranee, S.A.67 to the type of accident involved in this case (forum non (guest at Club Med in Turks & Caicos slipped trying to conveniens motion denied”). And they are sued by tour board boat and suffered ankle fracture; “As a threshold operators, such as in Global Travel Marketing, Inc. v. Shea73 matter defendants are large companies with vast resources, rendering it unlikely that the expense of [witness] travel would be particularly burden- some to them . . . as defendants are in the business of recreational travel, it would seem that arranging his trans- portation here would be a very slight burden at most”). The court must also consider the language of the reports and records. Phillips v. Talty68 (car accident in St. Martin; “all of the pertinent reports and records generated out of the investigation and medical treatment are in French, the language in which French Courts located in St. Martin conduct their proceedings, and which the vast majority of witnesses in this case speak”). And the courts must con-

NYSBA Journal | March/April 2009 | 31 (estate of child tourist on safari killed by hyenas bound 40. 935 F.2d 419 (1st Cir. 1991). by contract clause requiring arbitration of disputes in Fort 41. 923 F.2d 957 (2d Cir. 1991). Lauderdale, Florida; “we hold that an arbitration agree- 42. No. 90 C 4190, 1991 WL 30141 (N.D. Ill. 1991). ment incorporated into a commercial travel contract is 43. 20 F. Supp. 2d 1328 (S.D. Fla. 1998). enforceable against the minor or minor’s estate in a tort 44. 65 F. Supp. 2d 207 (S.D.N.Y. 1999). 45. 916 F.2d 1239 (7th Cir. 1990). action arising from the contract”). 46. 933 F.2d 1390 (8th Cir. 1991). 47. 191 A.D.2d 240, 594 N.Y.S.2d 747 (1st Dep’t 1993). Conclusion 48. 169 A.D.2d 451, 564 N.Y.S.2d 155 (1991). In litigating a travel law case involving accidents in a for- 49. 935 F.2d 419 (1st Cir. 1991). eign jurisdiction, counsel should carefully consider how 50. 817 F. Supp. 443 (D. Del. 1993). the travel services were marketed and the presence of 51. 159 B.R. 984 (S.D. Fla. 1993). forum selection, arbitration and choice of law clauses in 52. 657 F. Supp. 1157 (S.D.N.Y. 1987). the travel contract in an effort to fashion a complaint that 53. No. SA-86-CA-1065, 1987 WL 275695 (W.D. Tex. 1987). can be brought in and remain in the courts of the United 54. 454 U.S. 235, 255 (1981). 55. 203 F.3d 180 (2d Cir. 2000). States. ■ 56. 933 F.2d 1390 (8th Cir. 1991). 57. 899 F. Supp. 25 (D. Mass. 1995). 1. See Thomas A. Dickerson, The Modern Cruise Passenger’s Rights and Remedies – Part 1, N.Y. St. B.J. (Mar./Apr. 2007), p. 10; The Modern Cruise Passenger’s 58. Radigan v. Innisbrook Resort & Golf Club, 142 N.J. Super. 419, 361 A.2d 610 Rights and Remedies – Part 2, N.Y. St. B.J. (June 2007), p. 18. (1976), modified, 150 N.J. Super. 427, 375 A.2d 1229 (1977). 2. 203 F. 3d 180 (2d Cir.), opinion amended, 224 F.3d 142 (2d Cir. 2000). 59. 918 A.2d 27 (N.J. Super. A.D. 2007). 3. 441 F.3d 457 (6th Cir. 2006). 60. No. C06-0815 MJP, 2007 WL 1991163 (W.D. Wash. 2007). 4. 351 Ill. App. 3d 112, 812 N.E. 2d 704 (2004). 61. 575 F. Supp. 2d 1345 (S.D. Fla. 2008). 5. 908 So. 2d 392 (Fla. Sup. 2005). 62. No. 07-61171-CIV, 2008 WL 4186979 (S.D. Fla. 2008). 6. No. 97-1269, 1997 WL 476360 (1st Cir. 1997). 63. 575 F. Supp. 2d 1345. 7. 848 F. Supp. 1170 (D.N.J. 1994). 64. No. 07-61744-CIV, 2008 WL 2844020 (S.D. Fla. 2008). 8. 821 F. Supp. 1105 (D.V.I. 1991), recon. denied, 821 F. Supp. 1110 (D.V.I. 1992), 65. No. 07-61174-CIV, 2008 WL 4186979 (S.D. Fla. 2008). aff’d, 995 F.2d 218 (3d Cir. 1993). 66. 918 A.2d 27 (N.J. Super. A.D. 2007). 9. No. C-97-1225 VRW, 1997 WL 703784 (N.D. Cal. 1997). 67. No. 05-CV-610 (ARR), 2008 WL 794975 (E.D.N.Y. 2008). 10. 20 F. Supp. 2d 1328 (S.D. Fla. 1998). 68. 555 F. Supp. 2d 265 (D.N.H. 2008). 11. 231 F.R.D. 98 (D.D.C. 2005). 69. 448 F. Supp. 2d 520 (S.D.N.Y. 2006). 12. No. 99 C 6923, 2000 WL 688949 (N.D. Ill. 2000). 70. 499 U.S. 585 (1991). 13. 186 F.3d 588 (5th Cir. 1999). 71. 329 F. Supp. 2d 896 (W.D. Ky. 2004). 14. No. 05-2584, 2006 WL 3076675 (3d Cir. 2006). 72. No. 08-23087-CIV-Jordan, 2005 WL 2456191 (S.D. Fla. 2005). 15. No. 01-3564 (CIV), 2003 WL 23218085 (S.D. Fla. 2003). 73. 908 So. 2d 392 (Fla. Sup. 2005). 16. Civ. A. No. 94-11691-WGY, 1995 WL 521874 (D. Mass. 1995). 17. 448 F. Supp. 2d 29 (D.D.C. 2006). 18. No. 3:03CV481 (MRK), 2004 WL 2472280 (D. Conn. 2004). JUST RELEASED! 19. 516 F. Supp. 2d 161 (D. Mass. 2007). 20. N.Y.L.J., Jan. 18, 1994, p. 29, col. 2 (N.Y. Sup. 1994). 21. 620 F. Supp. 578 (E.D. Pa. 1985), aff’d mem., 800 F.2d 1140 (3d Cir.), cert. New York Practice Monograph Series, denied, 477 U.S. 986 (1986). 22. 141 P.3d 427 (Haw. Sup. 2006). 2008–2009 23. No. 5:01-CV-1375, 2007 WL 2088878 (N.D.N.Y. 2007). Each book in the series covers the basics of a 24. 728 So. 2d 1226 (Fla. App. 1999). 25. 987 F. Supp. 810 (C.D. Cal. 1997). different area of practice – ideal as a starting 26. 922 So. 2d 271 (Fla. App. 2006). point for new practitioners, or those new to a 27. 522 F. Supp. 2d 349 (D.P.R. 2007). particular area of law. 28. 903 F. Supp. 160 (D.D.C. 1995). 29. 213 A.D.2d 155, 622 N.Y.S.2d 961 (1st Dep’t 1995). 30. 71 A.D.2d 790, 419 N.Y.S.2d 793 (4th Dep’t 1979). New York Practice Forms on CD-ROM, 31. 923 F.2d 957 (2d Cir. 1991). 32. Civ. A. No. 88-7889, 1989 WL 46222 (E.D. Pa. 1989). 2008–2009 33. 125 Wash. App. 602, 105 P. 3d 1012 (Wash. App. Div. 3 2005). 34. 1 All ER 353, 1993 WL 9630313 (QBD) (1993). Nearly 800 forms used in daily practice. 35. 181 Ariz. 394, 891 P.2d 861 (1994), vacated, 185 Ariz. 546, 917 P.2d 689 (Ariz. 1996). phone: 1-800-582-2452 36. 2008 WL 483766 (Mass. Sup. 2008). 37. N.Y.L.J., Jan. 18, 1994, p. 29, col. 2 (N.Y. Sup. 1994). fax: 1-518-487-5618 38. 65 F. Supp. 2d 207 (S.D.N.Y. 1999). web: www.nysba.org/pubs 39. 450 Mass. 715, 881 N.E.2d 134 (Mass. Sup. 2008).

32 | March/April 2009 | NYSBA Journal Putting the “Civil” Back in Civil Litigation By Jonathan J. Lerner

fter spending 35 years as a participant in the Zealous Advocacy adversary system, I have no doubt that it is the Of course, it is fundamental to our adversary system that Agreatest system in the world with which to search as advocates we are required to zealously advance the for the truth. Advocates are able to subject the opposing interests of only one side, our client’s. The ethical under- side’s evidence to rigorous discovery and vigorous cross- pinning of our adversary system is found in the Preamble examination, and, armed with these tools and the result- to the ABA Model Rules of Professional Conduct, which ing transparency, can mount their best arguments to try provides that “[a]s advocate, a lawyer zealously assert[] to convince a neutral judge or jury of the merits of their the client’s position under the rules of the adversary sys- client’s case. Nevertheless, our society holds lawyers in tem.”1 The Commentary to Model Rule 1.3 illuminates extremely low esteem. this: Unlike other professions, unflattering associations A lawyer should pursue a matter on behalf of a client with vile creatures such as bloodsucking leeches seem despite opposition, obstruction or personal inconve- nience to the lawyer, and take whatever lawful and reserved for lawyers – a comparison viewed by many as ethical measures are required to vindicate a client’s insulting to leeches. Anyone who seriously doubts that lawyers are reviled by the general populace need only JONATHAN J. LERNER ([email protected]), a partner at recall the audience reaction to the scene in Jurassic Park Skadden Arps, concentrates on corporate, securities, and commercial where the lawyer is eaten by a Tyrannosaurus Rex, gen- litigation. He received his J.D. from St. John’s University School of Law, erating thunderous applause for the T-Rex. One reason magna cum laude, and his undergraduate degree from the State for this disconnect may be that the adversary system has University of New York at Binghamton. become too adversarial and far too uncivil.

NYSBA Journal | March/April 2009 | 33 cause or endeavor. A lawyer must also act with com- or burying their adversary in unnecessarily lengthy and mitment and dedication to the interests of the client overly dense interrogatories and document requests. and with zeal in advocacy upon the client’s behalf.2 As hard as these vexatious tactics can be on the law- In short, our role as advocates is to try to properly achieve yers on the receiving end, there are much worse abuses the best result for our client, which is not necessarily a fair that subvert the discovery process and undermine the or just one. transparency so essential to ferreting out the truth. Our Not surprisingly, we place a premium on qualities like adversary system relies heavily on the honesty and good aggressiveness, tenacity, perseverance and determina- faith of lawyers to interpret document demands in a fair tion, which are all traits associated with success in the and sensible way – not in a crabbed, disingenuous and adversary system. If these traits are not balanced by good strained manner designed to keep admissions against judgment, or at least a sense of perspective, they can lead their client’s interests from ever seeing the light of day. to lawyers who believe litigation should resemble armed When winning becomes the only thing, the adversary combat, a phenomenon that has become all too com- system suffers. mon. Unfortunately, there are too many zealots in our profession, sometimes referred to as “hardball players” Ethics Temper Zealous Advocacy or “Rambo-litigators,” who, like Vince Lombardi, believe Aggression, belligerence and abusive tactics are by no winning is not only the most important thing, it is the means inherent in our adversarial system, and civility

The Model Rules include numerous requirements that inform the manner in which zealous advocacy must be carried out and that temper its mandate. only thing. These myopic lawyers seem to believe that and mutual respect are not mutually exclusive with our zealous advocacy is synonymous with rudeness, and that role as zealous advocates. Even a cursory review of the making everyone’s life miserable is part of earning their Model Rules reveals numerous requirements that inform retainer and is what clients demand from their lawyers. the manner in which zealous advocacy must be carried out and that temper its mandate. The Preamble to the The Problem Model Rules reminds us that lawyers wear multiple hats: Whether it is because clients expect obnoxious tactics to “A lawyer, as a member of the legal profession, is a rep- advance their interests, or because some lawyers believe resentative of clients, an officer of the legal system and a they help to achieve better results, or because the Bar, public citizen having special responsibility for the quality especially in large cities, has grown so competitive and of justice.”5 The Comment to Rule 1.3 explicitly provides impersonal, our civility and professionalism seem to be that “[a] lawyer is not bound . . . to press for every advan- continually declining and at a rapid pace. As New York’s tage that might be realized for a client. . . . The lawyer’s Chief Judge Judith Kaye stated, “[i]t is also undeniable duty to act with reasonable diligence does not require with our exploding numbers and increased bottom line the use of offensive tactics or preclude the treating of all pressures, the practice of law has grown tougher and persons involved in the legal process with courtesy and meaner, eroding a core tradition of courtesy and civility.”3 respect.”6 Evidence of this can be seen daily in courtrooms through- On its face, Model Rule 3.4 mandates that a lawyer be out the country, where lawyers are heard hurling the fair to opposing counsel; it specifically precludes a lawyer nastiest of accusations at their colleagues and impugn- from, among other things, obstructing access to evidence ing their motives and integrity – even in telephone calls or embargoing witnesses. Similarly, the Comment to between lawyers. Nowhere is this more obvious than in Rule 3.2 provides that failure to expedite litigation is the discovery process, which is conducted largely away not reasonable “if done for the purpose of frustrating an from direct judicial supervision and tends to encourage opposing party’s attempt to obtain rightful redress or the most extreme behavior by some members of the Bar – repose.” The Model Rules do not accept the justification even when they are being videotaped.4 that “similar conduct is often tolerated by the bench and The arsenal of “hardball tactics” ranges from serving bar.”7 Rule 3.3 contains a host of additional requirements papers at the proverbial 11th hour to stubbornly refusing designed to assure fairness of proceedings under the to stipulate to any extension of time or adjournment, no heading “Fairness to the Tribunal.” Rule 4.1 mandates matter how great their adversary’s need, how reasonable lawyers to be truthful when dealing with others on the the request, and how irrelevant to their client’s interests; client’s behalf, with very limited exceptions. Under these

34 | March/April 2009 | NYSBA Journal rules, mutual respect, civility and courtesy not only can Significantly, the matter reached the Delaware Supreme co-exist with zealous advocacy – they are required. Court on appeal by the Office of Disciplinary Counsel after the Delaware Board on Professional Responsibility Delaware Supreme Court Demands Civility of the Supreme Court had determined that the lawyer’s The Delaware Supreme Court deserves great credit for rhetoric had not transgressed ethics rules and had not its leadership in attempting to restore civility by crack- violated either Rule 3.5 (“[a] lawyer shall not . . . (d) . . . ing down on lawyers who seek to convert the deposition engage in undignified or discourteous conduct”) or Rule process into a death match. Emblematic of the kind of 8.4(d) (“conduct prejudicial to the administration of jus- extreme incivility that gives hardball litigation its name tice”). The Delaware Supreme Court rejected the Board’s is the infamous deposition conduct chronicled in former conclusions and held that the lawyer had crossed the line Chief Judge Veasey’s addendum to the court’s opinion in and subjected him to a public reprimand. While there is Paramount Communications, Inc. v. QVC Network Inc.8 The certainly room for honest debate about the wisdom of court criticized the conduct of a Texas lawyer defending invoking the disciplinary machinery to censor overheat- the deposition, in Texas, of a witness in a Delaware case. ed rhetoric in briefs (especially where no prior warning The lawyer’s conduct was typified by statements like: has been issued and the lawyer has no prior record), the “Don’t ‘Joe’ me, asshole. You can ask some questions, but Delaware Supreme Court’s view that it needed to do so get off of that. I’m tired of you. You could gag a maggot shows there is a much larger and more serious problem. off a meat wagon.”9 Even though the deposition conduct had not been the Civility Codes of Conduct subject of any motion to the Chancery Court or the Delaware Delaware is not the only jurisdiction to recognize the Supreme Court, and no one had claimed any prejudice from problem of incivility. This problem has not escaped the these antics, the Delaware Supreme Court sua sponte took notice of other courts and bar associations. It has resulted matters into its own hands, literally telling the offending in myriad studies and the enactment of numerous codes lawyer to stay out of town. As the court observed: of conduct designed to moderate attorney behavior and The issue of discovery abuse, including lack of civility instill professionalism and civility among lawyers. and professional misconduct during depositions, is In 1998, the ABA Section of Litigation adopted a matter of considerable concern to Delaware courts Guidelines for Conduct hoping they would “elevate and courts around the nation. One particular instance the tenor of practice [so that] some progress might be of misconduct during a deposition in this case demon- made towards greater professional satisfaction.”15 The strates such an astonishing lack of professionalism and Preamble noted that the Guidelines aspire to help law- civility that it is worthy of special note here as a lesson yers achieve “the twin goals of civility and professional- for the future – a lesson of conduct not to be tolerated ism, both of which are hallmarks of a learned profession 10 or repeated. dedicated to public service.”16 Thus, lawyers are urged to Not surprisingly, the Delaware Supreme Court found maintain a conduct the lawyer’s actions “outrageous and unacceptable,” and characterized at all times by personal courtesy and pro- indicative of “an astonishing lack of professionalism and fessional integrity in the fullest sense of those terms. In civility.”11 The court pointedly said that “it is a mark of fulfilling our duty to represent a client vigorously as professionalism, not weakness, for a lawyer zealously lawyers, we will be mindful of our obligations to the and firmly to protect and pursue a client’s legitimate administration of justice, which is a truth-seeking pro- interests by a professional, courteous, and civil attitude cess designed to resolve human and societal problems 17 toward all persons involved in the litigation process.”12 in a rational, peaceful, and efficient manner. Last year in In re Abbott,13 in the context of a disciplin- The Guidelines then list 31 specific guideposts to inform ary proceeding, the Delaware Supreme Court extended lawyers’ behavior towards their adversaries. its initiative to obnoxious rhetoric in briefs, and disci- Shortly thereafter, the Seventh Circuit adopted plined a lawyer who used “unnecessary invective and Standards for Professional Conduct, which remind law- rhetoric in his briefs.” The court quoted Justice Sandra yers that “[i]n fulfilling [their] duty to represent a client Day O’Connor: vigorously as lawyers, [they] will be mindful of [their] I believe that the justice system cannot function effec- obligations to the administration of justice, which is a tively when the professionals charged with adminis- truth-seeking process designed to resolve human and tering it cannot even be polite to one another. Stress societal problems in a rational, peaceful and efficient man- and frustration drive down productivity and make the ner.”18 The Model Code of Civility and Professionalism process more time-consuming and expensive. Many promulgated by the Litigation Section of the California of the best people get driven away from the field. The Bar encourages lawyers to “avoid hostile, demeaning, profession and the system itself lose esteem in the abusive, threatening or humiliating words in oral and 14 public’s eyes. written communications with other counsel, and with all

NYSBA Journal | March/April 2009 | 35 Our clients are much better off new co-counsel) is someone you know, like and trust – when the lawyers treat each as opposed to the angst engendered by encountering a new opponent who has a score to settle. Indeed, it is other with courtesy and respect. far less stressful to deal with other lawyers who follow the “Golden Rule” rather than the doctrine of mutually assured destruction. And, while we are on the subject of party and third-party witnesses.”19 The Texas Lawyer’s self-interest, a lawyer’s primary assets, especially a trial Creed similarly states that a lawyer “can disagree without lawyer’s, are a good name and reputation, and word of being disagreeable. [A lawyer] recognize[s] that effective mouth travels at warp speed around the legal community representation does not require antagonistic or obnoxious and through courthouses – including chambers. Treat behavior.”20 The New York State Unified Court System an adversary civilly, and that adversary can be not only Standards of Civility provide that “[i]n depositions and a great reference, but can also serve as a great potential other proceedings, and in negotiations, lawyers should source of client referrals. conduct themselves with dignity and refrain from engag- Our clients are also much better off when the lawyers ing in acts of rudeness and disrespect.”21 treat each other with courtesy and respect. After all, any It is a sad commentary on the state of our profession client who is headed for litigation can hardly be expected, that we require comprehensive guidelines to understand except in rare cases, to have a cordial relationship with simple norms of decency that should be self-evident to the other side or to be able to communicate with the anyone, much less to educated professionals. As former other side free from emotion. So, it is up to the lawyers American Bar Association President Lee Cooper stated: to at least try to tamp down the antagonism and keep the Deteriorating civility interrupts the administration of lines of communication open. Lawyers who treat each justice. It makes the practice of law less rewarding. It other respectfully, no matter how intense their clients’ robs a lawyer of the sense of dignity and self-worth dispute, can speak “off the record,” discuss issues openly that should come from a learned profession. Not least and explore potential ways to resolve the satellite dis- of all, it . . . brings with it all the problems . . . that putes that inevitably arise, or even settle the entire case. accompany low public regard for lawyers and lack of At a minimum, civility can also go a long way to reduce 22 confidence in the justice system. litigation expenses. It is likely to be far less expensive for The codes of conduct do prove, however, that there is both sides where a cordial relationship exists between no ethical reason that lawyers, especially litigators, are the lawyers rather than where both sides engage in the expected, much less required, to relinquish their human- “scorched earth” tactics of hardball litigation. Routine ity or sense of goodwill. As one judge eloquently put it: scheduling and discovery matters can be agreed upon “Becoming a lawyer does not require you to lose your without costly motion practice. Where mutual trust exists humanity. Even though you have reached that lofty and both sides respect the adversary system, document place – lawyerhood – don’t leave your courtesy and com- production and depositions often can be worked out in a mon decency behind. Act like a human. If you have for- fair and equitable manner – without unnecessary motions gotten how, fake it.”23 Justice Anthony M. Kennedy has to compel or for protective orders. also echoed this sentiment: Last, it is certainly a “round world”; and, as they say, Civility is the mark of an accomplished and superb “what goes around comes around.” Anyone tempted professional, but it is more even than this. It is an end to yield to the dark side ought to remember that in all in itself. Civility has deep roots in the idea of respect likelihood there will come a time when your client – or for the individual.24 you – may need something from opposing counsel, and a Of course, it goes without saying that our clients retain reservoir of goodwill will really come in handy. us to win, not for our popularity with our colleagues, and Before being accused of being too Pollyannaish, I has- we all want to win for our clients. But, there is absolutely ten to add that a certain amount of tension is inherent in no reason to believe that incivility or overzealousness the litigation process. No matter how civil the lawyers contributes in any way to better results. And there are may be to each other, the parties will no doubt encounter numerous excellent reasons why civility and courtesy can legitimate positional differences along the way that can- benefit lawyers themselves as well as their clients. not be resolved and may require judicial resolution – after all, it is litigation. Just because lawyers respect and trust Self Interest and Client Interest Dictate Civility opposing counsel, does not mean they will not be zealous From a purely selfish perspective, it is certainly a lot in protecting their own client’s interests. “Trust” is fine, more pleasant to deal with another member of the Bar but “verification” is still necessary. ■ with whom you have mutual respect and a positive relationship. Compare the feeling of satisfaction that comes 1. Model Rules of Prof’l Conduct Preamble (2007). from learning your new adversary (or for that matter 2. Model Rules of Prof’l Conduct R. 1.3 cmt. (2007).

36 | March/April 2009 | NYSBA Journal From the NYSBA Book Store

3. Hon. Judith Kaye, “How Do We Make the Standards of Civility Work?”; see Foundation Evidence, S. Gillers, Regulation of Lawyers (6th ed.) p. 499 (“The use of “hardball” tactics in litigation and elsewhere is seen to [be a token of] a decline in professional- Questions and Courtroom ism”). 4. To be sure, videotaped depositions may have a salutary effect on at least Protocols, Second Edition some lawyers by causing them to modulate their more outlandish behavior, but it has not uniformly achieved this result. Ironically, there are instances where videotaping has actually captured for posterity some of the worst deposition conduct imaginable, which then has been widely disseminated over the Foundation Evidence, Questions and Courtroom Protocols, Second Internet for all to see – a phenomenon that can be confirmed simply by search- Edition aids litigators in preparing appropriate foundation testimony for ing YouTube for “depositions.” the introduction of evidence and the examination of witnesses. 5. Model Rules of Prof’l Conduct Preamble (2007). This manual contains a collection of forms and protocols that provide the 6. Model Rules of Prof’l Conduct R. 1.3 cmt. (2007). necessary predicate or foundation questions for the introduction of common forms of evidence—such as business records, photos or contraband. 7. Model Rules of Prof’l Conduct R. 3.2 cmt. (2007). It includes basic questions that should be answered before a 8. 637 A.2d 34, 52–57 (Del. 1994). document or item can be received in evidence or a witness qualified as 9. Id. at 54. an expert. The questions can be modified or changed to fit specific problems, issues or an individual judge’s rulings. 10. Id. at 52. The second edition contains four new chapters—Examination for 11. Id. Defendants Who Want to Proceed to Trial Pro Se, Courtroom Closure, 12. Id. at 54. Other instances of improper behavior abound. The Court of Pre-Trial and Suppression Hearings, and Summations—which will help to Special Appeals of Maryland in Mullaney v. Aude, 126 Md. App. 639, 730 A.2d enhance your practice skills. 759 (Md. Ct. Spec. App. 1999), condemned counsel’s deposition behavior as “a crass attempt to gain an unfair advantage through the use of demeaning Chapter 1 Examination of Chapter 6 Physical and language, a blatant example of ‘sexual [deposition] tactics.’” 730 A.2d at 768. Defendants Who Want to Demonstrative Evidence Remarking that while in the adversarial system lawyers are expected to “with- Proceed to Trial Pro Se Chapter 7 Lay Witness Testimony stand pressure, adversity, and the strategic maneuvers of their opponents[,] Chapter 2 Courtroom Closure Chapter 8 Expert Witness Testimony . . . bias relating to sex, race, religion, or other specified groups is [no longer] Chapter 3 Pre-Trial and Suppression considered acceptable as a litigation strategy.” Id. at 769. In the same vein, Chapter 9 Summations Hearings Judge Pollack in Unique Concepts, Inc. v. Brown, 115 F.R.D. 292, 293 (S.D.N.Y. Chapter 10 Trial and Courtroom 1987), following counsel’s conduct at deposition that “was harassing, wasteful, Chapter 4 Documentary Evidence Protocols vexatious, and ruined the usefulness of the December 30th deposition [and] a Chapter 5 Alternative Procedures for sad and embarrassing display of unprofessionalism,” ordered sanctions and Admission and Preclusion that the deposition be conducted in the courthouse in the court’s presence. of Evidence 13. 925 A.2d 482 (Del. 2007). AUTHORS 14. Id. at 488 (quoting Sandra Day O’Connor, Professionalism, 78 Or. L. Rev. 385, Hon. Edward M. Davidowitz 387 (1999)). Bronx County Supreme Court Criminal Court 15. American Bar Association, Section of Litigation: Guidelines Introduction (1998), text available at http://www.abanet.org/litigation/conductguidelines/ Robert L. Dreher, Esq. counsel.html. Office of the Bronx County Executive Assistant District Attorney 16. American Bar Association, Section of Litigation: Guidelines Preamble (1998), text available at http://www.abanet.org/litigation/conductguidelines/ counsel.html.

17. Id.

18. Standards For Professional Conduct Within The Seventh Federal Judicial Circuit, Preamble (1991), available at http://www.ca7.uscourts.gov/Rules/ rules.htm#standards. PRODUCT INFO AND PRICES 19. State Bar of California Litigation Section’s Model Code of Civility and Professionalism Section 3(a) (2006), available at http://www.calbar.ca.gov/ 2008 / 208 pp., softbound / PN: 41078 calbar/pdfs/sections/litigation/2006-01_model-code.pdf. NYSBA Members $50 20. The Texas Lawyer’s Creed – A Mandate for Professionalism Section III.9 Non-members $60 (1989), available at http://www.txethics.org/reference_creed.asp.

21. The New York State Unified Court System Standards of Civility “Lawyers’ Co-sponsored by the New York State Bar Association’s Health Duties to Other Lawyers Litigants and Witnesses” VII (1997), available at Law Section and the Committee on Continuing Legal Education http://www.nycourts.gov/jipl/standardsofcivility.pdf. Free shipping and handling within the continental U.S. The cost for shipping and 22. American Bar Association, Section of Litigation: Guidelines Introduction handling outside the continental U.S. will be added to your order. Prices do not (1998), text available at http://www.abanet.org/litigation/conductguidelines/ include applicable sales tax. counsel.html.

23. See M. Seigel, To Err Is Human, Litig. (Winter 2008), vol. 34, at 14 (quoting Get the Information Edge Tennessee Court of Criminal Appeals Judge Penny White). NEW YORK STATE BAR ASSOCIATION 24. Anthony M. Kennedy, Law and Belief, in 34-JUL Trial 22 (1998). 1.800.582.2452 www.nysba.org/pubs Mention Code: PUB0460

NYSBA Journal | March/April 2009 | 37 ROLAND B. SMITH, Ph.D. (smithro@ ccl.org) is a senior faculty member at the Center for Creative Leadership, a nonprofit educational institution devoted to leadership development and research. In addition to his duties as an instructor for the Leadership at the Peak course for senior executives, Roland is lead researcher for both the Global Talent Sustainability and Senior Executive Research initiatives. He also serves as the lead faculty for several law firm programs and is responsible for the Center’s Changing Nature of Leadership in Law Firms project.

The Struggles of Lawyer-Leaders and What They Need to Know

By Roland B. Smith

oday, lawyer-leaders must be as agile as white- ners who participated in a leadership training program water guides in treacherous rapids. The current designed for senior executives.2 This article will look at Tglobal economic downturn has created enormous the issues the partners identified, along with insights uncertainty. While certain firms and practice areas have derived from a recent New York Bar Association seminar directly benefited from the downturn, most need to think entitled “Leadership Skills for Lawyers.”3 more strategically and swiftly in determining how best to navigate the rapids of change. Lawyer-leaders are discov- Revisiting the Challenges and ering that being in practice today is like being in a state of Lawyer-Leader Concerns perpetual whitewater. In recent years, law firms have faced a range of chal- Law firm leadership differs from practice manage- lenges – including industry consolidation, increased cli- ment. Leadership is about producing change, while man- ent demands, competition for talent and the emergence agement focuses on producing predictability over proof nontraditional competitors. cesses. As part of a series on the changing nature of lead- The current global economic crisis is intensifying ership in law firms, this article explores the leadership many of these competitive pressures. As a result, indus- of law firms today and the skills necessary to succeed, try consolidation is expected to continue and possibly to thrive and soldier forward during uncertain conditions. It accelerate. In some cases, consolidation is occurring out draws from ongoing research by the Center for Creative of opportunity; in others, it is out of necessity. Some firms Leadership (CCL), involving hundreds of attorneys in have even dissolved under the weight of the pressure. both global firms and midsized U.S. firms.1 It also draws As the crisis deepens, clients are becoming more selec- from a survey of more than 100 senior or managing part- tive about using legal services. At the same time, they

38 | March/April 2009 | NYSBA Journal have more complex challenges and are looking for qual- Defining Leadership Within Law Firms ity and excellence. A study that looked at law firm fail- If leadership is about producing dramatic change with an ures from 1998 to 2004 was updated to look at the current extremely useful outcome, then what kind of leadership economic conditions and the recent dissolution of firms. skills do attorneys need to develop? The list below sum- The study indicated that failing firms exhibit flaws in marizes what managing and senior partners said when one of three areas: below-average financial performance, asked what they hoped to learn by participating in a internal dynamics, and external dynamics. leadership development course. Some of these internal issues could be attributed to productivity problems associated with an unwillingness Leadership Development Needs Identified by to deal aggressively with underperforming partners. The Managing and Senior Partners study also revealed that most of the failed firms suffered from a lack of clear strategies and clearly articulated and 1. How do I communicate more effectively? compatible goals among partners. Of paramount interest 2. How do I listen better? was that these firms lacked strong leadership. The study 3. How can I learn to be more patient? also identified several warning signs, including: prob- 4. How can I become more self-aware? lems of strategic focus, poor leadership, partner defec- 5. How can I increase my ability to influence others? tions, and an unhealthy culture.4 6. How do I lead change successfully? Firms and their leaders are at an “inflection point” 7. How can I drive innovation? that marks the beginning of a significant move either up 8. How do I increase my credibility as a leader? or down. Strategic leadership is an imperative if firms 9. How can I delegate more effectively? are to tip the scale towards upward movement, enabling 10. How can I increase team performance (client team, them to successfully navigate the rapids of change.5 firm leadership, practice group, regional office, firm- Recent trends in the legal sector, coupled with current wide)? market pressures, have increased the competitive nature 11. How can I improve as a leader while maintaining of the legal profession.6 Future success will be based not my rainmaker status? only on the historic practice and transactional skills that 12. How do I get partners to find the right balance make attorneys important, but also will depend on the between personal and firm success? ability of lawyer-leaders to transform their firms and 13. What should the definition of a leader be within inspire the people within them. Leaders must be skilled the context of a law firm, and how do you make it in clarifying strategic direction and in influencing and (leadership) work tactically and practically? aligning various constituencies to achieve commitment 14. What leadership qualities are critical and which are to the firm’s objectives. “nice to have”? Recently, CCL asked a group of attorneys to identify 15. How do I handle the added pressure that comes their current challenges. Their responses highlighted the with being in a leadership position within a firm? dilemma of trying to find balance. Here, “balance” refers 16. How can I improve my ability to develop associ- not only to the tensions between being a producer and ates? a leader, but also between being an attorney and hav- 17. What should I be doing to mentor new partners? ing a private life. Some of the competing pressures the 18. How can I better understand the new generation of respondents identified included (1) taking care of client lawyers? needs versus the day-to-day management needs of the 19. How can I improve my leadership image? firm or practice, (2) spending time on tactical elements 20. What do I need to know to motivate underperform- of client accounts versus time on strategic planning and ing partners? development and (3) spending time on the technical 21. How do I better manage difficult people? aspects of lawyering versus investing in the people side 22. How effective am I in providing feedback to others of the practice. and how can I improve? 23. How can I regain some of my enthusiasm for prac- Law Firm Challenges That Require Strategic ticing law? Leadership Skills7 24. How can I translate my confidence as a lawyer into • Managing talent. confidence as a leader of lawyers? • Making decisions and setting strategic direction. 25. How can I manage my time more effectively? What • Retaining clients and promoting client satisfaction. are some tools? • Addressing growth, developing new and existing 26. What are the strategies other lawyer-leaders use to markets and practice areas. set priorities? • Taking care of yourself while taking care of the firm. 27. What can I do to improve my strategic thinking, decision making and tactical business leadership skills?

NYSBA Journal | March/April 2009 | 39 28. How do I find balance between work and home? The wish list articulated by firm partners who were 29. How can I take the top challenges our firm faces beginning their leadership development journey confirms and translate them into an action plan that all part- that though technical excellence and intellect are critical ners will support? factors for success as a lawyer, emotional intelligence is 30. How can I effectively transfer my technical knowl- the differentiating factor for successful leadership.8 edge and experience to others in order to allow me Developing emotional intelligence starts with becom- more time to lead? ing self-aware. You are able to read emotions, recognize their impact and appropriately use gut feelings to inform Next Steps for Lawyer-Leaders: and guide decisions. You can pursue an effective parallel Thinking and Acting Beyond success strategy for your practice group, regional office or The first step in improving your effectiveness as a lawyer- firm by complementing technical and professional exper- leader is to admit you need help. This is less about dis- tise with new leadership capabilities. closing your vulnerabilities and more about developing As an effective lawyer-leader, you will be more strate- humility. After acknowledging a need for change (either gically agile and able to successfully navigate the rapids for yourself, your group or your firm), you are in a posi- of change that are characterized by complexity, economic tion to move forward. Reflecting on your abilities relative turbulence and growing competition. ■ to the 30 questions above is a first step. Accepting feedback from others on your effectiveness as a leader and 1. Roland B. Smith, 2008. Leading in Times of Complexity and Uncertainty: The Changing Nature of Leadership in Law Firms. Ongoing, unpublished determining how you need to improve is another. research. Center for Creative Leadership. Because leadership is not currently taught in law 2. Leadership for Lawyers Survey. 2007–2008. Ongoing, unpublished schools in any significant manner, you should not be research. Center for Creative Leadership. surprised that leadership skills development is an issue. 3. Leadership Skills for Lawyers. 2008. Presentation sponsored by the New Furthermore, you should not be too hard on yourself, your York State Conference of Bar Leaders and the Law Practice Management Committee. November 7–8. Tarrytown House Estate. leadership team or your firm if you are not yet successful 4. The Anatomy of Law Firm Failures. 2004, 2008. Hildebrandt White Paper. in this area. It was not so long ago that firms and lawyers 5. Matthew S. Winnings, The Power of Law Firm Partnership: Why Dominant first acknowledged the need for “practice management.” Rainmakers Will Impede the Immediate, Widespread Implementation of an While the passage from law school to lawyer can Autocratic Management Structure (Apr. 29, 2005). be difficult and may require support, the journey from 6. Shawn W. Cutler & David A. Daigle, Using Business Methods in Law: The lawyer to lawyer-leader can be even more treacherous. It Value of Teamwork Among Lawyers. 25 T. Jefferson L. Rev. 195, 195, 2002. requires self-awareness, flexibility and the acquisition of 7. Roland B. Smith & Paul Marrow, The Changing Nature of Leadership in Law new skills, knowledge and experiences. The challenges of Firms, N.Y St. B.J. (Sept. 2008), p. 33; see Winnings, supra note 5. an ever-changing environment make leadership develop- 8. Center for Creative Leadership. 2003. Leadership Skills and Emotional Intelligence, available at http://www.ccl.org/leadership/pdf/assessments/ ment an imperative, though. Firms can no longer assume skills_intelligence.pdf. that leaders will simply emerge from the ranks.

Are You feeling overwhelmed? The New York State Bar Association’s Lawyer Assistance Program can help.

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

40 | March/April 2009 | NYSBA Journal Changes for Powers of Attorney in New York By Rose Mary Bailly and Barbara S. Hancock

n January 27, 2009, Governor David Paterson The principal can delegate these sweeping powers to signed Chapter 644 of the Laws of 2008, amend- the agent without fully recognizing their scope (particu- Oing the General Obligations Law to provide sig- larly if the principal executes the document without the nificant reforms to the use of powers of attorney in New benefit of legal counsel). The agent can act immediately, York. Chapter 644 was the result of eight years of study by the New York State Law Revision Commission and was the subject of much debate and comment by several The revised Power of Attorney Law has an original effective date of Sections of the New York State Bar Association. March 1, 2009. However, the effective date was delayed until September The power of attorney is an effective tool for attorneys 1, 2009, after the extension was passed by the Senate (S.1728) on and the public at large for estate and financial planning February 24 and by the Assembly (A.4392) on February 10. The bill was and for avoiding the expense of guardianship. The power signed into law by the Governor as Chapter 4 of the Laws of 2009. of attorney is also a simple document to create. It can be The New York State Bar Association supported this extension in order to obtained from any number of Web sites on the Internet or provide practitioners with sufficient time to prepare for these significant in a stationery store, and its execution merely requires the changes. principal’s signature and its acknowledgment before a For more information please visit our Web site, www.nysba.org. notary public. But this simplicity belies the extraordinary power that the instrument can convey, and its popularity This article is based on the New York State Law Revision Commission’s has also led to its use for transactions far more complex 2008 Recommendation on Proposed Revisions to the General Obligations than were originally contemplated by the law, particu- Law – Powers of Attorney. The Commission’s 2008 Recommendation, larly in the areas of gift giving and property transfers. Chapter 644 and other material related to Chapter 644 can be found at The instrument’s power is also demonstrated by the Commission’s Web site: http://www.lawrevision.state.ny.us. the potential authority the agent can hold. This can ROSE MARY BAILLY is the Executive Director of the New York State include power to transfer assets that pass by will as well Law Revision Commission. BARBARA S. HANCOCK is the Counsel to the as those that usually pass outside a will, such as joint Commission. bank accounts, life insurance proceeds and retirement benefits.

NYSBA Journal | March/April 2009 | 41 unless the instrument is a springing power of attorney, The statutory short form is not valid until it is signed by i.e., one that becomes effective upon the occurrence of a both the principal and agent, whose signatures are duly specified event such as the principal’s incapacity. In all acknowledged in the manner prescribed for the acknowl- cases, the agent can act without notifying the principal. edgment of a conveyance of real property.2 The date on Under a durable power of attorney or springing durable which an agent’s signature is acknowledged is the effec- power of attorney, which continues in effect after the tive date of the power of attorney as to that agent; if two principal’s incapacity, the agent acts without oversight or more agents are designated to act together, the power when an incapacitated principal is no longer able to of attorney takes effect when all the agents so designated control or review the agent’s actions – a situation which have signed the power of attorney and their signatures under common law would have terminated the power of have been acknowledged.3 attorney. A power of attorney executed prior to the effective Despite the broad authority associated with this date of Chapter 644 will continue to be valid, provided important, popular and powerful tool for financial man- that the power of attorney was valid in accordance with agement, the N.Y. General Obligations Law (GOL), which the laws in effect at the time of its execution.4 governs powers of attorney, has been silent as to a number of matters. These omissions include descriptions Major Gifts and Other Property Transfers of the agent’s fiduciary obligations and accountability, Chapter 644 requires that a grant of authority to make the manner in which the agent should sign documents major gifts and other asset transfers must be set out in a where a handwritten signature is required, the limits of major gifts rider to a statutory power of attorney, which the agent’s authority to make gifts to third parties and contains the signature of the principal duly notarized and to himself or herself, the manner in which the principal which is witnessed by two persons who are not named in

The execution requirements alert the principal to the gravity of granting the agent this type of authority. can revoke the document, the circumstances under which the instrument as permissible recipients of gifts or other a third party may reasonably refuse to accept a power transfers, in the same manner as a will.5 In the alterna- of attorney, and the effect on powers of attorney of the tive, the principal may grant such authority to the agent 2003 Health Insurance Portability and Accountability Act in a nonstatutory power of attorney executed in the same (HIPAA) Privacy Rule regarding medical records. The manner as a major gifts rider.6 The creation of a major statute’s provisions have been ambiguous in other areas gifts rider or its alternative nonstatutory power of attor- such as gift-giving authority and authority to make other ney allows the principal to make an informed decision as property transfers. to whether the agent may make gifts or other transfers of Based on its study, the Commission concluded that the principal’s property to third parties as well as to the while a power of attorney should remain an instrument agent. The execution requirements alert the principal to flexible enough to allow an agent to carry out the prin- the gravity of granting the agent this type of authority. cipal’s reasonable intentions, the combined effect of its An agent acting pursuant to authority granted in a major potency and easy creation, the General Obligations Law’s gifts rider or a nonstatutory power of attorney must act silence about several significant matters, and ambiguities in accordance with the instructions of the principal or, in about the authority to transfer assets can frustrate the the absence of such instructions, in the principal’s best proper use of the power of attorney, particularly when a interests.7 All statutory provisions relating to major gifts principal is incapacitated and can no longer take steps to and property transfers have been located in a new GOL ensure its proper use. Chapter 644 addresses these statu- § 5-1514, rather than spread throughout the statute. tory gaps and clarifies the ambiguities to assist parties Powers of attorney often serve two very different pur- creating powers of attorney and third parties asked to poses: management of the principal’s everyday financial accept them. affairs and reorganization or distribution of the principal’s assets in connection with financial and estate plan- General Provisions ning. The General Obligations Law has allowed the use Chapter 644 creates a new statutory short form power of the statutory short form power of attorney for both of attorney. On or after the chapter’s effective date, to purposes. qualify as a statutory short form power of attorney, an The former statutory language and statutory form instrument must meet the requirements of GOL § 5-1513.1 made it difficult for a principal to make an informed deci-

42 | March/April 2009 | NYSBA Journal sion about what, if any, authority he or she wants to give pay medical bills in the event the principal intends to the agent with respect to making gifts and transferring grant the agent power with respect to records, reports property interests in connection with financial and estate and statements, without fear that the HIPAA Privacy planning. Rule would prevent the agent’s access to the records. This First, the gifting and transfer provisions were scat- provision is applicable to all powers of attorney executed tered among other arguably more routine provisions. before, on or after the effective date of Chapter 644.9 It The statutory gifting authority was listed 13th (M) of 16 does not change the law forbidding the agent from mak- powers, and authority over insurance transactions and ing health care decisions.10 retirement benefit transactions, which can include chang- The General Obligations Law has been silent as to the ing beneficiaries, were listed sixth (F) and 12th (L) respec- relationship between the power of attorney, an agent‘s tively; all of these could easily be overlooked. Unlike the authority to access medical records under New York gifting power, the insurance and retirement benefit pow- law, and the Privacy Rule, a federal regulation regarding ers listed on the form gave no hint that their construction individual medical information promulgated in April sections allow the agent to change beneficiary desig- 2003 pursuant to HIPAA. The ambiguity about an agent’s nations. In giving the agent authority over insurance authority to access medical records under New York law policies and retirement benefits, the principal might have arose out of several factors. Neither subdivision K on been thinking of more routine matters, such as the need the statutory short form (power to access records), nor for more insurance or a different type of insurance and § 5-1502K, which construed the term “records,” contained might have been unaware that he or she had given the an express reference to medical records. Moreover, § 18 of agent authority that could alter the estate plan or reduce the Public Health Law, which identifies qualified persons his or her property. who are entitled to access to a patient’s health records, Second, the statutory short form did not indicate that does not include all agents acting pursuant to a power of the agent may be able to engage in self-gifting or desig- attorney.11 As a result, health care providers have refused nate himself or herself as the beneficiary of the principal’s to make records available to an agent seeking clarifica- insurance policies and retirement benefits. tion of a medical bill, without the express language in the The potential for confusion was compounded by a power of attorney document authorizing such release. third factor, namely, the ambiguity of the law regarding The ambiguity thus created is exacerbated by the these types of transactions. The statutory construction HIPAA Privacy Rule, which creates national standards sections for the authority to open joint bank accounts, and limiting access to an individual’s medical and billing to change beneficiaries of insurance policies and retire- records to the individual and the individual’s “personal ment plans, did not require on their face that in order to representative.” Under the Privacy Rule, health informa- exercise such authority the agent also be granted author- tion relating to billings and payments may be available to ity to make gifts or vice versa. So it might appear from a an agent if the agent can be characterized as the principal’s reading of the statute, that the agent could open a joint “personal representative” as defined in the Privacy Rule. bank account and make changes in beneficiary designa- Under the regulations, the “personal representative” for tions without having separate gifting authority. However, an adult or emancipated minor is defined as “a person cases interpreting the statute appeared to hold that if the [who] has authority to act on behalf of a individual who principal intends to authorize the agent to open joint is an adult or an emancipated minor in making decisions bank accounts with the principal and change the benefi- related to health care.”12 ciaries of the principal’s insurance policies and retirement The General Obligations Law has limited the author- benefits, the principal must grant gifting authority in ity of the agent to financial matters, and expressly pro- addition to authority over joint bank accounts, and insur- hibits the agent from making health care decisions for the ance and retirement benefits. principal. The Public Health Law defines a health care Finally, the statute permitted modifications to the decision as “any decision to consent or refuse to consent statutory short form to authorize significant transfers; to health care.”13 “Health care,” in turn, is defined as “any but, like the powers listed explicitly on the form, they treatment, service or procedure to diagnose or treat an could be buried amid masses of legal text and could fail individual’s physical or mental condition.”14 to attract the principal’s attention to the significance of The principal may grant health care decision making these modifications. authority to a third party only by executing a health care proxy pursuant to § 2981 of the Public Health Law. The HIPAA Privacy Rule health care proxy law makes clear that financial liability Chapter 644 adds the term “health care billing and pay- for health care decisions remains the obligation of the ment matters” to the term “records, reports and state- principal.15 As a practical matter, payment issues are left ments” as those terms are explained in construction to the principal or the principal’s agent. The Privacy Rule § 5-1502K,8 so that an agent can examine, question, and regarding access to records does not take into account a

NYSBA Journal | March/April 2009 | 43 One of the goals of the original creation of a statutory the statute was not revised to reflect the agent’s account- short form was to encourage ability until now. ﬁ nancial institutions to accept Principal Chapter 644 adds a section to the statute that explains such documents. how the power of attorney can be revoked.23 It expands the “Caution” to the principal so that the principal will statutory structure such as New York’s, which permits be better informed about the serious nature of the docu- the division of the responsibilities for health care deci- ment.24 Chapter 644 also permits the principal to appoint sions and bill paying between two representatives, the someone to monitor the agent’s actions on behalf of health care agent and the agent. the principal,25 and gives the monitor the authority to request that the agent provide the monitor with a copy Agent of the power of attorney and a copy of the documents Chapter 644 includes a statutory explanation of the that record the transactions the agent has carried out for agent’s fiduciary duties, codifying the common law rec- the principal.26 Such accountability is consistent with the ognition of an agent as a fiduciary.16 A notice to the agent common law requirement that where one assumes to act is added to the statutory short form explaining the agent’s for another he or she should willingly account for such role, the agent’s fiduciary obligations and the legal limi- stewardship. tations on the agent’s authority.17 If the agent intends to accept the appointment, the agent must sign the power of Third Parties attorney as an acknowledgment of the agent’s fiduciary Chapter 644 provides that third parties have the ability to obligations.18 refuse to accept powers of attorney based on reasonable Chapter 644 also requires that, in transactions on cause.27 The basis for a reasonable refusal includes, but is behalf of the principal, the agent’s legal relationship to not limited to, the agent’s refusal to provide an original the principal must be disclosed where a handwritten or certified copy of the power of attorney and questions signature is required.19 In all transactions (including about the validity of the power of attorney based on electronic transactions) where the agent purports to act the third party’s good faith referral of the principal and on the principal’s behalf, the agent’s actions constitute an the agent to the local adult protective services unit, the attestation that the agent is acting under a valid power of third party’s actual knowledge of a report to the local attorney and within the scope of the authority conveyed adult protective services unit by another person, actual by the instrument.20 Chapter 644 allows for the principal knowledge of the principal’s death, or actual knowledge to provide in the power of attorney that the agent receive of the principal’s incapacity when he or she executed the reasonable compensation if the principal so desires.21 document, or when acceptance of a nondurable power Without this designation, the agent is not entitled to com- of attorney is sought on the principal’s behalf.28 When pensation.22 a third party unreasonably refuses to accept a power of Both the durable and springing durable power of attorney, the statute authorizes the agent to seek a court attorney permit the agent to continue to act after the order compelling acceptance of the power of attorney.29 principal has become incapacitated. The intent behind Chapter 644 expands the definition of “financial institu- this change to the common law was laudable – to allow tion” to include securities brokers, securities dealers, an agent to act for the principal precisely at a time when securities firms, and insurance companies30 and provides the principal needs assistance, to permit the principal to that a financial institution must accept a validly executed plan for possible incapacity, and to eliminate the need for power of attorney without requiring that the power of expensive alternatives such as a trust or guardianship. attorney be on the institution’s own form.31 The third However, the principal’s incapacity leaves the principal party does not incur any liability in acting on a power of unable to monitor the agent’s actions and to revoke attorney unless the third party has actual notice that the the power if he or she is not satisfied with the agent’s power is revoked or otherwise terminated.32 A financial conduct. Thus an agent could take actions on behalf of institution is deemed to have actual notice of revocation the principal for months or years, without any super- after the financial institution receives written notice at the vision and not always to the benefit of the principal. office where the account is located and has had a reason- Recognizing that the potential for financial exploitation able opportunity to take action.33 was inherent in the delegation of authority to an agent, One of the goals of the original creation of a statu- public hearings in the early 1990s led to a two-pronged tory short form was to encourage financial institutions to recommendation for reform – educating the principal accept such documents. The anticipated results did not and holding the agent accountable. Changes to the law follow. Many institutions instead required that the prin- regarding the principal’s education were adopted but cipal execute a document prepared by the institution. The

44 | March/April 2009 | NYSBA Journal enactment of the durable power of attorney actually exac- use of powers of attorney in financial and estate planning erbated the situation. If the financial institution would matters.45 ■ not accept a statutory short form durable power of attorney and the principal had already lost capacity, serious 1. 2008 N.Y. Laws ch. 644, § 2, 5-1501B; § 19, 5-1513. All statutory references for amendments to the General Obligations Law are to the sections in Chapter difficulties could ensue because the principal could not 644. legally execute another document. In 1986, the General 2. 2008 N.Y. Laws ch. 644, § 2, 5-1501B(1). Obligations Law was amended to make it unlawful for a 3. 2008 N.Y. Laws ch. 644, § 2, 5-1501B(3). financial institution to refuse to accept a statutory short 4. 2008 N.Y. Laws ch. 644, § 21. form. Notwithstanding this statutory provision, finan- 5. 2008 N.Y. Laws ch. 644, § 2, 5-1501B(2)(a), § 19, 5-1514. cial institutions apparently continue to refuse to accept 6. 2008 N.Y. Laws ch. 644, § 2, 5-1501B(2)(b), § 19, 5-1514. statutory short form powers of attorney and continue to 7. 2008 N.Y. Laws ch. 644, § 19, 5-1514(5). demand that the institution’s own form be completed. 8. 2008 N.Y. Laws ch. 644, § 12. 9. 2008 N.Y. Laws ch. 644, § 21. Other Major Provisions 10. 2008 N.Y. Laws ch. 644, § 12, 5-1502K(1). Chapter 644 increases the amount of the gifting provi- 11. See N.Y. Public Health Law § 18(1)(g) (PHL) (refers only to attorneys who sion to that of the annual exclusion amount under the hold a power of attorney from an otherwise qualified person or the patient’s Internal Revenue Code.34 It adds a provision allowing estate specifically “authorizing the holder to execute a written request for patient information.” An otherwise qualified person is the patient, article 81 gifting to a “529” account, up to the annual gift tax exclu- guardian, parent of an infant, guardian of an infant, or distributee of deceased sion amount.35 These “529” accounts, authorized in the patient’s estate if no executor or administrator has been appointed). Internal Revenue Code at § 529, are popular tax-advan- 12. 45 C.F.R. § 164.502(g)(2). taged savings accounts for education expenses. Chapter 13. PHL § 2980(6). 644 amends the provisions regarding gift splitting to 14. PHL § 2980(4). allow the principal to authorize the agent to make gifts 15. See PHL § 2987. from the principal’s assets to a defined list of relatives, up 16. 2008 N.Y. Laws ch. 644, § 19, 5-1505. to twice the amount of the annual gift tax exclusions, with 17. 2008 N.Y. Laws ch. 644, § 2, 5-1501B(1)(d)(2); § 19, 5-1513(n). the consent of the principal’s spouse.36 18. 2008 N.Y. Laws ch. 644, § 2, 5-1501B(1)(c); § 19, 5-1513(o). 19. 2008 N.Y. Laws ch. 644, § 19, 5-1507(1). Other Provisions 20. 2008 N.Y. Laws ch. 644, § 19, 5-1507(2). An attorney who has been instructed by the principal not 21. 2008 N.Y. Laws ch. 644, § 19, 5-1506(1). to disclose the document to the agent at the time of the 22. Id. agent’s appointment may do so without concern that it is 23. 2008 N.Y. Laws ch. 644, § 19, 5-1511. already a legally effective document because the instru- 24. 2008 N.Y. Laws ch. 644, § 2, 5-1501B(1)(d)(1); § 19, 5-1513(a). ment does not become effective until the agent signs.37 25. 2008 N.Y. Laws ch. 644, § 19, 5-1509. An attorney can certify a copy of a power of attorney 26. Id. instead of having to record it to get certified copies 27. 2008 N.Y. Laws ch. 644, § 18, 5-1504. from the county clerk, which result protects client’s pri- 28. Id. vacy and limits costly trips to the county clerk’s office.38 29. 2008 N.Y. Laws ch. 644, § 19, 5-1510(2)(i). In addition, the default statutory provisions regarding 30. 2008 N.Y. Laws ch. 644, § 2, 5-1501(5). annual exclusion gifting will always be up to date with 31. 2008 N.Y. Laws ch. 644, § 18, 5-1504(1)(b)(1). federal law.39 32. 2008 N.Y. Laws ch. 644, § 18, 5-1504(3). Financial institutions may demand an affidavit that 33. Id. the power of attorney is in full force and effect when they 34. 2008 N.Y. Laws ch. 644, § 19, 5-1514(6)(1). are asked to accept it.40 35. Id. Investigative agencies and law enforcement officials 36. 2008 N.Y. Laws ch. 644, § 19, 5-1514(6)(2). can request a copy of the power of attorney and the records 37. 2008 N.Y. Laws ch. 644, § 2, 5-1501B(3)(a). of the agent41 and bring a special proceeding to compel 38. 2008 N.Y. Laws ch. 644, § 18, 5-1504(1)(a)(1). disclosure in the event of the agent’s failure to comply.42 39. 2008 N.Y. Laws ch. 644, § 19, 5-1514(6)(1). Additionally, the basis for termination and revocation 40. 2008 N.Y. Laws ch. 644, § 18, 5-1504(5). of a power of attorney and resignation of an agent are 41. 2008 N.Y. Laws ch. 644, § 19, 5-1505(2)(a)(3). described,43 as are the relationships among co-agents and 42. 2008 N.Y. Laws ch. 644, § 19, 5-1510(1). the initial and successor agents.44 43. 2008 N.Y. Laws ch. 644, § 19, 5-1511. 44. 2008 N.Y. Laws ch. 644, § 19, 5-1508. Conclusion 45. In so doing, New York’s law has come in line with the laws of many other jurisdictions and the recent amendments to the Uniform Power of Attorney With these changes, New York’s law has been updated Act, available at http://www.law.upenn.edu/bll/archives/ulc/dpoaa/2008_ and refined to reflect the complexities that surround the final.htm.

NYSBA Journal | March/April 2009 | 45 EMPIRE STATE COUNSEL

“We are honored to recognize our members who have made a commitment to ‘do the public good’ by rendering 50 hours or more of free legal service to the poor. These individuals have provided an important public service to the poorest, the most vulnerable and the weakest in our society. They deserve the designation ‘Empire State Counsel’ as they have done their part to help New Yorkers in need while enhancing the public’s perception of our profession.” – Mark H. Alcott, NYSBA President 2006–2007

Empire State Counsel Honorees (as of 2/10/2009) Stewart D. Aaron Leni D. Battaglia Richard J. Brickwedde Anne M. Christon Matthew Abbott Matthew Battaglia Stephanie Lloyd Brill Yasmine Chubin Kerry Acocella Lisa Bauer Sara Brin Michelle Chui Elizabeth Acorn Lea Malani Bays Katherine Bristor Judith Church Julie Boden Adams Scott Beal Antoine Brocas Jean Paul Ciardullo Lauren Amanda Adler Leona Beane Broch Jennifer Bruce E. Clark Meredith Aherne Amy Beard Katherine Bromberg Jason Clark Jennifer Ain Amy Beckman Anna Brook Charity R. Clark Smita Aiyar Doron Beeri Flora Brookfield William Clarke Jr. Kwaku A. Akowuah Tommaso Bencivenga Anne A. Brooksher Curt Clausen Alexandra C. Alderson Ahsaki Benion Timothy Broshears Margaret Clemens Jacob Alderson James W. B. Benkard Michael W. Brosnan Alicia Clifford Hawa Allan Michael Berengarten Amanda Brown Jennifer Co Mark D. Allison Paige Berges Crystal Lynne Brown Monica M. Coakley Marc M. Allon James Bergin David Brown Sara Coelho Daniel Altchek Peretz B. Berk Kevin Brown David Louis Cohen Jacob T. Alter Sharon N. Berlin Stacy Brown Harris Cohen James M. Altman Amanda Shafer Berman Stanley Brown Roger Cohen Nesa R. Amomoo Daniel Berman William J. T. Brown Saralyn Cohen Amanda Ambrose Boris Bershteyn Keri S. Bruce Stephanie Cohen Rebecca Ambrose Alison Arden Besunder Araine R. Buglione Valerie Cohen Amy Anderson Thomas E. Bezanson Warren Buhle David Cohn Christopher Anderson Kenneth Bialkin Brian Burke Jeremy Colby George P. Angelich Luigi Bianco Brian D. Burton Charles E. Coleman Anthony Antonelli Buta Biberaj John Busillo Dwight Collin Joshua Apfelroth Mehrnouush Bigloo Christine Bustany Patrick Collins Jacqueline Arana Shiri Bilik Martha Buyer Sharon M. Connelly Ian R. Arcus Carl D. Birman Marie Buzdugan Alexandria Deep Conroy Brett Arkuss Thomas C. Bivona Peter Byrne David Cook Stacy Armillei Sandra Bjegovic Angelita Caldwell Michael Cooney Keri Arnold Melissa Blades Torello H. Calvani David Cooper Roberta Arnone Clifford Blair Sarah Campbell Micahel A. Cooper Nadia Asancheyev Ari Benjamin Blaut Jonathan Canfield David M. Cost Annika Ashton Ellisha Blechynden Michael Canfield Vittorio E. Cottafavi Salvatore Astorina Lindsay Bleier Julie Capehart Ashlee Crawford James L. Athas Joshua Demetrius Bloodworth Russell Capone Jason Crelinsten Stephanie Atkinson Richard Boatti Shanna R. Cappell Robyn Suzanne Crosson Boris Ayala Bradley Bobroff Phil Caraballo-Garrison Brooke Cucinell Daniel Bach Peter Bockos Lisa M. Card Randall Cude Timothy Bachman Lynn Bodkin Joseph P. Carey Catherine A. Cugell Ariane Baczynski Peter O. Bodnar Tiffany B. Carmona Amy Curry David J. Baker Daniel Boglioli Stephanie L. Carpenter Juliet Curtin Matithyohu Balas Lisa T. Boikess Hunter T. Carter Clare Cusack Dennis R. Baldwin Evan V. Bolla James H. Carter Tamika Cushenberry Jesse Baldwin Michael Bollag Luis Casillas Paul Andrew Czech Aaron Ball Harvey Boneparth Michael Casillo Matthew Dalby Brian Bank Kara Marie Bonitatibus Veronica Castillo Margaret Dale Preeta Bansal Kelly Booker Adrian Castro Sarah Dale Ran Barak Rebecca Boon Dominic Cervoni Michael Dallal Jill Barbarino Daniel Bordoni Mary C. Chan Matthew D’Amore Jessica Barcus Ryan Borho Heather Chase Amy D’Angelo Gideon Bari Andrew Boruch Javier Chavez Jr. Rudy Daniella Steven Barnett Christine Bost-Seaton Brian E. Chebli Harris Danow Whitney Baron Jennifer L. Bougher Martha Constanza Chemas James D’Anza Jason M. Barr Megan K. Bowen Adam Chernichaw Tara Eyer Daub John P. Barrie Sheldon Boyce Carnell L. Cherry James d’Auguste Steven M. Barrison Neal Brandenburgh Jessica Chicalacos Margaret J. Davidson Lauren Hancock Barski Beverly Braun Robert Chilstrom Amie B. Davis John Basinger Alena Brenner Laura R. Chirita Jonathan Michael Davis Fred Bass Mary Bresnan Han Jin Cho James W. Day Nicholas A. Bassett Suzanna Brickman Jennifer Choy Dana De Vivo

46 | March/April 2009 | NYSBA Journal Kelly Deangelis Lauren Tabak Fass Joseph S. Genova Michael J. Haidas Mary Dear Mitchell Feller Alison George Elizabeth Haley David Decker Meghan Fennelly Michael Gerard Christopher Halfnight Anthony Del Guidice Seth Fier Michael B. Gerrard Sarah Lynne Hall Robert Del Tufo Jeannie Figer Lisa Gerson Peter Halpin John Delaney Elizabeth Figueira Jason D. Gerstein John Halski Penny Dentinger Joan Fildes Yuliah Gertsberg Scharf Haroon H. Hamid Michael Denvir Fern Finkel Nizan Geslevich Jyotin Hamid Jennifer L. Dereka Stuart Finkelstein Andrew Giddings Breck Hancock Christopher Desiderio Terrance Finneran Anthony David Gill Laura Handel Gillian M. Deutch Kimberly G. Finnigan Terence Gilroy Carolyn Handler Jesse A. Devine Eric Fishman Neil M. Gingold Timothy J. Haney Peter Devonshire Robert Fiske Sabrina Glaser Kimberly Harbin Dev Dhamija Joshua Flamholz Virginia Ann Glasgow James W. Harbison Jr. Veronica Di Camillo Aaron Fleisher Jessica J. Glass Grace Harbour Jennifer Diana Olatilewa Folami Nathaniel Glasser Anne Elizabeth Hardcastle Dolores F. DiBella Alexander Fong Daniel C. Glazer Adlai Hardin Bruce DiCicco R. Nadine Fontaine Scott Gleason Allison G. Harris Anthony DiLello Robert Foote Jeffrey Glekel Michael J. Hartnett James R. Dillon Robert D. Forbes Peter Glennon Patrick J. Hatch Isabel Katherine Reichardt Dische Adam Ford Joshua D. Glick William Hauptman Anthony Distini Kaleen Ford Paul Godinez Amanda S. Hawthorne Alexander Dmitrenko Thomas Fox Diana Goff David M. Hayes Anna Dodson Andrew J. Frackman Steven Goldberg Bethany Haynes James E. Doench Nuri G. Frame Susan Golden Xin He Michael A. Doherty Melissa B. Francis James Goldfarb August W. Heckman III Michael Dolan Lauren Frank Herschel Goldfield Gerard Hefner Timothy W. Donovan Jonathan Frappier Gerald P. Goldsmith Justin Heinrich Jacqueline Dorn Anthony Frasca Michelle Gomez Adam Jackson Heintz Alison Douglass Alison S. Fraser Douglas J. Good Mickey Heller Sarah Downie Toi Frederick Ariel Gordon Robert M. Heller Timothy Doyle G. Jed Freedlander Keara M. Gordon Nicole M. Helmer John D. Draghi Jill K. Freedman Adam Gottlieb Victor Day Hendrickson Eyal Dror Deborah Simone Fremder Neta-Li E. Gottlieb Douglas W. Henkin Jonathan S. Drucker Brett R. Friedman Jennie Govey Natalie Hennessy James P. Duffy IV Brian L. Friedman Karen C. Goyer Douglas A. Henry Richard Duffy Jacob I. Friedman Sheri Graham Madeleine Hensler Douglas Dunham Jed D. Friedman Jacqueline M. Grant Susan Hensler David Dunn Naana A.Frimpong Lawrence N. Gray Sylvia Heredia Robert Dunn Kelly Margaret Frisch Anne Green Brian J. Herman Carey Dunne Christopher Froelich Johanna Greenbaum Ira L. Herman Peter Durant Bryan L. Frye Carly Greenberg Cynara Hermes Erin C. Durba Elisa Fudim Alisa Greenstein Marc Daniel Hess David Eastlake Jennifer Fuerch Andrew W. Greig William C. Heuer Jamie Eichinger George K. Fuiaxis Elizabeth L. Grennan John Higgins Melissa Eidelheit John F. Fullerton III Robin Grey Samantha Hill Lawrence S. Elbaum John Fufaro Michael C. Griffen Russel L. Hirschhorn Marwa Elborai Carmel Gabby Legault James Michael Griffin Sheldon Hirshon Brad Elias Jaimi Gaffe Shannon Griffin Hoa T. T. Hoang Gary Elias Kevin D. Galbraith Alyssa A. Grikscheit Mark Hoenig Marjorie Elkin Ross Galin William Groake Mark Holdsworth Matthew Elsler Maria Gall Dana S. Gross Steven J. Hollander Diana Eng Howard Ganz William P. Gross Chris L. Holm Gordon Eng Fredelina Hope Garcia Bea Grossman Dave Holtzmuller Jeffrey M. Epstein Barry Garfinkle Liana Grossman Amanda Holzhauer Diana L. Erbsen Michael Garofola Seth A. Grossman Michael Hong Nathan Erlich John Garrett Samantha Grumman Andrea G. Hood Julia B. Errea James L. Garritty Tanya Guerrero Heather L. Hopkins Mauricio A. Espana Stephanie Gase Mark Gurevich Gregory A. Horowitz Larissa Eustice Elisabetta Gasparini Claire P. Gutekunst James Hough Elizabeth Evans Brian Micahel Gatta Jennifer Haber Theresa M. House Nilene Evans Helouise Gauthier Gabrielle Haddad Erica Howard-Potter Douglas H. Evans Amanda Gaynor Alison Marie Haddock David Howe Joaquin J. Ezcurra Brian Gearing Daniel Hadjinian Michael J. Howe Randy C. Fahs Caroline P. Geiger Zlatko Hadzismajlovic Geoffrey A. Hu Sophia Fakhari Matthew T. Geismar Nicole Haff Anna Huang Lily Fan Larry Gelbfish Karen Hagberg Evan Hudson Peggy Farber Melissa S. Geller Michel P. Haggerty Sophia Hudson

NYSBA Journal | March/April 2009 | 47 Kate Huey Sophia Khan Jessica Blaine Lee Meredith Madoon Adam Clark Hull Svetlana Khvalina Mark Lee Tania Magoon Bryan Hunkele Sandyha Kidd Michael Lee Brendan J. Mahaffey-Dowd W. Adam Hunt Dennis D. Kiely Winnie Lee Bipul Mainali Mary Hunter Dillon Kim Mark L. Legaspi Hazel T. Malcomson Michael Hurley Minji Kim Devin S. Lei Lindsay Maleson Daniel Hurteau P. Stephen Kim Michael Leichtling Christina Maloney Akbar Hussain Tracey Jiae Kim Thomas M. Leineweber Jeanette Manausa Adam Hyatt Allison McKinnell King David Leitner Rajwant Mangat Alex Ifill Barbara J. King Laura M. Leitner Michael D.Mann Anna Lee Iijima Matthew King Mark Lemire Linton Mann III Carissa Illig Alexander M. Kipnis James Leonard Jr. Janson Mao Michele Nadler Ingber Sarah Kirby Julie Leonhardt Michael Maoz Jason Isralowitz Eliot Kirshnitz Stephen Charles Lessard Stephanie Marcantonio Sarah Izfar Fritz Klantschi Henry Lesser Jonathan Marden Janice V. Jabido Andrew H. Kleiman Ryan Scott Lester Adam Marlowe Elisa Jaclyn Erica Klein A. Thomas Levin Michael F. Marino III Evan Jacobs Angela Kleine Erin S. Levin Nicole Marro Lazarus James David L. Kleinman Noah Levin Adriana M. Martinez Bijal M. Jani Adam Klepak Aaron H. Levine Pamela A. Mascio Matthew Jennejohn Vladmir Kleyman Adina C. Levine Gregory Maskel Jennifer Obrien David Klingsberg Brian Levine David A. Mason Nellie P. Jennings Jens Knudsen Laurie Levine Elihu S. Massel Wei “Genie” Ji David A. Kochman Orrin R. Levine Ann Matthews Heidi Johanns Elizabeth Koenig Jessica Levitas Carol S. Maue Curtis Johnson Sidney Koenigsberg Steven B. Levitsky Julie A. Mc Cane Khelia J. Johnson John Koeppel Jamie Levitt Benjamin Franklin McAnaney William Johnson John T. Kologa Elissa Levy Kathleen McArthur Zachary Johnson Daniel F. Kolbas Evan Levy Daniel McAvoy Eric Jokinen Jeffrey Kopczynski Peter H. Levy Monica Petriglia McCabe Douglas Jones Kristen Koren Amy G. Lewis Julie A. McCane Seunghee Lucy Joo Mark Kornfeld Bryan Lewis Keira McCarthy John Kabealo Emily C. Korot David A. Lewis Eichakeem L. McClary Daniel Kahn Smita Korrapati Donald Lewis Andrew McClure Scott H.Kaiser Stergios P. Kosmidis Robert P. Lewis George McCormack Heather Kalachman Amanda R. Kosonen Nicole Leyton Jean McCreary Matthew R. Kalinowski Jessica Kramer Adam Libove Austin F. McCullough Stephanie Kamerow Steven C. Krane Jason Lichter Megan McCurdy Elida B. Kamine Steven C. Krause Joseph R. Lipofsky Mark McDermott Anna G. Kaminska Sara Krauss Leonardo Lipsztein Patrick McDonnell Vanessa Kanaga Aaron Krawitz Michael Lissner Eliza McDougall Lacey Kane Kevin Krupa Bruce L. Listhaus James P. McElheny Lauren B. Kanter Natalie Kuehler Justin N. Lite Brian McElroy Alex B. Kaplan Megan Kultgen Josephine Liu Colm McInerney Seth Kaplan Poonam Kumar Michael Liu James P. McIntyre Stacy Kaplan Ilya Kushnirsky Laura A. Livaccari Crystal McKeller Jonathan Karas Yoo-Kyeong Kwon Katrina M. Llanes Melinda L. McLellan Ryan Scott Karben Dianne La Rocca Alicia Llosa William J. McNamara Reilly Karsh Jason T. Lagria Christopher Loeber Micah J.B. McOwen Jessica Kastner Mei Lai Mads Robert Loewe Sean McPhee Anastasios G. Kastrinakis Eric B. LaMons Andrew Lopez Mark McPherson Cheryl L. Kates Elizabeth G. Land Gina Love Daniel Medalie Alyssa R. Katz Nathan R. Lander Christopher Lovejoy Lillian Medina-Zelazny Dana L. Katz William Lang John Lovi Georege. E. Mehakchick David Katz Ryan W. Lang Cynthia Teresa Lowney Gabriel Meister Alex S. Kaufman Henry C. Lang Jr. Lily J. Lu Marc Melzer Charles Kaufman Chris Michael LaRocco Margaret C. Lu Nicholas M. Menasche Jessica Kaufman Elizabeth F. Larsen Brianne Lucyk Aaron Mendelsohn Bruce Kayle Laura J. Lattman David Luder Grissel Mercado Seth M. Kean Kenneth Laverriere Wendy Luftig Thomas Meriam Brendan T. Kehoe Daniel R. Lavoie Jennifer Lupfer Semra A. Mesulam Shane B. Kelbley J. Alexander Lawrence Stacy Lutkus Allison E. Meyer Leon Kelly Jerome Lawton Joanne Lynch Natasha Meyers Jennivere L. Kenlon Jessica Lazarin Olga Lysenko Anna Mihailova Anne E. Kennedy Karen Lederer Susan Mac Cormac Leonid Mikityanskiy Charles Kerr Abdul-Rahman A Lediju Barrett D. Mack Atara Miller David M. Kerr Celina Lee Eric Mack David Miller George E. Kersey Donald Lee Elisabeth Madden Jed Miller L. Brent Kessler Grace Lee Meredith I. Madon Pamela Miller

48 | March/April 2009 | NYSBA Journal Paula Miller Jennifer Orr Clara Pugsley David M. Rubin Sharon Mills Charles B. Ortner Alex Purtill Stephen W. Rubin Rhett Millsaps Erin Oshiro R.A.U. Quast-Juchter Leif I. Rubinstein Jessica S. Milner Benjamin Ostrer Stefan Quick Charles Rubio Alexandra Minkovich Aisling O’Sullivan Rizwan A. Qureshi Daniella Rudy Loretta Miraglia Christopher Owens Sarah Sandok Rabinovici Gabrielle Ruha Michael Mishik Olumide Owoo Lauren J. Rabinowitz Joshua Ruland Michael Mitchell Aaron Page Kurt William Rademacher Christian Rutherford Richard A. Mitchell James Pak Connie A. Raffa Joshua W. Ruthizer Marianna F. Miyazaki Gregory Palumbo Shaila S. Rahman Sarah E. Ryan Anders Moberg Wenseng Pan Christopher A. Raimondi Patricia Ryder Jason Moff Christopher Panaro Harsha Rao Matthew Rymer Michael Mohun Ritu Pancholy Simon Rasin Martha C. H. Sabo Veronica H. Montagna Jessica W. Paniccia Brian S. Rauch Gerald Stephen Sacco Autumn Montague Christopher A. Paniewski Ronald S. Rauchberg David Sack Tamika Montgomery Mark Parise Gary Ravert Rodger Andrew Sadler Heather Moore Brett I. Parker Adam Ravin Abraham Safdie Rosa Morales Jason Wyatt Parsont Kate Rawsthorne Joseph R. Sahid Thomas H. Moreland Joshua S. Paster Claudia Ray Seema Saifee Matthew J. Morris Neeraj N. Patel Milinda J. Reed Dana L. Salazar Patrice Morrison Alexander B. Patterson Robert W. Reeder Joseph J. Saltarelli Sabrina Morrissey George D. Pavelenishvili Ellis L. Reemer Adam M. Saltzman James J. Morrissey Jr. Nicholas Paul Pavlidis Blake Reese Peter Samberg Steven H. Mosenson Ellyn Pearlstein David Reina Cary B. Samowitz Edward Moss Stephen J. Pearson Natlee Reisen Peter Samuels Michael Mueller Graham M. Pechenik John E. Reisinger Sharon A. Sandell Abigail Mulligan Julia Peck Sarah Reisman Thomas H. Santoro Edward J. Mullins Anita Pelletier Alan G. Reiter Stephanie Sarzana Jean Paul Murwanashyaka Rachel Penski Angela Rella Alan E. Sash Jacqueline Munalula Musiitwa Abigail L. Perdue James Philip Renken Amy Sato Alan Myers Andrew J. Perel Stephanie N. Restifo Dean W. Sattler Cameron A. Myler Jared Perez Natalia Restivo Kevin Saunders Asieh Nariman Julian D. Perlman Allan E. Reznik Gerald W. Sawczyn Tara Nash Justin B. Peri Andrew E. Rice John C. Scalzo Jason D. Navarino Sara B. Perry Jill Rickard Robert M. Scannell Amber Neal Martin Petroff Patrick Rideout Madeline Schacter Catherine Nearpass Benjamin D. Petrosky Michael Rips Kristi Schaeffer Gregory Nearpass Michael Petrusic U. Pamela Rivas Mikhel Schecter Benjamin Needel Jonathan Petts Jinsoo J. Ro Larry P. Shiffer Edward Neiger Margaret F. Pfeiffer William C. Robertson Steven L. Schiliro Jay A. Neveloff Stephanie N-P Pahn-Quang Kathy Robb Sarah Schindler-Williams Andowah Newton Amy Jo Phillips Lucy Robb Rachel Schipper Katherine Ng Craig A. Phillips Henry H. Robbins Paul Schittek Leslie Nguyen Cristine I. Phillips Stanley A. Roberts David M. Schlachter Orly Nharssi Rachel Phillips Flamm Ashley B. Roberts Adam W. Schneid Aurore Nicaud Victor N. Piacente William C. Robertson Courthey Schneider Patricia Niebauer Elizabeth R. Pike John Gregory Robinson Allison Scheiders David Nir Michelle Pironti Terence Robinson Brian Schreyer Michael L. Nisengard Kathleen F. Pirozzolo Kathy H. Rocklen Kelly Schultz Michael E. Nissim Eileen Pizzuro Gail Rodgers Jon Schumacher Christine E. Noh Ryan Plasky Veronica Rodriguez Daniel J. Schwartz Olivier Nolens Lisa Plush Jacqueline Roeder David M. Schwartz John M. Nonna John F. Pokorny Kristy M. Rogan Lea Schwartz Miles Norton Alan Roger Pollack Courtney M. Rogers Rachel E. Barber Schwartz John C. Novogrod Robert Pollak Mae Rogers Thomas Schwartz William A. Novomisle Max Polonsky Christopher Rosado Jennifer Scullion Robin Nunn Brian Polovy Andrew Rose Lenor Marquis Segal Amanda H. Nussbaum Dale L. Ponikvar Sarah Rosell Barbara L. Seniawski John Nutter Elitza K. Popova-Talty Adam J. Rosen Manda M. Sertich Jennifer O’Brien Charles I. Poret Thomas I. Rosen Christopher Service Elise O’Connell Gail S. Port Joseph I. Rosenbaum Payal K. Shah Justin O’Connell David J. Posner Lee Rosenberg Adam Shajnfeld Olivia Odell Julia S. Powell Matthew W. Ross Andrew A. Shapiro Melissa Oliver Wesley R. Powell Lawrence N. Rothbart Jonathan Charles Shapiro Michelle Oliver Jean Powers Jonathan Rothberg Joshua Shapiro Anthony Onorato Dr. Arianna Pretto-Sakmann Jean R. Rotheim Steven B. Shapiro Randolph C. Oppenheimer Victor L. Prial Jessica Rothstein Varun Shatty Ronald B. Orlando Ryan Patrick Prindle John Rousakis BriAnne Shaw James Orme Jason Pruzansky Adam D. Rubin Charles Shaw

NYSBA Journal | March/April 2009 | 49 Amy Terry Sheehan Benjamin D. Stone Sergio Villaverde Alice F. Yurke Jeremiah P. Sheehan Helayne O. Stoopak Elizabeth Virga Marc A. Zametto Joseph A. Sherinsky Brandon H. Story Elena Virgadamo Tracy Zanco Jonathan Shih Peter A. Strauss Nikolay Vydashenko Marlene A. Zarfes Pamela Shisler Randi Strudler Adam Wactlar Marissa F. A. Zavarella Judith Shophet Karen Suber Justin Wagner Lillian Medina Zelazny J. Michael Showalter Benjamin Suksomnil Charles V. Wait Jr. Brenda L. Zelin Kate Shreeves Andrew Sullivan Jay W. Waks Binghao Zhao Amisha Shrimanker Daniel Sussner Sarah E. Walcovich Zhanna Ziering Mark D. Shtilerman Willaim Wade Sutton Jr. Marian Waldmann William C. Zifchak David A. Shuster Alexander Swartz K.C. Allan Waldron Gregory Zimmer Erin Shute Rhiana L. Swartz Andrew Walker Nancy Zoubek Nakeeb Siddique Ivan Taback Jerome Walker Joseph Zujkowski Adam David Siegartel Ronald J. Tabak Michael J. Walsh Kathyrn Zunno Justin S. Siegel James Talbot Thomas W. Walsh John Siffert Hyosung Tang Angela Wan Justin Silverberg Miriam Tauber Shirley Wang Law Firms with 10 or James R. Silkenat Joel M. Taylor Paul Ware Jr. More Attorneys Qualifying Cecilia A. Silver Willard B. Taylor Irwin H. Warren Ari Silverman Ashkan Tehrani Henry Wasserstein as Empire State Counsel Marcia Simms Keren Tenenbaum Brien Wassner Arent Fox LLP Rebecca Simone Catherine P. Tennant Melinda H. Waterhouse Scott Simpson David Tennant R. Scott Weavil Baker & McKenzie LLP Charles Sims Kent T. Terchunian Elizabeth M. Wieckowski Bryan Cave LLP David C. Singer Alison The Amy Weiner Cadwalader Wickersham Daniel Zweig Sinrod Christopher Thomas Andrew Weiner & Taft LLP Adam Siry Vikram Thomas Margaret Armstrong Weiner Hannah Skeete Karen Thompson Robert A. Weiner Davis Polk & Wardell LLP Stacy Slater Kimberly Thompson Elan E. Weinreb Debevoise & Plimpton LLP James S. Sligar Sara Thompson Jordan D. Weinrich Dewey & Leboeuf LLP Erica C. Smilevski Jeffrey Thorn William H. Weisman Douglas Smith Eric Tirschwell Julie Weiswasser DLA Piper (US) LLP James Smith Andrew E. Tomback Mason Weisz Goodwin & Procter LLP Toby W. Smith Chaeri Kim Tornay Jessica M. Weitzman Hogan & Hartshorn LLP Ruti Smithline Jason Torres Eric Welsh Lauren Courtney Smythe Jeffrey S. Trachtman David Wenger Hunton & Williams LLP John Snyder Hugo Triaca Michael Werthenschlag Jones Day LLP Jennifer Banner Sobers Anna Triponel Hannah R. West Kaye Scholer LLP David M. Sollors Matthew Trokenheim Erica Westenberg Ariel Solomon Andrea A. Trujillo Zev Wexler Kramer Levin Naftalis Elizabeth Solomon Fox Sharon L. Trulock Debra Alligood White & Frankel LLP Heather R. Solow Elena Tsaneva Kathryn Whitfield Mayer Brown LLP Nooshin Soltani Erica Tso Craig Whitney McDermott Will & Emery LLP Jessica Sonenshein Matthew Tulchin Megan Whyte Panka Soni Christopher R. Tulimieri Ryan Williams Milbank Tweed Hadley & Marisa A. Sotomayor Matthew B. Tully Thomas Williams McCloy LLP Jamie J. Spannhake Julie Turner Thomas B. Wilner Morgan Lewis & Bockius LLP Tamieka Spencer Bruce Brian J. Turoff David Wishengrad Morrison Foerster LLP Marc A. Spezzano Christopher Tyrell Anthony T. Wlasyka III A. Nicole Spooner Andrew Udin Samuel Wolfe Nixon & Peabody LLP Joshua Sprague Wendy Unglaub Charles Oliver Wolff O’Melveny & Myers LLP Jeffrey A. St. Clair Alexander J. Urbelis Jordan Wolff Orrick Herrington & Sutcliffe Rachel St. John Michael J. Ushkow Jeremy Wolk LLP Daniel Eyitayo St. Matthew Stephane Valat Diana L. Wollman Christopher Staszak Amy E. van den Broeck Jennie Woltz Proskauer Rose LLP Elliott H. Steelman Jeffrey D. Vanacore Carmen Wong Ropes & Gray LLP Andrea Stefanescu Matthew J. VanBeveren Jessica Wong Shearman & Sterling LLP Debra Steinberg Kurt A. VanDerslice Spencer R. Wood Tipi C. Stela Nitchaya Vannasaeng Daphnee Saget Woodley Skadden Arps Slate Meagher Emily Stern Tina Maria Varghese Elise A. Yablonski & Flom LLP Janna Fishman Stern Joanna R. Varon Barbara Yan Steptoe & Johnson LLP Michael Sternhell Jerry George Vattamala Irina Yevmenenko Sullivan & Cromwell LLP Rachel Stevens Marisol Vasquez Noriko Yokosuka Susan Stevens-Carsero Leo Vellis David Yolkut Troutman Sanders LLP A. Brendan Stewart Megan K. Vesely Kevin Younai Weil Gotshal & Manges LLP Spencer Stiefel Daphne Vicek Allison Young White & Case LLP Christopher Stiner Ronald W. Victor Jennifer Yu Damien Stodola Elena Vigadamo Meishin Yueh Vanessa C. Stoffels Marcos D. Vigil Jenny Yun

50 | March/April 2009 | NYSBA Journal ATTORNEY PROFESSIONALISM FORUM

To the Forum: that now take place on-line, may create Determining what may or may not I am a member of a bar association unanticipated violations of our duty to be embarrassing to a client is a rather listserve in which members discuss protect client information. subjective test. However, in certain legal issues that affect their practices. Every discussion of an attorney’s circumstances the mere fact of repre- Often, a member will post a question duty to protect client confidenc- sentation by a particular attorney may that relates to a specific matter he or es must start with DR 4-101 of the be embarrassing, such as when a cli- she is handling, and begins by writing, Code of Professional Responsibility ent consults a criminal or matrimonial “I have a client who . . . ” The posting [22 N.Y.C.R.R. § 1200.19] – at least, attorney, or when an attorney retains attorney then goes on to explain the that is, until April 1, 2009 when the an expert in a disciplinary matter. matter, provide an analysis, including Rules of Professional Conduct will Clearly, the facts involved in the questions and uncertainties, and his take effect. The parallel provision to questions you have considered posting or her perception of the strengths and DR 4-101 in the new Rules is Rule came into your possession through the weaknesses of the client’s position. 1.6. There are differences in word- attorney-client relationship, and you Such a post typically generates ing, and a new exception has been must protect that confidential infor- numerous responses. I have often con- added permitting lawyers to reveal mation. The answer to your question sidered seeking advice from the mem- confidential information “to prevent therefore seems to turn on two con- bers of the listserve concerning matters reasonably certain death or substan- cerns: whether the posting will reveal I am handling, but have hesitated to tial bodily harm.” The two Rules are your client’s identity and the nature of do so because I am concerned about otherwise substantively similar. Both the confidential communications you revealing a client confidence without prohibit an attorney from revealing are required to protect. the client’s consent. I am also con- client information except in specific Ethical Consideration 4-2 may be cerned that a potential or actual adver- circumstances, including where the helpful in answering your question. sary might read my post and obtain an client has consented after a full dis- Written long before the advent of list- advantage by knowing my thoughts closure, defined under the new Rule serves, it states, in pertinent part: about the matter. Does posting a hypo- as “informed consent.” A lawyer must always be sensi- thetical about a specific client matter For the purpose of answering your tive to the rights and wishes of [a] violate the obligation to keep client question, we will assume that your cli- CONTINUED ON PAGE 52 communications confidential? ent has not consented to the revelation Sincerely, of the information and that none of Lawyer Online the other exceptions in the old or new The Attorney Professionalism Committee Rules apply. Obviously, you could ask invites our readers to send in comments Dear Lawyer Online: your client for consent to submit the or alternate views to the responses As modern lawyers access the new question to the listserve after provid- printed below, as well as additional methods of communication that ing a thorough explanation of the risks hypothetical fact patterns or scenarios to advanced technology has to offer, their of doing so. If you decide to make a be considered for future columns. Send duty to protect the confidentiality of discreet request for assistance from the your comments or questions to: NYSBA, client information has not changed. other members of the listserve without One Elk Street, Albany, NY 12207, Attn: The unique features of electronic com- client consent, you should consider the Attorney Professionalism Forum, or by munication require that precautions be following issues. e-mail to [email protected]. taken to avoid the casual disclosure of Does the disclosed information con- This column is made possible through client information. stitute a “confidence” under DR 4-101 the efforts of the NYSBA’s Committee on Unquestionably, a lawyer’s ability or “confidential information” under Attorney Professionalism. Fact patterns, to seek advice from knowledgeable Rule 1.6? Both are defined as informa- names, characters and locations presented colleagues is, and always has been, tion gained during the representation in this column are fictitious, and any resem- an important resource that provides of a client that (1) is protected by the blance to actual events or to actual persons, considerable benefits for clients. Even attorney-client privilege under appli- living or dead, is entirely coincidental. These before the dawn of the information cable law, or (2) is likely to be embar- columns are intended to stimulate thought age, forums such as bar association rassing to the client, or (3) the client and discussion on the subject of attorney functions, continuing legal education has requested it be kept confidential. professionalism. The views expressed are courses, and even holiday cocktail par- You might also examine CPLR 4503, those of the authors, and not those of the ties provided fertile ground for testing which generally provides that infor- Attorney Professionalism Committee or ideas and gaining insight into both mation coming into the possession of the NYSBA. They are not official opinions simple and complex legal matters. an attorney through the attorney-client on ethical or professional matters, nor Nevertheless, those communications, relationship may not and shall not be should they be cited as such. and the more common and casual ones revealed to a third party.

NYSBA Journal | March/April 2009 | 51 CONTINUED FROM PAGE 51 communications can be forever and involve confidential client communica- client and act scrupulously in the may spread without limitation. tions, but could adversely affect the cli- making of decisions which may The American Bar Association ent or the outcome of the client’s mat- involve the disclosure of informa- Standing Committee on Ethics and ter. Consider, for instance, the hypo- tion obtained in the professional Professional Responsibility discussed thetical facts described in Los Angeles relationship. Thus, in the absence Ethical Issues in Lawyer-to-Lawyer County Bar Association Professional of consent of the client after full Consultation in Formal Ethics Opinion Responsibility and Ethics Committee, disclosure, a lawyer should not 98-411. Although the Opinion focused Formal Opinion 514 (8/19/05). The associate another lawyer in the on one-on-one consultations and did Opinion was titled Ethical Issues Involv- handling of a matter; nor should not address the implications of seeking ing Lawyer and Judicial Participation in [the lawyer], in the absence of con- advice on a listserve, the principles dis- Listserv Communications. sent, seek counsel from another cussed still apply to your question. There, a poster sought an accountant lawyer if there is a reasonable pos- “If the hypothetical facts discussed as an expert witness and a member of sibility that the identity of the cli- allow the consulted lawyer subse- the listserve responded with the recent or [the client’s] confidences or quently to match those facts to a spe- ommendation of a particular certified secrets would be revealed to such cific individual or entity, the informa- public accountant (CPA). That post lawyer. Both social amenities and tion is not already generally known, was followed by yet another which professional duty should cause a and the disclosure may prejudice or sharply criticized the CPA’s creden- lawyer to shun indiscreet conver- embarrass the client, the consulting tials. A judge who subscribed to the sations concerning clients. lawyer’s discussion of the facts may listserve realized that the CPA would have violated his duty of confidenti- soon be testifying before him. The Suppose, for example, that Robert ality under Rule 1.6.” [ABA Formal judge posted his own message advis- Shapiro posted a listserve message Opinion 98-411, page 2.] Moreover, the ing that messages should be censored that read, “I once represented a former Committee stated that “disclosure of to avoid ex parte communications. football star accused of murdering his privileged communications by the con- Although the L.A. County Bar Ethics wife. He told me he was guilty. What sulting lawyer could be held to waive Committee found no actual violation was my ethical duty to the court?” the attorney-client privilege.” [Id.] The of the prohibition against ex parte con- Everyone would know exactly who his Committee also recommended that tacts with a judge “on the merits” of a client was, and he would be violating the consulting lawyer avoid consult- pending matter, it warned that his duty to keep client communica- ing with a lawyer who is likely to be since one can never know who tions confidential. The same would or become the adverse party’s lawyer, might read or react to an e-mail be true if he made that statement at a and to obtain assurances of confidenti- posted on the Internet, and cocktail party. ality from the consulted lawyer. because it is likely that judges will You are no Robert Shapiro, you While these precautions might work be included in listservs or other say? Well, consider the possibility that in a lawyer-to-lawyer consultation, the open communications lists, it is although your post to the listserve impracticality of seeking and obtaining incumbent on attorneys to avoid might not explicitly disclose your cli- such protections from the members of including any confidential or pri- ent’s identity, the facts in your “hypo- a listserve – comprised of what could vate information in a listserve or thetical” question might. If you are be thousands of participants – is obvi- other Internet posting that could a matrimonial attorney posting to a ous. Those giving advice on a listserve, be identified to a particular case or listserve comprised of divorce lawyers, as well as those seeking it, should also controversy. one of them may be your adversary be mindful of the obligation to keep cli- and recognize the facts. If you are a ent information confidential, because We all need the help of colleagues trust and estates attorney, the same this is a duty that goes to the very core from time to time. But we must always may be true. The principle applies to of the attorney-client relationship. For be mindful of protecting confidential all fields of law. example, a personal injury defense client information. When there is any Casual conversation with a col- attorney might have valuable advice possibility that you might compromise league at a bar association meeting to offer a plaintiff’s counsel who posts a client’s position or inadvertently dis- where you seek help with a matter a question. What if the defense attor- close confidential information, erring is one thing, but broadcasting your ney’s carrier client turns out to be on the side of caution is best. In consid- query to what may be thousands of the insurer on the matter? See In re ering a post to the listserve, you should recipients is quite another, and can be Caliguiri, 50 A.D.3d 90, 851 N.Y.S.2d analyze whether the specific facts could quite dangerous. Moreover, unlike a 148 (1st Dep’t 2008). potentially be identified with a specific verbal conversation, which is present And there are other dangers in post- client by someone receiving the hypo- in one individual’s memory, digital ing to a listserve that might not directly thetical query. If there is any possibility

52 | March/April 2009 | NYSBA Journal of such a disclosure, you should consult with the client before making the QUESTION FOR THE From the NYSBA Book Store post. That consultation should include NEXT ATTORNEY a full disclosure of the information you PROFESSIONALISM FORUM: New York Residential intend to post, who might receive the Landlord-Tenant Law information, and the consequences if I work for a mid-sized upstate law the information ends up in the hands firm which represents various busi- and Procedure NEW of a potential adversary or other unau- nesses throughout the area. Three of New York residential land- thorized party. these businesses (we can refer to them lord-tenant law is daunting as Installer One, Installer Two and the to newcomers and the The Forum, by experienced alike, given its Lawrence F. DiGiovanna Owner) recently became adversaries patchwork statutory frame- Brooklyn, New York in litigation concerning an oil spill. work, discordant case law, Briefly, Installer One and Installer Two and emotion-laden disputes involving homes, money, and We received the following response to separately installed two different safe- the charged landlord-tenant the question from “Involved,” which was ty mechanisms to an oil heating system relationship. This monograph published in the February Forum: located in the basement of the Owner. introduces the fundamentals of residential landlord-telandlord-ten-n- ant law and offers a guide to the procedural mechanics Allegedly, both of these safety mecha- practitioners face in landlord-tenant disputes. Dear Involved: nisms failed and suit was brought by You, Sir, are a rat. Having trifled with the Owner against both Installers. My AUTHORS the young lady’s affections, you now firm declined to represent any of the churlishly express doubts. three businesses in that litigation after Hon. Gerald Lebovits, New York City Civil Might these circumstances “ulti- initial consultations about the mat- Court, Housing Part, New York, NY Damon P. Howard, Esq., Finkelstein Newman mately cause problems” for you and ter. However, the Owner’s insurance Ferrara LLP, New York, NY your firm? Of course, there is no way company has now refused to cover the Dan M. Blumenthal, Esq., Ezratty, Ezratty & to have a “relationship” without prob- costs associated with the spill, and the Levine, L.P., Mineola, NY lems. However, consider the following Owner wants to challenge that refusal possibilities: in court. Its principal has requested our INFO & PRICING • she does something which representation in the matter. Although PN 4169 | 2008–2009 | 108 pages | softbound requires you to report her to the we do not represent the Installers with NYSBA Members $72 Non-Members $80 firm; regard to the pending oil spill litiga- • you do something which puts her tion, would it be proper for the firm to * Free shipping and handling within the continental U.S. The cost for shipping and handling outside the in a difficult position: either of represent the Owner in its insurance continental U.S. will be added to your order. Prices do you has influence on the other’s coverage case? not include applicable sales tax. compensation or performance rat- Sincerely, 1.800.582.2452 ing; Caught in the Middle www.nysba.org/pubs • she controls the assignment of Mention Code: PUB0461 company business to you: there can be good faith disagreements over how to handle a situation; • your loyalty may be conflicted between the company and her. Severing your relationship is a futile response, even if that is what you want. Sitting down with her and work- ing out a set of rules to avoid professional entanglement probably would be constructive. Best wishes, David M. Goldberg Brooklyn, New York

NYSBA Journal | March/April 2009 | 53 THE LEGAL WRITER Some type sizes vary even when White space refers to the area on CONTINUED FROM PAGE 64 the writer chooses the same point size. the page where no text appears. White readers. Writing in the same type- They vary because of the x-height: the space includes the margins, the space face signals that all the information is height of a lowercase “x” rather than around headings, and the space around significant. Using different typefaces the average of all the letters on a line block quotations. White space doesn’t gives a document a cut-and-paste, dis- of text. Type size with a larger x-height include the blank lines in double- tracting appearance. The document is easy to read. Type size with a smaller spaced text. White space affects docu- will look like a ransom note.9 Use dif- x-height fits more characters on a line. ment readability. White space helps ferent typefaces in advertisements, not In New York, the Civil Practice Law readers focus on the text: It makes legal documents. and Rules (CPLR) 105(t) explains how the text stand out. White space also Some type is monospaced; some is to determine whether you’ve complied lets readers rest after reading the text: proportionally spaced. Monospaced: with text-size requirements: CPLR It breaks the monotony. White space Every letter takes up the same amount 2101(a) provides that the letters in a gives readers information in bite-sized of space. Example: Courier. In Courier, summons be no less than 12 points and bits to enable the reader to digest infor- a capital “W” takes up the same space that the letters in all other litigation mation. The goal is to have about 50% as a lowercase “i.” Proportionally papers be no less than 10 points; CPLR text and 50% white space.15 4544 renders some contracts inadmis- To maximize white space: sible in evidence if the print is less than • Use 1.25-inch margins; “White space helps 8 points (or 5½ points for upper-case • Avoid long paragraphs; type); and CPLR 8019(e) provides that • Add headings and subheadings; readers focus papers filed with a county clerk for • Indent a full tab for each para- recording and indexing must contain graph; on the text.” print no less than 8 points. • Skip a space between paragraphs You’ve met the CPLR requirement whether you single-space or dou- spaced: Every letter is spaced accord- “if the x-height of the type is a mini- ble-space your text; ing to its proportion. For example, a mum of 45 percent of the specified • Add a line between sections; capital “W” takes up more space than point size.”11 The x-height is equal • Use bullet points and numbered a lowercase “i.” Examples: Garamond to the measure, in millimeters, of the lists; and Times New Roman. The differ- lowercase letters, without ascenders • Use left-justified (right-ragged) ence in type is noticeable in characters or descenders like the line topping margins; that are narrow in proportional fonts an “h” or the line bottoming a “p,” • Avoid block quotations and like f, i, j, l, r, t, commas, and periods. divided by .351. For example, if the lengthy footnotes or endnotes; Proportionally spaced type is easier lower-case letter “m” in the word and to read and occupies less horizontal “motion” measures two millimeters • Add a line before and after block space than monospaced types. Use and the lowercase letter “r” in the quotations and between footnotes monospaced type only when typing on word “regulation” also measures two and endnotes.16 a typewriter. millimeters, the measurement of the 4. Margins. In Word and 2. Type Size. Type size, like type- letters divided by .351 equals 5.698, WordPerfect, the margin default rule face, affects a document’s clarity and which satisfies CPLR 105(t): It’s great- is one inch on the top, bottom, right, readability. Type size, the height of er than 45% of the required font size and left, a vestige from monospaced an individual character, is measured of 10 points.12 typewriter fonts. Experts recommend in “points.” The most common type At least one expert recommends 1.25 inches, however, and some recom- size — 12-point type — is one-sixth using 13-point type size,13 but the mend even more for a 12-pont propor- of an inch high. A 72-point type size standard for federal appellate briefs tionally spaced font: “The smaller your equals a one-inch character height. is 14-point type.14 For the rules appli- font size, the larger your margins will Type size should never be smaller than cable to New York state courts and need to be, and vice versa.”17 Some 10-point type size or larger than 14 to federal courts in New York, see courts also require that margins exceed points. Large type sizes (16 points the next issue’s Legal Writer column: one inch. Read the court’s rules before and larger), like all-capital letters,10 “Document Design: Pretty in Print — filing any legal document. If a court decrease readability and look aggres- Part II” (May 2009). requires briefs to have at least one-inch sively artificial, as if you’re yelling at 3. White Space. The trend in court margins, you may increase the left- and the reader. Small typefaces (10 points rules is to move from page limits to ride-side margins beyond the one-inch or smaller) resemble fine print, dis- word limits. That trend encourages standard to maximize legibility and couraging readers from reading the legal writers to add plenty of white readability.18 The extra space will give text. space to enhance legibility.

54 | March/April 2009 | NYSBA Journal “Using different typefaces will make the the judges and their law clerks space on which to write notes. document like a ransom note.” If a court requires you to bind a document, add an extra half-inch to the gutter margins. A gutter margin Avoid using more than one text quotations, indent on the left-hand is the space created by the adjoining alignment on a page. It’s messy and margin and the right-hand margin; inside margins of two facing pages in a difficult to read.19 the indents should be equally sized, book or the space between columns on 6. Horizontal and Vertical Spacing. or double indented. Keep indents uni- a page. If a court requires you to print Horizontal spacing refers to the space form: If you use one-half inch indents on one side of the paper, add extra in the text before a sentence (called for paragraphs, use the same width space to the left side of the page. If a “indentations” or “indents”) and the throughout the text. court requires you print on both sides space between sentences. Vertical spac- Width, sometimes called the length of the paper, add extra space to the left ing refers to single- or double-spacing of text lines, also affects readability. margin. between lines of text. Our eyes naturally shift from one set 5. Alignment. Alignment refers All legal-writing and publishing of words to the next, pausing between to lining up text with a vertical line authorities recommend using one each set of words. This stop is called a on a page. Alignment falls into four space between words and one space “fixation pause.”23 Legibility decreases categories: right-aligned, left-aligned, after punctuation marks.20 when the width of a text line becomes center-aligned, and full justification. Most authorities recommend using small. A document that contains fewer Right-aligned text is set flush with the one space between sentences. As the fixation pauses allows greater reten- right-hand margin. Left-aligned text Seventh Circuit explains, “[p]ut only tion and comprehension.24 The opti- is set flush with the left-hand margin. one space after punctuation. The mal length of text lines depends on Centered text is set centered on the typewriter convention of two spaces the type size. For a 12-point type size, page. Fully justified text is lined up at is for monospaced type only. When line length should range from 2.75 to both the left and right sides. used with proportionally spaced type, 4 inches. Line length explains why Avoid fully justified formatting extra spaces lead to . . . wide, mean- block quotations are difficult to pro- in typed documents as opposed to dering areas of white space up and cess. Block quotations contain short- published documents. Full justifica- down a page [that] interfere with the ened text lines. They force readers to tion, especially with monospaced type, eyes’ movement from one word to the search for the next text line and cause leads to odd spacing between letters next.”21 the reader to tire.25 and words. The text in full justification Use your computer’s hard-space For office documents and letters, is forced to the left- and right-hand side function where you don’t want a line single-space between lines of text, but of the page. Full justification makes to break and separate citation symbols add a line (hard return or “enter”) letters appear stretched. The text will like the section symbol (§) or the para- after every paragraph. Single-spacing appear to slide down the page. Full graph symbol (¶). Use the hard-space is user-friendly. Single-spacing leads justification might also lead to riv- function before and between a series to shorter documents and thus looks ers of white space. A “river” refers to of ellipses. This will ensure that the more concise: A paragraph that could the white space between words that ellipses are spaced evenly. Incorrect: be the size of a page if double-spaced appear near each other on consecutive “The judge ordered her to...produce becomes half the size when single- lines of text. Rivers also occur when the documents.” Correct: “The judge spaced. Single-spacing also makes it the line length is too long or too short. ordered her to . . . produce the docu- easier for readers to see and read: The Legal writers, as opposed to pub- ments.” text jumps out at the reader. Double- lishers, should stick to left-aligned text; Indenting paragraphs, block quota- spacing makes reading difficult: it’s easiest to read. The uneven margin tions, and lists gives the text definition Readers have a hard time following the on the right-hand side, also known as a and makes it stand out. Most readers text. The structure of the text gets lost right-ragged effect, helps readers find prefer indented paragraphs. Indent the on the page. But many courts require the beginning of the next line. It helps first line of each paragraph. Although double-spacing between lines. See the readers keep on reading. the Seventh Circuit recommends short next issue’s Legal Writer column for Use center-aligned text for titles, indents,22 the Legal Writer recommends more on this topic. captions, headings, and page num- indenting paragraphs one full tab, or 7. Headings. Headings and sub- bers. one-half inch from the margin. A full headings are visually effective mecha- Legal writers rarely use flush-right tab is the default indent in Word and nisms that enable better recall of sub- text, although they may use it to set the WordPerfect, and a full tab increases stantive information. Headings group court name and case number on plead- white space. Don’t use the spacebar to related information. Readers are more ings and motions. create an indent; use a tab. For block likely to remember information sepa-

NYSBA Journal | March/April 2009 | 55 rated into parts, especially information tional advice as it is for its exceptional design — 11. CPLR 105(t); see Gouveneur Gardens Hous. Corp. offers another example. You’re hiring a lawyer. You v. Lee, 2 Misc. 3d 525, 526, 769 N.Y.S.2d 829, 830-831 contained in the heading itself. Create get three résumés, all with identical information. (Hous. Part Civ. Ct. N.Y. County 2003). persuasive and conclusory headings to Whom would you interview first? Butterick dryly 12. For more on this topic, see Glorius v. Siegel, 2004 make information sink in.26 notes that “Steven and Roscoe have a few things to N.Y. Slip Op. 51378(U), *2-3, 2004 WL 2609413, at *2, learn.” Headings and subheadings should 2004 N.Y. Misc. LEXIS 2195, at *2-3 (Hous. Part Civ. Ct. N.Y. County 2004). be the same size as the text. Headings 13. See Garner, supra note 9, Rule 4.5(a), at 79. may be set to a slightly larger size than the text — if the text is 12 points — but 14. Fed. R. App. P. 32(a)(5). should not exceed size 14-point font. 15. Raymond P. Ward, Writer’s Corner, Good Writing, Good Reading: Advice on Typography, [Jan. Use a different typeface to distinguish 2005] For the Defense 60, available at http://home. text from headings and subheadings, 5. Robbins, supra note 2, at 119–20. earthlink.net/~thelegalwriter/sitebuildercontent/ just as you’d do so, sparingly, on the 6. Ellen Lupton, Cold Eye, Print Mag. (Summer sitebuilderfiles/typography.pdf (last visited Jan. 29, 2009). cover page of a document: “The con- 2003), available at The Science of Typography http:// www.typotheque.com/articles/the_science_of_ 16. Some of these suggestions come from Morkan, trast between the serif and sans-serif typography (last visited Jan. 29, 2009). supra note 1, at, 31. typefaces should make the latter jump 7. Seventh Circuit, Requirements and Suggestions 17. Typography, supra note 4, at http://www. off the page.”27 for Typography in Briefs and Other Papers 5, typographyforlawyers.com/?p=944 (last visited Headings and subheadings may be http://www.ca7.uscourts.gov/rules/type.pdf (last Jan. 29, 2008). visited Jan. 29, 2009) (“Professional typographers 18. Robbins, supra note 2, at 124. formatted in bold to make the text avoid using Times New Roman for book-length (or stand out. Place headings in a hier- brief-length) documents. This face was designed for 19. Id. at 131. archy: Use boldface capital letters for newspapers, which are printed in narrow columns, 20. Garner, supra note 9, Rule 4.12, at 83. and has a small x-height in order to squeeze extra the main heading, boldface capitals characters into the narrow space.”) (hereinafter 21. Seventh Circuit, supra note 7, at 5. and lowercase letters for the next level, “Seventh Circuit”); Typography, supra note 4, at 22. Id. at 6 (“Indent the first line of each paragraph and boldface italics for subheadings.28 http://www.typographyforlawyers.com/?p=687 ¼ inch or less. Big indents disrupt the flow of (last visited Jan. 29, 2009) (“It bewilders me to visit text.”). Indent them the same width from the big law firms [that] clearly spent top dollar on their 23. Robbins, supra note 2, at 122. margin. Leave plenty of room for dot websites and their Aeron chairs but that still use leaders in the table of contents so that Times . . . .”); Raymond P. Ward, Writer’s Corner, 24. Id. Good Writing, Good Reading: Advice on Typography, 25. Id. at 123. the headings and subheadings don’t [Jan. 2005] For the Defense 60, available at http:// obscure the page numbers. Except for home.earthlink.net/~thelegalwriter/sitebuilder- 26. Id. at 125. main section headings, left justify all content/sitebuilderfiles/typography.pdf (last vis- 27. Raymond P. Ward, Writer’s Corner, The Right ited Jan. 29, 2009) (“While Times New Roman is Tool for the Job, [Winter 2008] Certworthy 16, 16, other headings. Single-space headings acceptable for most legal writing, it’s not the best available at http://raymondpward.typepad.com/ even if you double-space the docu- font you can use for briefs.”). newlegalwriter/typography_and_document_ ment. Insert an extra space in the text 8. Seventh Circuit, supra note 7, at 5. design (last visited Jan. 29, 2009); accord Morkan, supra note 1, at 29. Morkan calls this contrast before a main heading to help readers 9. Bryan A. Garner et al., The Redbook: A Manual on “emphasis” and “cueing,” a technique designed “to breathe before they read further. Legal Style Rule 4.4(b), at 79 (2d ed. 2006). get your reader’s attention and direct it to particular In the next issue, the Legal Writer 10. Seventh Circuit, supra note 7, at 6 (“Capitals points in your argument.” all are rectangular, so the reader can’t use shapes 28. Garner, supra note 9, Rule 4.20(f), at 87. will continue in Part II with more (including ascenders and descenders) as cues.”). document design. ■

1. Linda L. Morkan, Appellate Advocacy, The Gestalt of Brief Writing: Visual Rhetoric in the Appellate Brief [July 2008] For the Defense 27, 31, available at http://www.rc.com/publications/Morkan.pdf (last visited Jan. 29, 2009) (“Readers love visual aids. Love them to death, eat-them-up kind of love.”). 2. Ruth Anne Robbins, Painting with Print: Incorporating Concepts of Typographic and Layout Design into the Text of Legal Writing Documents, 2 J. Ass’n Legal Writing Directors 108, 112 (2004), available at http://www.ca7.uscourts.gov/Rules/ Painting_with_Print.pdf (last visited Jan. 29, 2009). 3. Wayne Schiess, Schiess’s Basic Document Design for Lawyers, http://www.utexas.edu/law/faculty/ wschiess/legalwriting/2008/07/schiesss-basic- document-design-for.html (last visited Jan. 29, 2009) (advising lawyers to do as the experts say “[u]nless required by rule or your boss”). 4. Matthew Butterick, Typography for Lawyers, http://www.typographyforlawyers.com/?p=106 (last visited Jan. 29, 2009) (hereinafter “Typography”). Butterick’s site — as noteworthy for its excep-

56 | March/April 2009 | NYSBA Journal LANGUAGE TIPS BY GERTRUDE BLOCK

uestion: What does the word someone who took advantage of every asked me to complain that their col- enormity mean? President opportunity to gain advancement, leagues use blatant when they mean QBarack Obama and other despite the harm to others. Now, being flagrant. Blatant means “obtrusive or knowledgeable persons use it to an opportunist is no longer a slur. brazen,” as in the phrase “a blatant mean “something very large or enor- News journalists apparently believe lie.” It can also refer to conspicuously mous.” In one speech, for example, that notorious and famous are synonyms, tasteless behavior, as in: “a blatant dis- the President said, “Despite the enor- which they may soon become unless play of wealth.” mity (my emphasis) of the task that lies educated speakers continue to recog- On the other hand, behavior that ahead, I stand here today as hopeful as nize that they are opposites. You are is outrageous and egregious is “fla- ever that the United States of America famous if you are the pilot who recent- grant.” The Latin root of flagrant means will endure – that it will prevail, that ly successfully landed a commercial “burning,” so the literal meaning of the dreams of our founders will live in passenger plane in the Hudson River, flagrante delicto is “while the crime was our time.” That sounds wonderful, if saving all the passengers and crew. But blazing,” that is, “in the act” (while enormity is the right word. Is it? the perpetrator of the Ponzi scheme is the crime was being committed). You Answer: No. Words often change not famous, he is notorious. probably know the term “flagrantly meaning over time, but enormity has The nice distinction between disin- against the evidence,” indicating that not. An enormity is “a great wicked- terested and uninterested has also van- a conclusion was so clearly reached ness, a monstrous or outrageous act, ished. You were once pleased if you against the weight of the evidence that or a very wicked crime.” To describe were dubbed “disinterested,” which it would shock the conscience of a rea- great size or magnitude, Mr. Obama traditionally has meant “unbiased” sonable person. should have chosen words like “vast- or “without prejudice.” Its look-alike When misused words might affect ness” or “immensity,” as in, “The larg- companion uninterested contained no a conclusion, the distinction in mean- est elephant was a beast of unusual such compliment; it meant “without ing is important. But some distinctions immensity.” interest,” a mere statement of fact. seem insignificant. For example, does Unfortunately, as two look-alike Now uninterested has almost disap- it matter whether we maintain the dif- words become popular, our language peared, and disinterested has taken on ference between loan and lend? Some tends to “level,” so nuances of mean- its meaning. Oliver Stone obviously readers think we should. That, and ing disappear, and distinctions are lost. did not intend a compliment when he other such distinctions, will be the Another word that has suffered that said of Sarah Palin: “She has a disin- subject of a forthcoming column. ■ loss is the adverb willfully. Obama terested, narrow-minded belief system described a bipartisan group as “will- and a jingoistic world view.” GERTRUDE BLOCK is lecturer emerita at the fully unbiased,” when he should have There is a small but important dif- University of Florida College of Law. She is the said willingly unbiased (or merely ference between the words incident and author of Effective Legal Writing (Foundation “unbiased).” incidence, which many people do not Press) and co-author of Judicial Opinion Writing The word willfully is quite different notice. Both nouns mean “occurrence (American Bar Association). Her most recent from willingly. Willingly means sim- or event,” but an incident refers to a book is Legal Writing Advice: Questions and Answers (W. S. Hein & Co., 2004). ply, “voluntarily or intentionally.” It definite and separate event, sometimes contains no pejorative slant. But will- causing a crisis (as in, “an international fully is pejorative, meaning “stubborn- incident”). On the other hand, incidence ly determined on having one’s own can refer to the extent or frequency way.” It appears in contexts like “She of an occurrence: “the incidence of MOVING? let us know. caused me harm by willfully deceiving malaria in tropical climates.” Notify OCA and NYSBA of any changes to me.” Legal dictionaries define will- The vice president for government your address or other record information as soon as possible! fully as implying pejorative intent. It is relations at a small college recently defined as “voluntarily and intention- demonstrated that she was unaware OCA Attorney Registration ally assisting or advising another to of that distinction when she said, “We PO BOX 2806, Church Street Station New York, New York 10008 disobey or disregard the law.” Another had not expected to find incidences of TEL 212.428.2800 / FAX 212.428.2804 valuable distinction will have been lost students already stopping and drop- Email [email protected] if willfully becomes synonymous with ping out, students who have had to “voluntarily.” change their educational plans because New York State Bar Association MIS Department The original meaning of some nouns of lack of credit.” One Elk Street, Albany, NY 12207 is virtually forgotten. Not too long ago, Do you know the difference between TEL 518.463.3200 / FAX 518.487.5579 being called an opportunist was dispar- the adjectives flagrant and blatant? Email [email protected] aging, for an opportunist described Lawyers who read this column have

NYSBA Journal | March/April 2009 | 57 NEW MEMBERS WELCOMED

FIRST DISTRICT Valentina Gavalya- James Mangan Michael Sanford Smith Erica M. Hines Joseph Albert Abadi Sandoval Natalia Martin Jennifer Hartman Songer Ryan V. Horstmyer Aditya Mahesh Ajwani Halie Francine Geller Lois W. Matelan Robert H. Soniker Joseph Hourigan Omar Ayman Al-hakim Christopher Emil John J.D. McFerrin- David William Sparrow Dan Li Melissa Anagnosti Giorgione Clancy Alexander Benjamin James E. Lonano Keren Azulay Christine Elizabeth Eric Craig Mendelson Spiro Robert F. Manfredo Scott A. Bank Gladchuk Mario Stewart Mendolaro Seth Steed Juan Augusto Martinez Chiann Bao Kimberly McLeod Jeffrey Giorgio Meriggi Simon Carl Steiner Elizabeth Navran Jennifer Dolle Barron Gladney Nancy J. Mertzel Kimberly Ruthsatz Hannah Rose Prall Gary Neal Baumwoll Bari Justin Goggins Rita Dudley Mitchell Stephens Krishna Stark Sameena Shaheen Moiz Jordan Rachel Goldberg David Yoshihiro Miyake William Edgar Molly J. Timko Beguwala Sarah Elizabeth Cristina Moldovan Stephenson Henrik Nils Westin Anna Maria Karla Belan Goodstine Jennifer D. Morton Jamie Ellis Sullivan FOURTH DISTRICT Ng Julie Lindsey Goran Joseph Peter Mouallem Woong Kyu Sung Jonathan Cohn Sarah Michelle Berger Leonard L. Gordon Sara Lynn Murphy Madeline Tarnofsky Matthew Nowak Rebecca Berk Ryan Douglas Gorsche Virginia Jackson Nimick Anita Thomas Pamela Perry Matthew Blake Berlin Omer Granit Christopher John Lee Ting Christopher C. Shambo Rajeev Bhavsar Patrick Thomas Callahan O’Rourke Amy Krista Todd Darren Joseph Bilotto Greeley Itay Offir Nina Ingwer Vanwormer FIFTH DISTRICT Sarah D. Blask Paul Bartholomew Green Chul Pak Irina Vasilchenko James Coulter Harberson Christopher Bouchoux Robin Tracyna-Rene Pascal Partouche Marina Vishnepolskaya Adam Patrick Tyksinski Tom Hinrich Green Robin Kaplan Pass Manoj Viswanathan Jason W. White Braegelmann Andrew W. Greig Vipul Manu Patel Khalilah Walters SIXTH DISTRICT Karen G. Brody John Gueli Jennifer Ann Patt Lei Wang Jennifer M. Donlan Bridget Elizabeth Brown Eun Hee Han Edgar Enrique Perez Benjamin Weathers- Kevin W. Lewis Julie Busch Peter Hanschke Olivares Lowin Daniel R. Norton Tamara Lynn Busch James Christensen Harris Rodrigo Peruyero Michael Emil Weinberg Richard Curtis Call Meredith Anne Hendrix Amanda Julia Perwin Edward J. Weiss SEVENTH DISTRICT Alexander William Carolina Henriquez Nathan M. Pierce Marie-Andree Weiss Robert William Barlett Cameron John Peter Hooper Jaclyn Courtney Platten Naaman Weiss Laura Anne Vanderbrook Robert Thomas Carey Emily McNally Horsfield Julian Mark Pritchard Alicia Hayley Welch EIGHTH DISTRICT Elvira Castillo Gregory David Hughes Harlan J. Protass Mark David Wessel Heather Larimer Jermak Sarah Tina Chadha Jason Robert Jahn Nikhil Dwivedi Pundit Bradley Mark West Margie Man Chee Chan Karen M. Jordan Elizabeth Allison Qually Christine Whang NINTH DISTRICT Stephen Cho Jennifer Juste Jennifer Lynn Rada Asha Shani White Josephine G. Bachmann Kuang-wei Chueh Jocelyn Dawn Kaufman April Rademacher Julie Elizabeth White Adrianne Fennell Valerie Cohen Lawanna Renae Kimbro Rebecca Ann Rasmussen Marc Wilkie Bonifacio Jason Miller Cover Robert Matthew Kirby Lawrence Andrew Elizabeth Poppe Williams Aaron Cohen Marianne David Sarah Kirby Reicher Jared Ian Wilner John J. Connolly Linda C. Davidoff Wu-kwan Kit Rebecca Rose Rendell Brian Wolfe Beth Margolis Davis Kasara E. Davidson Kimberly Ann Korn Michael D. Rips Richard J. Wright David A. Englander Roger M. Deitz Evan M. Koster Declan John Roche Evan Daniel Yagerman Wayne D. Esannason Priscilla Djirackor Simon Philip Kyriakides Evan Mitchell Rosing Kelly Yona Marianne Fogarty Patrick Francis Doherty Oksana Kyrychenko Janet Denise Rosso Yeo Young Yoon William E. Griffin Victoria Dorfman Christopher William Nicole W. Russell Drew Mackenzie Young Alicia Frances Harpur Amy J. Doshi Laforgia Kathryn Filkins Russo Tracey Xi Zheng Grace Lee David Wayne Dulabon Dario Laguado Sarah Elizabeth Ryan Joseph D. Madden SECOND DISTRICT Adam Ahmed Eltoukhy Rachelle Leone Laroche Jeannette Safi Kyle Charles McGovern Julie Avdeeva Megan Green Englander Scott Matthew Larson Makoto Saito Sara Miro Stephanie Bond Cone Alison Leigh Epilone Jamie Lauren Lavin Arianna Magdalena Carol B. Pauli David Richard Goldberg Lindsay Mary Faine Linda Mary Lecomte Sanchez-Galindo Vincenc Lloyd Pearson Kimberly J. Hertz Nicholas David Feinberg Diana J. Lee Parama Saovabha Clyde M. Schaefer Suyeon Kim Ariella Maya Feingold Jorge Lembeye Emily Bette Scharfman Suzanne Elizabeth Volpe Melanie A. Kollander Meghan Cartier Fennelly Lynde Faun Lintemuth Shiou-huei Sender Siobhan Ellen McGreal TENTH DISTRICT Danielle Eva Finkelstein Simon Jonathan Little Samira Sanjay Shah Keegan K. Staker Kamran Albert Rebecca Grace Fischer William Liu Andrew Shapiro Michael Tsugel Alagheband Pietro Fontana Justin Mitchell Logan Jessica Kristen Shook Choya D’angelo Jessica Baquet Alice L. Fontier Constance Yit Chen Low Jared Evan Shure Washington Sharon Maureen Evans Vanessa Alessandra Michael J. Macaluso Taryn Ashley Singer Evan J. Zucker Neetu Kapoor Forcina Corina Naome Maccarin Jessica June Sleater Elizabeth Leigh Knapp Yonatan-yoni Frider Lauren Paige Malan Eric Sloan THIRD DISTRICT Alan Landa Ron Etai Garber Chaya Mayim Mordecai Benjamin Stuart L. Borrero Alexander Lopez Joi Lynne Garner Mandelbaum Slomich Lindsay N. Browning Sheryl-Anne Sastow Matteo Gatti L. Price Manford Derek T. Smith Katherine L. Hentnik

58 | March/April 2009 | NYSBA Journal ELEVENTH DISTRICT Rebecca A. Hand Valery Eduardovich Elaine Yialing Wang Yue Yang Nestor H. Diaz Anna M. Harrington Vanin Meng-ju Wang Fredrick A. Yonkman Robin Stone Einbinder Emma Tara Hasson Ryan William Velo- Alastair Watt Hyo-Yeon Yoon Julia H. Klein Diane Hein Simpson Michael Edward Williams Haihang Zhang Gloria Tam Dac Lam Heiko Heppner Ansuya Vezendy Roderick D. Woods Yuan Yuan Zheng Seong Kyun Sheen Amy Lynne Hill Daymien Thomas Jennifer Marie Hill Villasenor-Grant Satoshi Hirota Hao-jui Hu In Memoriam TWELFTH DISTRICT Ingrid Hung Rebecca Biney Amissah Robert J. Kajubi John C. Barney Paul S. Hoffman Charles Michael Barbuti Nikki Kalbing Ithaca, NY Croton On Hudson, NY Luis Rafael Burgos Gerard Hugh Kelly Jasmine N. Colon Susan Barry Edward J. Lee Brian Austin Kenny Jessica Kimberly Cooke San Buenaventura, CA Norwich, NY David R. Keyes William J. Greene Michael Phillip Kirkman Robert H. Basso Edward Joseph Orlando Maritza M. Maria Kokiasmenos Syracuse, NY Rochester, NY McConneghey Su Jin Kong Yale H. Gellman Byron R. Prusky Darrell R. Mitchiner Jonathan Kooker Philadelphia, PA Media, PA OUT OF STATE Donald L. Korb Leonard M. Goldberg Paul J. Sternberg Erik Salbu Aasland Sergey N. Kotelnikov West Orange, NJ Binghamton, NY Erika K. Anderson Kristine Elizabeth Kruger Ahmed Arif Sang-Yeop Kuo Donald H. Greener Jack Vinik Robert P. Arter Jennifer Emma Landau New York, NY Delray Beach, FL Scott T. Baker Eduardo Campos Lasmar Raymond B. Grunewald Jan Walker Martin Stuart Bancroft Barry L. Levine Greenvale, NY Jamestown, NY Jaspreet Kaur Bansal Jennifer L. Lewis Magnolia Indira Bautista Xi Lin Danielle Rae Guistina Denise Marla Berlin Victoria Nara Henrietta, NY Valence Borgia Manoushagian Thomas W. Boyce Justine Mikhaela Martin Matthew Eric Braffman Sean A. Maxwell Richard Brown Abdolreza Mazaheri Gwendolyn Eleanor Biliana Alex Oreshkova Foundation Memorials Carroll Masato Oshikubo Ashlee K. Cartwright Adam J. Osterweil fitting and lasting tribute to a deceased lawyer can be made Songhee Cha Pei Yu Pao through a memorial contribution to The New York Bar Sherna J. Channer Richard Pinal A Jie Chen Ganna Poyznyer Foundation. This highly appropriate and meaningful gesture on the Sunghyuk Choi Ulrich Michael Puerer part of friends and associates will be felt and appreciated by the family Hyun Chul Choo Jessica L. Purcell of the deceased. Judy Pak Chung Christian Marc Rieder Santiago Corcuera Diego Sebastian Rios Contributions may be made to The New York Bar Arisa Y. Cox Matthew Phillip Rocco Foundation, One Elk Street, Albany, New York 12207, stat- Shawn Davis Lucas Rogers ing in whose memory it is made. An officer of the Foundation Vittoria Frua De Angeli Kamil Sepelak will notify the family that a contribution has been made and Thomas P. De Jong Shitul M. Shah by whom, although the amount of the contribution will not be speci- Christopher John Deal Alexander Elliot Slater fied. Dina Di Maio Emily Sarah Smith Jessica Dillon Yuko Sone All lawyers in whose name contri butions are made will be listed Matthew N. Drossos Sirikarn Sornsin in a Foundation Memorial Book maintained at the New York State William M. Duskas Harrold St. Juste Bar Center in Albany. In addition, the names of deceased members in Geoffrey J.R. Dyer Dennis Stefanitsis Anacarolina Estaba Prakash Subbiah whose memory bequests or contributions in the sum of $1,000 or more Fang Fang Michiro Suenaga are made will be permanently inscribed on a bronze plaque mounted Omar Mohamed Nour Geoff Susso in the Memorial Hall facing the handsome courtyard at the Bar Center. Farahat Anna Suzuki William John Fitzpatrick Hilarie Lynne Thomas Patrick A. Fuller Jason A. Thomas Peter Anthony Gallo Jesika Brooke Thompson Christopher M. Graham Tara Tighe Nirvaan K. Gupta William A. Tillner Murat Metin Hakki Wylie Duffy Van Ness Cristen Mathews Hall

NYSBA Journal | March/April 2009 | 59 CLASSIFIED NOTICES

RESPOND TO NOTICES AT: OFFICE SPACE AVAILABLE VISITING PROFESSORSHIPS New York State Bar Association Instant Office Space: NY or Newark IN EAST EUROPE One Elk Street Plug and Play space for lawyers and Short-term pro bono teaching Albany, NY 12207 other professionals at the historic appointments for lawyers with 20+ Attn: Daniel McMahon National Newark Building and/or in years’ experience Eastern Europe and DEADLINE FOR SUBMISSIONS: Tribeca at 305 Broadway, NY; varying Six weeks prior to the first day former Soviet Republics. of the month of publication. sized offices; spacious workstations; See www.cils3.net. Contact CILS, POB NONMEMBERS: dual NJ and NY presence; reception, 19, Salzburg 5033, Austria, email $175 for 50 words or less; multi-line phones, t-1 internet, Video [email protected], US fax 1 509 plus $1 for each additional word. Conferencing, custom voicemail; 3560077.

Boxholder No. assigned— discounted Westlaw rates; virtual

$75 per insertion.

Find us on offices, too; flexible terms; ideal for F

MEMBERS: “war room” HQ in Newark and NY; Find us on

the Web! $135 for 50 words and $1 for office facilities in NJ available for as t each additional word. the Web! Payment must accompany little as $450/mo, NY for as little as insertion orders. $500/mo and virtual offices for as SEND ADS WITH PAYMENT TO: little as $300/mo. www.lawsuites.net Just a click away: Network Media Partners 646-996-6675 The NYSBA Journal is available to you Executive Plaza 1, Suite 900 [brokers protected] anytime at all. 11350 McCormick Road Log in as a member: Hunt Valley, MD 21031 POSITION WANTED: Membership gives you access to current (410) 584-1960 issues and the Journal archive on HeinOnline. [email protected] ASSOCIATE ATTORNEY The archive offers the Journal in a word- Attorney licensed in multiple states searchable format, beginning with the first with significant experience in issue in 1928. INCORPORATION SERVICES general civil practice, insurance Find an article: defense and criminal defense is Our word-searchable index lists all Journal Add business formation services to seeking to relocate to the CT/NY/ articles from 2000-present. your practice without adding demands NJ area for a position with a small Let us know: on your resources. to medium-sized firm. Has exten- Comment on any article you’ve read, top- sive trial experience. Please call ics you’d like addressed or the issues facing Help clients incorporate or form limit- today’s practitioners through the editor’s blog. ed liability companies with America’s (504) 920-3357. leading provider of business forma- The Journal at www.nysba.org/barjournal. tion services. We can also assist in INDEX TO out-of-state qualifications. ADVERTISERS The Editor’s blog at http://nysbar.com/blogs/barjournal/. Call us today at 800-637-4898 or visit ABA/State Street Bank & Trust 13 Click on “comments.” www.incorporate.com to learn more. Amicus Attorney 19 Bertholon-Rowland Corp. 4 LAW BOOKS Center for International MEMBERSHIP TOTALS The Lawbook Exchange, Ltd. buys, Legal Studies 60 sells and appraises all major lawbook International Genealogical Search 25 NEW REGULAR MEMBERS sets. Also antiquarian, scholarly. 1/1/09 - 2/3/09 ______418 Reprints of legal classics. Catalogues The Jewish Guild for the Blind 31 issued in print and online. Mastercard, Law Book Exchange, Ltd. 60 NEW LAW STUDENT MEMBERS Visa and AmEx. LAWSUITES.net 60 1/1/09 - 2/3/09 ______127

(800) 422-6686; Fax: (732) 382-1887; LexisNexis 14, 15, 17, TOTAL REGULAR MEMBERS 21 www.lawbookexchange.com. AS OF 2/3/09 ______73,475 SpeakWrite 29 The Company Corporation 60 TOTAL LAW STUDENT MEMBERS PS Finance cover 2 AS OF 2/3/09 ______3,545 West, a Thomson Reuters TOTAL MEMBERSHIP AS OF Business cover 4 2/3/09 ______77,020

60 | March/April 2009 | NYSBA Journal Make the Most of www.nysba.org with personalized content on My NYSBA

CLE Credit Tracker Personal Contact Profile Keep track of your credits earned Events of Interest and credits needed. Completed Personalize your NYSBA experi- NYSBA CLE programs automatically ence and update your Contact See only the events related to show on your personalized tracker. Information including your user- your section memberships and name and password, areas of practice. as well as your Attorney, Practice Area and Opt-In Information.

The My NYSBA page offers you a personalized alternative home page for www.nysba.org. When you click My NYSBA you will see just the information you have requested, customized to your areas of practice and personalized based on your choices.

Login now and start getting the most out of www.nysba.org right away! HEADQUARTERS STAFF EMAIL ADDRESSES THE NEW YORK BAR FOUNDATION

EXECUTIVE PRO BONO AFFAIRS 2008-2009 OFFICERS Patricia K. Bucklin Gloria Herron Arthur, Director John R. Horan, President Executive Director [email protected] 825 Third Avenue, New York, NY 10022 [email protected] M. Catherine Richardson, Vice President MARKETING AND Keith J. Soressi One Lincoln Center, Syracuse, NY 13203 INFORMATION SERVICES Associate Executive Director Patricia K. Bucklin, Secretary Richard J. Martin, Senior Director [email protected] One Elk Street, Albany, NY 12207 [email protected] BAR SERVICES Paul Michael Hassett, Treasurer DESKTOP PUBLISHING Frank J. Ciervo, Director 1500 Liberty Building, Buffalo, NY 14202 ARKETING [email protected] M Cristine Cioffi, Assistant Secretary 2310 Nott Street East, Niskayuna, NY 12309 MEETINGS MIS Kathleen M. Heider, Director John M. Nicoletta, Director DIRECTORS [email protected] [email protected] James B. Ayers, Albany Jeffrey Ordon, Network Support Specialist Vice Chair of The Fellows CONTINUING LEGAL EDUCATION [email protected] Terry J. Brooks, Senior Director Jonathan G. Blattmachr, New York Sonja Tompkins, Records Supervisor [email protected] Charles E. Dorkey, III, New York [email protected] Garden City Debra York, Registrar Emily F. Franchina, Lucian Uveges, Database Administrator [email protected] Sharon Stern Gerstman, Buffalo [email protected] John H. Gross, Hauppauge CLE PROGRAMS Paul Wos, Data Systems and Gregory J. Guercio, Farmingdale Jean E. Nelson II, Associate Director Telecommunications Manager Robert L. Haig, New York [email protected] [email protected] Frank M. Headley, Jr., Scarsdale Kimberly Hojohn, CLE Program Coordinator WEB SITE Barry Kamins, Brooklyn [email protected] Barbara Beauchamp, Editor John J. Kenney, New York Katherine Suchocki, Staff Attorney [email protected] Henry L. King, New York [email protected] Glenn Lau-Kee, New York Cindy O’Brien, Program Manager MEMBERSHIP SERVICES A. Thomas Levin, Garden City [email protected] Patricia K. Wood, Senior Director Kay Crawford Murray, New York [email protected] Carla M. Palumbo, Rochester CLE PUBLICATIONS Megan O’Toole, Membership Services Manager Sharon M. Porcellio, Rochester Daniel J. McMahon, Director [email protected] [email protected] Richard Raysman, New York Thomas O. Rice, Garden City Kirsten Downer, Research Attorney CHIEF SECTION LIAISON Lesley Friedman Rosenthal, New York [email protected] Lisa J. Bataille [email protected] Sanford J. Schlesinger, New York Patricia B. Stockli, Research Attorney Justin L. Vigdor, Rochester [email protected] PRINT AND FACILITIES OPERATIONS Lucia B. Whisenand, Syracuse Mark Wilson, Publication Manager Roger E. Buchanan, Senior Director [email protected] [email protected] EX OFFICIO Susan B. Lindenauer, New York BUILDING MAINTENANCE LAW PRACTICE MANAGEMENT Chair of The Fellows Pamela McDevitt, Director GRAPHICS [email protected] PRINT SHOP JOURNAL BOARD FINANCE AND HUMAN RESOURCES Matthew Burkhard, Production Manager Paula M. Doyle, Senior Director [email protected] MEMBERS EMERITI [email protected] PUBLIC AFFAIRS AND As a tribute to their outstanding service to FINANCE ADMINISTRATIVE SERVICES our Journal, we list here the names of each Kristin M. O’Brien, Director Sebrina Barrett, Senior Director living editor emeritus of our Journal’s Board. [email protected] [email protected] HOWARD ANGIONE LAW, YOUTH AND CITIZENSHIP PROGRAM Cynthia Gaynor, Controller Immediate Past Editor-in-Chief [email protected] Eileen Gerrish, Director ROSE MARY BAILLY [email protected] RICHARD J. BARTLETT LEGAL AND GOVERNMENTAL AFFAIRS MEDIA SERVICES AND PUBLIC AFFAIRS COLEMAN BURKE Kathleen R. Mulligan-Baxter, Senior Director Nicholas Parrella, Media Services Manager JOHN C. CLARK, III [email protected] [email protected] ANGELO T. COMETA COUNSEL’S OFFICE ROGER C. CRAMTON Patricia Sears Doherty, Editor, State Bar News LOUIS P. D ILORENZO GOVERNMENTAL RELATIONS [email protected] MARYANN SACCOMANDO FREEDMAN Ronald F. Kennedy, Director Brandon Vogel, Media Writer EMLYN I. GRIFFITH [email protected] [email protected] H. GLEN HALL Kevin M. Kerwin, Assistant Director PAUL S. HOFFMAN [email protected] CHARLES F. KRAUSE PHILIP H. MAGNER, JR. HE EW ORK AR OUNDATION LAWYER ASSISTANCE PROGRAM T N Y B F WALLACE J. MCDONALD Patricia F. Spataro, Director Rosanne M. Van Heertum J. EDWARD MEYER, III [email protected] Director of Development KENNETH P. N OLAN [email protected] EUGENE E. PECKHAM LAWYER REFERRAL AND ALBERT M. ROSENBLATT INFORMATION SERVICE LESLEY FRIEDMAN ROSENTHAL Eva Valentin-Espinal, Coordinator SANFORD J. SCHLESINGER [email protected] ROBERT J. SMITH LAWRENCE E. WALSH RICHARD N. WINFIELD

62 | March/April 2009 | NYSBA Journal 2008-2009 OFFICERS MEMBERS OF THE HOUSE OF DELEGATES

BERNICE K. LEBER FIRST DISTRICT Cohn, Steven D. Chapman, Richard N. Aaron, Stewart D. Golinski, Paul A. Convissar, Robert N. President Abernethy, Samuel F. Hernandez, David J. Doyle, Vincent E., III New York Abramowitz, Alton L. Kamins, Hon. Barry Edmunds, David L., Jr. †* Alcott, Mark H. Romero, Manuel A. Fisher, Cheryl Smith MICHAEL E. GETNICK Alden, Steven M. Sunshine, Hon. Jeffrey S. * Freedman, Maryann Saccomando Anello, Robert J. Sunshine, Hon. Nancy T. * Hassett, Paul Michael President-Elect Armas, Oliver J. Szochet, Diana J. Lamantia, Stephen R. Utica Badner, Lisa Ray THIRD DISTRICT Manias, Giles P. Badway, Ernest Edward Breen, Michael L. McCarthy, Joseph V. C. BRUCE LAWRENCE Baum, Simeon H. Casserly, Timothy E. Meyer, Harry G. Secretary Berke-Weiss, Laurie Costello, Bartley J., III O’Donnell, Thomas M. Blanchard, Kimberly S. DeFio Kean, Elena O’Reilly, Patrick C. Rochester Borsody, Robert P. Doherty, Glen P. Porcellio, Sharon M. Brown Spitzmueller, Janiece Farley, Susan E. Rankin, Richard Thomas SEYMOUR W. JAMES, JR. Brown, Peter Fernandez, Hermes Sconiers, Hon. Rose H. Treasurer Burns, Howard W., Jr. Greenthal, John L. Subjack, James P. New York Chang, Vincent Ted Higgins, John Eric Young, Oliver C. Chin, Sylvia Fung Higgins, Patrick J. NINTH DISTRICT Christian, Catherine A. Kretser, Hon. Rachel Amoruso, Michael J. KATHRYN GRANT MADIGAN Cohen, Carrie H. Lally, Sean P. Burke, Patrick T. Immediate Past President Collazo, Ernest J. Liebman, Bennett M. Burns, Stephanie L. Binghamton * Cometa, Angelo T. Meislahn, Harry P. Byrne, Robert Lantry Crespo, Louis Miranda, David P. Campanaro, Patricia L. Davis, Tracee E. Moy, Lillian M. Cusano, Gary A. Draper, Thomas G., Jr. Nachimson, Steven G. Dohn, Robert P. VICE-PRESIDENTS Drayton, Joseph Michael Netter, Miriam M. Fontana, Lucille A. Eppler, Klaus Pechenik, Stephen A. Goldenberg, Ira S. FIRST DISTRICT Finerty, Hon. Margaret J. Powers, John K. Gordon Oliver, Arlene Antoinette * Forger, Alexander D. Privitera, John J. Gouz, Ronnie P. Claire P. Gutekunst, New York † Fox, Michael L. Roberts-Ryba, Christina L. Kranis, Michael D. Susan B. Lindenauer, New York Freidman, Gary B. Salkin, Prof. Patricia E. Lagonia, Salvatore A. Gallagher, Patrick C. Schneider, Eric Markhoff, Michael Gesinsky, Loren ECOND ISTRICT Schofield, Robert T., IV Marwell, John S. S D * Gillespie, S. Hazard * Yanas, John J. Miklitsch, Catherine M. Goldberg, Evan M. Barry Kamins, Brooklyn FOURTH DISTRICT * Miller, Henry G. Gredd, Helen A. Breedlove, Brian H. * Ostertag, Robert L. Gutekunst, Claire P. THIRD DISTRICT Burke, J. David Selinger, John Haig, Robert L. Coffey, Peter V. †* Standard, Kenneth G. Hon. Rachel Kretser, Albany Hariton, David P. Cullum, James E. Strauss, Barbara J. Hawkins, Dennis R. Ferradino, Stephanie W. Thornhill, Herbert L., Jr. FOURTH DISTRICT Hayden, Hon. Douglas J. Haelen, Joanne B. Van Scoyoc, Carol L. Hollyer, A. Rene Lais, Kara I. Wallach, Sherry Levin Patricia L. R. Rodriguez, Schenectady Hynes, Patricia M. Rider, Mark M. Welby, Thomas H. James, Hon. Debra A. Rodriguez, Patricia L. R. Wilson, Leroy, Jr. Kennedy, Henry J. FIFTH DISTRICT Stanclift, Tucker C. TENTH DISTRICT Kera, Martin S. Sterrett, Grace David M. Hayes, Syracuse * King, Henry L. Asarch, Hon. Joel K. Kobak, James B., Jr. FIFTH DISTRICT Austin, Hon. Leonard B. Block, Justin M. SIXTH DISTRICT Kougasian, Peter M. Fennell, Timothy J. †* Krane, Steven C. Gall, Erin P. * Bracken, John P. David A. Tyler, Ithaca Larson, Wallace L., Jr. † Getnick, Michael E. Buonora, John L. Lau-Kee, Glenn Gigliotti, Louis P. Cartright, Valerie M. SEVENTH DISTRICT † Leber, Bernice K. Gingold, Neil M. Chase, Dennis R. Leo, Robert J. Greeley, Kristin B. Clarke, Lance D. David M. Schraver, Rochester Lesk, Ann B. Hartnett, Elizabeth A. Cooper, Ilene S. Lindenauer, Susan B. Hayes, David M. Fishberg, Gerard EIGHTH DISTRICT * MacCrate, Robert Howe, David S. Franchina, Emily F. Larose, Stuart J. Gann, Marc David L. Edmunds, Jr., Buffalo Martin, Edwina Frances Masley, Hon. Andrea Longstreet, Ami S. Good, Douglas J. McEnroe, Diane Crosson Ludington, Hon. Spencer J. Gross, John H. NINTH DISTRICT Miller, Michael Mitchell, Richard C. †* Levin, A. Thomas John S. Marwell, Mount Kisco Millett, Eileen D. Pellow, David M. Levy, Peter H. Morgan, Hadaryah Tebach Peterson, Margaret Murphy Luskin, Andrew J. †* Richardson, M. Catherine Mihalick, Andrew J. TENTH DISTRICT Morril, Mark C. Morton, Margaret S. Stanislaus-Fung, Karen * Pruzansky, Joshua M. John H. Gross, Hauppauge Myers, Thomas Virkler, Timothy L. Purcell, A. Craig Nathanson, Malvina SIXTH DISTRICT * Rice, Thomas O. Robinson, Derrick J. ELEVENTH DISTRICT O’Neill, Paul J., Jr. Cummings, Patricia A. * Patterson, Hon. Robert P., Jr. Denton, Christopher Steinberg, Harriette M. David Louis Cohen, Kew Gardens Plevan, Bettina B. Egan, Shirley K. Stempel, Vincent F., Jr. Prowda, Judith B. Fortino, Philip G. Walsh, Owen B. Winkler, James R. TWELFTH DISTRICT Reed, Thomas A. Gorgos, Mark S. Reimer, Norman L. Lewis, Richard C. ELEVENTH DISTRICT Lawrence R. Bailey, Jr., Bronx Robertson, Edwin David †* Madigan, Kathryn Grant Cohen, David Louis Rosenthal, Lesley Friedman May, Michael R. Dietz, John R. Rosner, Seth Sheehan, Dennis P. Gutierrez, Richard M. MEMBERS-AT-LARGE OF THE Rothstein, Alan Tyler, David A. James, Seymour W., Jr. Russell, William T., Jr. SEVENTH DISTRICT Lomuscio, Catherine EXECUTIVE COMMITTEE Safer, Jay G. Brown, T. Andrew Lonuzzi, John A. Sen, Diana Sagorika Buholtz, Eileen E. Nizin, Leslie S. Vincent E. Doyle, III * Seymour, Whitney North, Jr. Burke, Philip L. Terranova, Arthur N. Timothy J. Fennell Sherwin, Peter J.W. †* Buzard, A. Vincent Vitacco, Guy R., Jr. Sigmond, Carol Ann Castellano, June M. Wimpfheimer, Steven Hermes Fernandez Silkenat, James R. Gould, Wendy L. TWELFTH DISTRICT Smith, Hon. George Bundy Harren, Michael T. Bailey, Lawrence R., Jr. Eileen D. Millett Spelfogel, Evan J. Kukuvka, Cynthia M. * Pfeifer, Maxwell S. David P. Miranda Spiro, Edward M. Kurland, Harold A. Quaranta, Hon. Kevin J. Tesser, Lewis Lawrence, C. Bruce Sands, Jonathan D. Peter J.W. Sherwin Wachtler, Lauren J. Lightsey, Mary W. Schwartz, Roy J. Lauren J. Wachtler Williams, Bryan R. * Moore, James C. Summer, Robert S. Yates, Hon. James A. * Palermo, Anthony R. Weinberger, Richard Stephen P. Younger Yavinsky, Michael J. Schraver, David M. OUT-OF-STATE Younger, Stephen P. Smith, Thomas G. Bartlett, Linda G. Zulack, John F. Tilton, Samuel O. Brown, Geraldine Reed SECOND DISTRICT * Vigdor, Justin L. Cahn, Jeffrey Barton Adler, Roger B. * Witmer, G. Robert, Jr. Elder-Howell, Andrea M. Bonina, Andrea E. EIGHTH DISTRICT * Fales, Haliburton, II Branda, RoseAnn C. Brady, Thomas C. * Walsh, Lawrence E. † Delegate to American Bar Association House of Delegates * Past President

NYSBA Journal | March/April 2009 | 63 THE LEGAL WRITER BY GERALD LEBOVITS GERALD LEBOVITS is a judge at the New York City Civil Court, Housing Part, in Manhattan and an adjunct professor at St. John’s University School of Law. For their research help on Parts I and II of this column, he thanks Alexandra Standish, his court attorney, and law students Jamie Bunyan (St. John’s University) and Suzy-Anne Bouveret (University of Ottawa, Civil Law Section). Judge Lebovits’s e-mail address is [email protected].

Document Design: Pretty in Print — Part I

ow a document looks is as attention by delivery speed, delivery Courier New, Garamond, and Times important as what it says. volume, making eye contact, gestur- New Roman. HDocument design isn’t only ing, and extemporizing, all without Although “[s]cience leaves the about including visuals — charts, dia- shouting or banging on the table. As designer more or less at sea in terms grams, exhibits, graphics, maps, pho- one design expert explains, “You do of font choice,”6 most experts reject tographs, and the like — an aid all this because you don’t merely want to Times New Roman, the default font readers appreciate.1 Document design, be heard — you want to persuade. The in Word and WordPerfect.7 Here’s the or typography, refers to the visual text matters, but so does the presenta- classic Seventh Circuit advice: “Use component of a word: typeface, type tion.”4 typefaces . . . designed for books. Both size, white space, margins, alignment, 1. Typeface. Readers appreciate the Supreme Court and the Solicitor horizontal and vertical spacing, head- nice-looking, readable documents. The General use Century. . . . [F]aces in the ings, footnotes, endnotes, superscript, more readable the document, the more Bookman and Century families are straight and curly quotes, boldface, the reader will understand and recall preferable to faces in the Garamond italics, and underlining. its substance. The goal of document and Times families.”8 Design has pragmatic and aesthetic design is to maximize legibility. functions. Sometimes what’s pretty Typeface — called “fonts” on com- isn’t pragmatic. Because typography puters — are grouped based on visual “Legal writers affects legibility and readability,2 law- characteristics. Typefaces fall into three yers must, when in doubt, prefer leg- categories: decorative, serif, and sans should stick ible to beautiful and, then, comply- serif. Decorative typefaces resemble ing with rules to legibility. For court handwriting or calligraphy. They’re to left-aligned documents, always tailor them to the inappropriate in legal documents. Use court’s rules. Court rules might be decorative typefaces for informal writ- (right-ragged) different from what the legal-writing ing like advertisements, e-mails, logos, text.” typographers recommend. For internal or personal invitations. Examples of office documents, always tailor them decorative typefaces: Algerian, Comic to your firm’s preference.3 When office Sans, Lucida Calligraphy, and Old Unlike a decorative or serif type- preferences or court rules don’t conflict English. face, the sans-serif typeface — “sans” with what the typographers suggest, Legal writers should format doc- means “without” in French — has no trust the typographers. uments using a serif typeface, the decorative finishing strokes. Sans serif Without effective, legible typogra- most legible kind. Serif typefaces are typefaces are difficult to read in long phy, the reader won’t appreciate a characterized by decorative or finish- passages. Use sans serif typefaces for document’s content. When you have ing strokes, also known as “feet” or emphasis, headings, short passages, or a choice, make the document acces- “wings,” added to the bottom of each single lines of text. Examples of sans sible, comprehensible, persuasive, and character. The feet or wings are most serif typefaces: Arial, Helvetica, Gill professional. noticeable on the letters “m” and “n.” Sans, and Univers. Persuasion isn’t only about sub- The decorative lines on a serif typeface Except for the cover page and to stance. How a lawyer speaks in court guide the reader’s eyes from one stroke contrast headings from text (see below), affects whether the lawyer will per- to the next.5 Because serif typefaces don’t mix typefaces in a document; use suade. Will the lawyer read from a make documents more readable, writ- only one typeface. To make stylistic brief monotonously? Not if the lawyer ers use these typefaces in legal docu- changes, choose roman, italic, or bold wants to persuade. To persuade, the ments, books, magazines, and news- styles. Different typefaces will confuse lawyer will engage the judge and grab papers. Examples of serif typefaces: CONTINUED ON PAGE 54

64 | March/April 2009 | NYSBA Journal From the NYSBA Book Store

TThehe PPlaintiff’slaintiff’s PPersonalersonal IInjurynjury AActionction IInn NNewew YYorkork SStatetate

EDITOR-IN-CHIEF Patrick J. Higgins Powers & Santola, LLP

The New York State Bar Association has created the most up-to-date, focused and comprehensive review of the plaintiff’s personal injury practice in New York.

This treatise answers the tough questions faced by the plaintiff’s personal injury attorney every day – liens, special needs trusts, structures, Medicare and Medicaid, conflicts of interest, workers’ compensation, no-fault, bankruptcy, representing a party in infancy, incompetency, PRODUCT INFO AND PRICES and wrongful death. 2009 / 1,734 pp., looseleaf, two volumes New York’s most experienced personal injury PN: 4181 lawyers, and nationally recognized experts, teach NYSBA Members $175 cutting-edge skills for the practicing trial lawyer, Non-members $225 while also laying out the most current substantive ** Free shipping and handling within the continental U.S. The cost for shipping and handling law – from medical malpractice to mass torts. outside the continental U.S. will be added to your order. Prices do not include applicable sales tax. Get the Information Edge NEW YORK STATE BAR ASSOCIATION 1.800.582.2452 www.nysba.org/pubs Mention Code: PUB0462 Periodicals

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