NOVEMBER/DECEMBER 2007 VOL. 79 | NO. 9 JournalNEW YORK STATE BAR ASSOCIATION
““AA JJustust CCauseause fforor WWar”ar”
How slave transit in an abolitionist state Also in this Issue sparked New York’s Dred Scott decision. Tax Deduction of Settlements by William H. Manz Lessons from the Smithsonian As a Client Faces Loan Default Did the Appellate Odds Change in 2006? “My passions are contribution to the community and continued learning, and I believe that bar association participation is essential to both. NYSBA is where I can get together with lawyers from all over New York and make a difference.”
Glenn Lau-Kee Member Since 1999
Renew today for 2008. www.nysba.org/renew2008 Thank you for your membership support. BESTSELLERS FROM THE NYSBA BOOKSTORE
November/December 2007
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Prices do not include applicable sales tax. Expand your professional knowledge NEW YORK STATE BAR ASSOCIATION 1.800.582.2452 www.nysba.org/pubs Mention Code: PUB0144 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 Lesley Friedman Rosenthal New York City Judith S. Kaye New York City Eileen D. Millett New York City Thomas E. Myers Syracuse John B. Nesbitt Lyons Eugene E. Peckham Binghamton Gary D. Spivey Albany EDITOR EMERITUS Eugene C. Gerhart Binghamton MANAGING EDITOR Daniel J. McMahon Albany e-mail: [email protected] ASSOCIATE EDITOR Philip C. Weis Oceanside
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“A JUST CAUSE FOR WAR”: NEW YORK’S DRED SCOTT DECISION BY WILLIAM H. MANZ 10 DEPARTMENTS 5 President’s Message 8 CLE Seminar Schedule 23 Burden of Proof BY DAVID PAUL HOROWITZ 48 Environmental Law 28 New Scrutiny on Tax Deduction of BY MONTGOMERY L. EFFINGER Settlements 51 Metes and Bounds BY ROBERT W. WOOD BY MARC W. BROWN 53 Family Law 35 How Not to Govern: Lessons From BY WILLARD H. DASILVA the Report to the Board of Regents 54 Index to Articles 2003–2007 of the Smithsonian Institution 61 Index to Authors 2003–2007 BY LESLEY FRIEDMAN ROSENTHAL 64 Attorney Professionalism Forum 67 Index to Advertisers 41 10 Practical Questions as a Client 68 Language Tips Faces Loan Default BY GERTRUDE BLOCK BY CHESTER B. SALOMON 69 New Members Welcomed 44 Update: Did the Appellate Odds Change 73 Classified Notices in 2006? 79 2007–2008 Officers Statistics in State and Federal Courts 80 The Legal Writer BY BENTLEY KASSAL BY GERALD LEBOVITS
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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 © 2007 by the New York State Bar Association. The Journal ((ISSN 1529-3769 (print), ISSN 1934-2020 (online)), official publica- tion 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 $18. 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 | November/December 2007 | 3
PRESIDENT’S MESSAGE KATHRYN GRANT MADIGAN Lawyers and Aging: Reaching for the Top Rung
he recent consent decree in the All of the world’s spiritual tradi- Sidley Austin retirement age tions provide models of realized or Tdiscrimination case, validating self-actualized elders. They are the a signature initiative of our Immediate roshi in Zen Buddhism, the lama in Past President, Mark Alcott, prompted Tibetan Buddhism, the sheikh in Islam, me to devote this President’s Message and the rebee in Hasidic Judaism. In to an exploration of other challenges western and native traditions, the sage, and opportunities we face with an the crone, the priest, and the wise man. aging lawyer population. Every day I Each of these traditions offers practices meet lawyers who are at the “tipping leading to self-knowledge and service point” of embracing their elder status, to society. not as an end, but as a new beginning, As we age in our western culture what former ABA President Karen today, we confront a lack of meaning- Mathis calls the “second season of ful role models. Since the Industrial 1,200 members of the American Bar service.” Indeed, there are many ways Revolution, elders have lost their Association, responded to her life his- to find greater joy and satisfaction esteemed place in our society. What tory questionnaire, from which she professionally and personally, living have evolved are our current models developed a well-being scale. The law- longer, healthier, and more purpose- or myths, which support a more nega- yers’ average age then (in 1980) was fully. tive perception of aging. 46. Most reported that, compared with One must first understand the his- We need a new paradigm that any previous stage in their lives, they torical concepts of aging, as well as rejects the notion of old age as a time were enjoying the peak of satisfaction. current, cross-cultural attitudes. The of inevitable decline, chronic disease They also predicted that the other side “Hierarchy of Needs” proposed by and diminished capacity, and that of 47 would be an inevitable down- eminent sociologist Abraham Maslow embraces the wisdom, serenity, bal- ward spiral. is a good place to start. His theory was anced judgment and self-knowledge The hard data, however, told a very that as one goes through life you pass that represent the fruit of long life different story. The lawyers who float- through each level of need before mov- experience. ed to the top of the well-being scale ing on to satisfy the next one. You start We also need to provide opportuni- were almost all older than 47; the most with biological and physical needs, ties for our aging population – includ- contented age group were the attorneys such as air, food and shelter, to safety ing older lawyers – to harvest the over 65. What Sheehy and so many needs, belongingness and love needs wisdom of their years and transmit a others since then have discovered is (co-workers, family, relationships) to legacy to future generations, in what- that aging, fortunately, is a commut- self-esteem needs (achievement, mas- ever form is most meaningful to them able sentence. There is no fixed point tery, prestige and status). Ultimately – community service, pro bono work, where you stop being middle-aged one hopes to reach self-actualization, mentoring, coaching, a work of art or and are condemned to being “old.” where you have realized your poten- literature, a song or a poem that fills Given the falling death rate among tial, seeking personal growth and the heart. our oldest Americans, today’s healthy meaning in life. One of the great commentators on 75-year-old is equivalent to yesterday’s Some get stuck, or “over-realized,” the human experience, author and 60-year-old. And what many of us at the self-esteem level, never reach- anthropologist Gail Sheehy, penned understand intellectually, but fail to ing out to grasp that top rung. Others her best-selling book Passages in the practice in reality, is the importance reach the top and discover that their mid-1970s. She then embarked on a of our lifestyle choices, which are far ladder was up against the wrong wall. comprehensive study of “pathfinders,” more predictive than our genetic pre- But in the end, what distinguishes or those who successfully navigated dispositions. self-actualizers is that they consider the passages – and crises – of adult- the means and the ends as equally hood and found their own path to KATHRYN GRANT MADIGAN can be important. They focus on enjoying the well-being or self-actualization. About reached on her blog at http://nysbar. journey as well as the destination. 60,000 men and women, including com/blogs/president.
NYSBA Journal | November/December 2007 | 5 PRESIDENT’S MESSAGE
Today our seniors, including “gray- Whether you are approaching Please join me in continuing this ing” lawyers, are looking for a renewed retirement or transitioning your prac- important conversation on the journey sense of purpose. So, instead of view- tice, already retired, or a Gen X or Y ahead by logging on to my blog at ing retirement as a staged reduction in for whom that is a distant possibility, http://nysbar.com/blogs/president, work hours and responsibilities and as I encourage you to approach aging where I will be sharing tips on work/ an end point in itself, you can reframe consciously, creatively, and as a new life balance and successful aging. You it and view it as an opportunity for beginning. Seize every opportunity to can also link directly to the blog from personal growth, increased volunteer- share your wisdom and experience, the home page of the NYSBA Web site ism. Making a difference. The self- leaving your legacy with the next gen- at www.nysba.org. ■ actualized life. eration. There are millions of reasons to do Pro Bono. (Here are some.)
Each year in communities across New York State, indigent people face literally millions of civil legal matters without assistance. Women seek protection from an abusive spouse. Children are denied public benefits. Families lose their homes. All without benefit of legal counsel. They need your help. If every attorney volunteered at least 20 hours a year and made a financial contribution to a legal aid or pro bono program, we could make a difference. Please give your time and share your talent. Call the New York State Bar Association today at 518-487-5640 or go to www.nysba.org/probono to learn about pro bono opportunities.
6 | November/December 2007 | NYSBA Journal
NYSBACLE Schedule of Remaining Fall 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.
Practical Skills – Purchases and Sales of Homes Dealing With Your Client’s Retirement Assets Fulfills NY MCLE requirement for all attorneys (6.5): 1.5 (half-day program) ethics and professionalism; 2.0 skills; 3.0 practice manage- Fulfills NY MCLE requirement for all attorneys (4.0): ment and/or professional practice 1.0 skills; 3.0 practice management and/or professional November 13 Albany; Buffalo; Hauppauge, LI; practice New York City; Rochester; Syracuse; November 15 Buffalo Westchester November 28 Syracuse Risk Management for Attorneys – Don’t Make December 7 Albany Malpractice Your Nightmare (half-day program) December 12 New York City Fulfills NY MCLE requirement for all attorneys (3.5): Ethics and Professionlism 2.5 ethics and professionalism; 1.0 practice management (half-day program) and/or professional practice Fulfills NY MCLE requirement for all attorneys (4.0): 4.0 November 13 Uniondale, LI ethics and professionalism Engaging and Working With Investigative November 16 New York City Consultants November 19 Tarrytown (half-day program) November 28 Melville, LI Fulfills NY MCLE requirement for all attorneys (3.0): November 30 Albany; Syracuse 2.0 ethics and professionalism; 1.0 skills December 7 Rochester November 14 New York City December 12 Buffalo Real Estate Titles Special Education Law Update 2007 +Fulfills NY MCLE requirement (7.5): 1.0 ethics and professionalism; 6.5 practice management and/or profes- Fulfills NY MCLE requirement for all attorneys (7.5): 1.0 sional practice ethics and professionalism; 6.5 practice management November 14 Rochester November 16 New York City Construction Site Accidents: The Law and the Trial November 28 Albany Fulfills NY MCLE requirement for all attorneys (7.0): New York’s Fault Divorce Law at Age 40: Pleading 4.0 skills; 3.0 practice management and/or professional and Proving Your Grounds Case practice (half-day program) November 15 New York City +Fulfills NY MCLE requirement (4.0): 4.0 areas of pro- fessional practice November 16 Buffalo November 16 Melville, LI Update 2007 December 7 Syracuse Fulfills NY MCLE requirement for all attorneys (7.5): 1.0 ethics and professionalism; 6.5 practice management and/ December 14 New York City or professional practice Practical Skills – Basics of Civil Practice – The Trial +Video Replays (do not qualify for MCLE credits for Fulfills NY MCLE requirement for all attorneys (7.0): 0.5 newly admitted attorneys) ethics and professionalism; 4.5 skills; 2.0 practice manage- November 15 Tarrytown; Uniondale, LI ment and/or professional practice November 16 Canton November 27 Albany; Buffalo; Melville, LI; New York City; Syracuse; November 28 Poughkeepsie Westchester November 30 Loch Sheldrake; Watertown NYSBABOOKS Winner of the ABA’s Constabar Award
New York Lawyer’s New York Appellate Practice Deskbook Fulfills NY MCLE requirement for all attorneys (7.0): 6.0–7.0 practice management and/or professional practice; ethics and Written and edited by leading professionalism credit available at certain sessions (please practitioners, the New York Law- check individual sessions) yer’s Deskbook is a two-volume, November 28 Albany 2,068 page resource, covering 25 different areas of practice. Each December 7 New York City chapter offers a clear, basic review Lobbying and Ethics Reform: An Update of its subject and the necessary steps (half-day program) for handling basic transactions in that area, giving both new and seasoned practitioners a solid footing in practice areas Fulfills NY MCLE requirement for all attorneys: (4.0): 4.0 that may be unfamiliar to them. areas of professional practice 2006–2007 • PN: 4150 • List Price: $325 • Member Price $250 November 29 Albany Supplement 2006–2007 • PN: 515006 • List Price: $138 Securities Arbitration and Mediation • Member Price $128 Fulfills NY MCLE requirement for all attorneys (7.0): 4.0 skills; 3.0 areas of professional practice November 29 New York City Practical Skills – Environmental Law for New Environmental Practitioners and Newly Admitted New York Lawyer’s Attorneys Fulfills NY MCLE requirements for all attorneys: (7.5): 7.5 Formbook areas of practice management The New York Lawyer’s Formbook is November 29 Westchester a 3-volume, 3,202 page compan- November 30 Albany; New York City; Syracuse ion to the Deskbook. Formbook’s Advanced Real Estate Practice 21 sections, covering 21 differ- ent areas of practice, familiarize +Fulfills NY MCLE requirements: (7.0): 7.0 practice practitioners with the forms and management and/or professional practice various other materials used when November 30 New York City handling basic transactions in each area. Many of these forms and materials are referenced in the Deskbook. Preparing and Drafting Organizational Documents for New York LLCs and Corporations Purchase the current Deskbook or Formbook and receive the (half-day program) 2007–2008 Supplement at no charge. Fulfills NY MCLE requirement for all attorneys (4.5): 2.0 2006–2007 • PN: 4155 • List Price: $325 • Member Price $250 skills; 2.5 practice management and/or professional practice Supplement 2006–2007 • PN: 515506 • List Price: $138 December 7 Uniondale, LI • Member Price $128 December 11 New York City December 14 Albany To register To order call or for more information call toll free 1-800-582-2452 1.800.582.2452 In Albany and surrounding areas dial (518) 463-3724 • Or fax your request to (518) 487-5618 or visit us online at www.nysba.org/CLE/fall2007 www.nysba.org/pubs (Note: As a NYSBA member, you’ll receive a substantial discount) ** Free shipping and handling within the con- tinental U.S. The cost for shipping and handling outside the continental U.S. will be added to † Does not qualify as a basic level course and, therefore, your order. Prices do not include applicable cannot be used by newly admitted attorneys for New York sales tax. MCLE credit. Mention code: PUB0145 when ordering. WILLIAM H. MANZ 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 “A Just 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). He wishes to thank Ralph Monaco of the New York Law Institute Library for mak- ing available the Lemmon volume of Charles O’Conor’s My New Y Own Cases. By William H. Manz n his 1853 annual messag comity . . . [that] if deliber Ilegislature, Governor Jose importance it is the first magn and thereby the value of slave Shall we endure this wrong?” t Cause for War”: York’s Dred Scott Decision
ge to the Georgia legislature, Governor Howell Cobb characterized a New York court decision as “a denial of rately and wantonly persisted in, would be a just cause for war.”1 In an earlier communication to the Virginia eph Johnson maintained that the decision “was . . . without a single precedent to sustain it,”2 adding that “in nitude, and in spirit it is without parallel.”3 The Richmond Examiner claimed that “this decision affects the safety e property throughout the entire South,”4 while the Charleston Mercury fumed: “Shall we submit to this reproach? 5 The object of these outcries, People ex rel. Napoleon v. Lemmon,6 freeing eight slaves in transit through New York The city to which Lemmon was bringing the slaves had the largest free black population in the North; many had been born in the South, and some were fugitive slaves.9 Although the best-known New York City abo- litionists were prominent whites, most notably Arthur and Lewis Tappan, wealthy merchants and founders of the American and Foreign Anti-Slavery Society, there was also an active black abolitionist movement ready to assist fugitive slaves and alert them to the presence of visiting southerners and would-be slave catchers. Only a month before, the black community had enthusiastically celebrated the return of former slave James Hamlet, the well-regarded employee of New York City liquor bro- kers Tilton & Mahoney, who had a free wife and child. Adjudged a fugitive, he had been returned to his owner in Baltimore, but his freedom was then purchased with funds raised in a subscription drive. When the City of Richmond reached New York in the late afternoon of Friday, November 5, 1852, Ashmead set off immediately to book passage for the Lemmons aboard a New Orleans-bound ship. Eventually, he returned and informed Jonathan Lemmon that he should proceed to South Street to meet a man who would provide passage on the steamer Memphis, which was scheduled to sail the William M. Evarts, Library of Congress. next morning. After Lemmon paid the $161 fare, the hack drivers engaged to carry his party and their baggage from the City of Richmond to the Memphis refused to take them State, subsequently developed into a legal battle between there, instead depositing them at No. 3 Carlisle Street, New York and Virginia. Attracting nationwide attention, a boarding house close to the Hudson River, and just it was expected to reach the Supreme Court and equal the south of the Fifth Ward, home to many of the city’s black Dred Scott decision in importance. population. The train of events which produced the controversial The next morning, the Lemmons were presented with case began with the plans of Virginia farmer Jonathan a writ of habeas corpus obtained by Louis Napoleon, Lemmon and his wife Juliet to emigrate from Bath a free black varnisher/polisher from the Fifth Ward.10 County, a mountainous area west of Richmond, and settle The writ stated that the slaves were in fact free persons, in Texas with their seven children and Juliet’s eight slaves, a claim based on the 1841 repeal of the so-called “nine- two young women, a young man, and five children. The months law,”11 a provision in the 1817 act providing for Lemmon family and their slaves left home in October the abolition of slavery in New York by 1827.12 The nine- 1852; after failing to find a ship sailing directly from months law had allowed visiting slave owners to retain Richmond for New Orleans, they traveled to Norfolk their slaves while in New York if they limited their stay where they boarded the steamer City of Richmond, bound in the state to that time. The repeal was one of several for New York, intending on arrival to immediately book anti-slavery laws enacted during the administration of passage for a voyage to New Orleans. abolitionist Whig Governor William H. Seward, and drew Jonathan Lemmon would initially claim that he had its strongest support from the so-called “Burned-Over no fears about bringing the slaves into New York, having District” of western New York, an area then known for allegedly been assured by the City of Richmond’s clerk, fervent Protestant religious revivalism, a strong temper- a Mr. Ashmead, that “he need not be uneasy about los- ance movement, and ardent abolitionist sentiments. ing the slaves; that the law was in [his] favor in New The repeal was enacted at the end of the 1841 legisla- York, and was bound to protect [him] in the possession tive session. After one bill was blocked in an assembly and property of [his] slaves; and that the Mayor of that committee,13 a new measure was introduced in the Whig- city would see that it was done, provided any difficulty controlled senate and quickly passed, supported by all should occur.”7 Later, he would exonerate Ashmead from 11 Whigs present and opposed by the eight Democrats.14 all blame for the loss of the slaves, stating that he had It then passed the evenly divided assembly, 57 to 49. been warned of his danger, “but rested secure in the belief that his slaves could not be induced to desert him.”8 CONTINUED ON PAGE 14
12 | November/December 2007 | NYSBA Journal
George Kirk, a fugitive stowaway discovered aboard the ship Mobile, holding that a Georgia statute allowing anyone, including a ship’s captain, to act as an agent for a slave owner, did not apply in New York.17 When Kirk was then re-apprehended by the captain and brought before Mayor Andrew H. Mickle, Edmonds ruled that the New York statute providing for this procedure18 was preempted by a federal law under which only the owner or his appointed agent could act in fugitive slave cases. Two years later, Edmonds freed fugitive slave Joseph Belt, who had been seized on a New York City street and held captive, because the claimant had not taken Belt before a United States magistrate as required by law.19 Then in 1851, Judge Alfred Conkling, an upstate Whig who detested slavery, freed John Davis, a fugitive slave from Louisville, ruling that the Fugitive Slave Act, which com- pelled local law enforcement officials to arrest runaway slaves, did not apply since the alleged escape took place almost a month before its enactment.20 Superior court judge Elijah Paine, who issued the writ of habeas corpus, and who would hear the Lemmon case, was, like Seward and Conkling, a Whig who regarded slavery as a “gigantic evil.”21 Born in Williamstown, Mass., in 1796, he was the son and namesake of Vermont judge and U.S. senator, Elijah Paine. An 1814 Harvard College graduate who studied at the Litchfield, Conn., law school, he was the author of two editions of Practice in Civil Actions and Proceedings in the State of New York, com- piler of Paine’s United States Circuit Court Reports, and a collaborator with Henry Wheaton in compiling Wheaton’s Reports, covering the United States Supreme Court from 1816 to 1827. Paine had been elected to the superior court in 1849, ousting the incumbent, Democratic Party stal- wart Aaron Vanderpoel, the “Kinderhook Roarer,” as part New York State Archives. of a Whig sweep in the city election. Representing the Lemmons were two young New CONTINUED FROM PAGE 12 York City attorneys, Henry D. Lapaugh and Henry The assembly vote on the new bill was largely along L. Clinton. Opposing them were abolitionist lawyers party lines, with 47 Whigs in favor and 45 Democrats Erastus D. Culver and John Jay. Jay, a Columbia College opposed,15 but critical support was provided by 10 graduate who later would be one of the founders of the Democrats, including four from New York City, offsetting New York Republican Party, was the son of the well- the votes of the four Whigs who opposed the measure.16 known abolitionist, Judge William Jay. He had previously The bill was signed into law by Seward, and New York represented several fugitives, including George Kirk, the was now presumably free of the last vestiges of slavery. slave freed by Justice Edmonds. Culver, who had success- It is not known how many southerners risked bringing fully argued for the writ of habeas corpus, was a member slaves into New York after the repeal, but the best-docu- of the executive committee of the American and Foreign mented visits involved single, highly-trusted household Anti-Slavery Society, had served in both the state assem- servants, who had no inclination to take up the often-dif- bly and Congress, and was a close friend of the father of ficult life of a free black in the North. While no cases arose future president Chester A. Arthur. involving slave transit, several decisions indicated the The legal arguments that would be employed in supe- likely result in a proceeding involving a judge opposed rior court, the General Term, and the Court of Appeals to slavery. In 1848, an anti-slavery Democrat, Justice John followed the same general themes.22 The pro-slavery W. Edmonds, a well-known believer in spiritualism who position maintained that slavery was constitutionally once felt compelled to deny rumors that he consulted with the spirits before making judicial decisions, freed CONTINUED ON PAGE 16
14 | November/December 2007 | NYSBA Journal
CONTINUED FROM PAGE 14 vious cases where slaves were declared free by northern state courts involved temporary residents,27 short-term protected, noting the Constitution’s three-fifths provi- visitors,28 or individuals who were arguably fugitives.29 sion regarding a state’s slave population and the Fugitive Also, unlike previous decisions, Lemmon did not involve Slave Clause;23 the absence of the term “slavery” in these a single slave, but all of a visitor’s slaves, a southerner’s provisions was dismissed as an insignificant artifice. most desirable form of property.30 Another factor was Property rights in slaves did not differ from those in that it was a decision by a court in a major port city, often any other form of property, visited by southerners, upon including livestock and inani- which the South relied econom- mate objects, and such prop- ically, a dependence causing erty was thus protected under much resentment as reflected the Privileges and Immunities by a New Orleans newspaper’s Clause.24 By virtue of the comment that New York was comity existing between the “the centre of reckless specu- states, slave owners had the lation, unflinching fraud and right to transit free states with downright robbery.”31 this “slave property.” Finally, The case of the Lemmon it was maintained that to pre- slaves generated great interest vent slave owners from pass- in New York City, particularly ing through free states with among the black population. their slaves was a violation of Thus, when the case was argued the Commerce Clause. during the week of November The absence of the term 7, the New York Herald reported slavery in the Constitution that “the staircases and lobby indicated to opponents of at City Hall were crowded to slavery that it was not con- excess. . . . [A]n immense crowd stitutionally protected. They of colored persons was col- insisted that slavery was lected manifesting the utmost against the law of nature, cit- impatience to learn the result of ing to Lord Mansfield’s deci- the trial.”32 sion in the famous Somerset When the arguments began, case.25 Because the states had the abolitionist lawyer Erastus the unquestioned right to abol- Culver maintained: “The provi- ish slavery, the states alone sions of the common law are in had the right to determine the Charles O’Conor. favor of the personal rights of status of persons within their liberty and freedom of every jurisdiction. The anti-slavery position naturally refused to individual and unless you can overcome that presump- view slaves as just another form of property, and argued tion by some positive local statute it must prevail and give that the Privileges and Immunities Clause granted visitors every man his freedom.” He stressed that the Lemmon only those rights held by a state’s residents. As the report slaves were not fugitives, and had been brought into New on the 1841 assembly bill repealing the nine-months law York voluntarily, not because their vessel had been forced stated: “It would be strange indeed, if we were bound, into port by bad weather. On the other side, Lapaugh and under this or any other clause, to vouchsafe to a citizen Clinton argued that the repeal of the nine-months law of another State all the peculiar and especial rights and did not apply to slaves in transit, and that the Lemmons’ privileges of the State, of which he is a citizen.”26 Thus, if slave property should be protected by the privileges and New Yorkers could not possess slaves in New York, nei- immunities granted by the federal Constitution, and by ther could any visitor from a slave state. As for comity, its virtue of the comity existing between the states. application was discretionary, and New York’s firm anti- When Judge Paine announced his decision on Saturday, slavery policy prevented granting it in the case of slaves November 13, the courtroom was again filled, with many and their owners in transit. Finally, the Commerce Clause persons crowding the corridors. In an opinion that the was inapplicable, because local law governed a person’s Herald described as “very elaborate and careful,”33 Paine status after arrival in a state. ruled that the Lemmon slaves were free. He agreed that Lemmon differed in several important respects from slavery existed only by local law, that the Privileges and other cases involving the status of slaves brought into free Immunities Clause granted visitors only those rights states. Most important, it was a clear-cut transit case; pre- accorded residents, and that the Commerce Clause was
16 | November/December 2007 | NYSBA Journal inapplicable to laws regulating or abolishing slavery. his riding horse, should he happen to ride to this state.”36 The judge concluded: “The laws of the state of New York Another called the decision “the most complete nullifi- upon this subject appear to me to be entirely free from cation of the Constitution of the United States that has any uncertainty. In my opinion they not only do not ever taken place.”37 In New York, the Democratic Herald uphold or legalize a property in slaves within the limits characterized the decision as “a victory coerced by law, of the state, but they render it impossible that such prop- not governed by justice,”38 while the pro-slavery Day erty should exist within those limits except in the single Book fumed that it was “the legal sanctioning of highway instance of fugitives under the constitution of the United robbery.”39 Reflecting the concerns of the merchant com- States.” munity, the Journal of Commerce warned: “[I]f New York Paine’s decision set off considerable celebration both plants herself on her sovereignty while robbing citizens inside and outside the courtroom. The New York Times of Virginia, we need not be surprised to hear of reprisals reported: “Scarcely had his Honor pronounced the con- in Virginia upon the property of New Yorkers,” adding cluding words, which decided the fate of the women and that “[t]he practical effect of this decision on the South the children, then there arose a wild hubbub, and cries will be to increase the irritation already existing there, of ‘good, good,’ and other expressions of approbation. and especially to injure, to a very considerable degree, the The crowd outside and inside the room, appeared to trade of New York with that region.”40 be intoxicated with joy, and it was some minutes before In 1849, the value of New York City’s southern trade order could be restored.”34 The eight former slaves were was $76,000,000.41 Thus, it was hardly surprising that led from the courtroom by Louis Napoleon, placed in a it was once said of the city that without slavery, “[t]he coach, and driven off amidst much cheering. One woman ships would rot at her docks; grass would grow in Wall spectator was heard to remark: “Oh, thank God and good Street and Broadway, and the glory of New York, like men.”35 that of Babylon and Rome, would be numbered with the Obviously, such sentiments were not shared by much things of the past.”42 As a result, the merchants consis- of the southern press. A Richmond paper complained tently strove to maintain good relations with the South that Lemmon had been “plundered,” adding: “There can by donating to relief funds after numerous yellow fever be no more reason or justice in depriving Lemmon of his epidemics, and supporting other charitable causes. Most slaves, than there would be in depriving Judge Paine of important, they advocated tolerance of slavery, although
NYSBA Journal | November/December 2007 | 17 many could hardly be described as admirers of that insti- litionists, they were already in the Elgin Settlement, a tution. As one merchant once told an abolitionist: “we fugitive slave community in Upper Canada.51 are not such fools as not to know that slavery is a great Since the Lemmons had no further personal interest evil, a great wrong. . . . [But] [i]t is a matter of business in the case, and because both of their attorneys, Lapaugh necessity.”43 and Clinton, were reportedly busy with other legal mat- After the enactment of the highly controversial ters,52 the case did not reach the General Term of the Fugitive Slave Act of 1850, fear of sectional strife led 100 supreme court until 1857. By then, two of the top attor- leading New York City merchants to form the Union neys in New York City had been drawn into the case. The Safety Committee. It advocated vigorous enforcement Virginia attorney-general engaged Charles O’Conor, an of the Act, but attempted to defuse tensions caused by Irish-Catholic, well known for his pro-slavery/pro-south- well-publicized returns of captured fugitives. In 1851, the ern views. The son of a rebel who fled Ireland after the Committee engaged noted attorney George Wood to rep- failed 1798 uprising, O’Conor overcame a poverty-strick- resent the owner of fugitive Henry Long, and then unsuc- en youth to become an affluent and successful attorney, admired for his thorough preparation and extensive legal knowledge. He was described by his Lemmon opponent, Lacking in social skills, he was William M. Evarts, as “a man without vanity . . . abso- sometimes so mentally preoccupied lutely hostile to every form of humbug.”53 Reportedly with legal matters that he ignored lacking in social skills, he was sometimes so mentally pre- occupied with legal matters that he ignored greetings on greetings on the street. the street. By the 1850s, O’Conor had handled numerous high-profile cases, perhaps most notably the successful cessfully attempted to purchase Long’s freedom after he representation of the wife of noted actor Edwin Forrest was returned to the South. The following year, under the in a long-running, hotly contested divorce proceeding.54 auspices of the Journal of Commerce, sufficient funds were Among his other well-known cases was Jack v. Martin,55 quickly raised to purchase the freedom of James Hamlet. where he successful represented the owner of a fugitive As previously noted, this effort was successful; Hamlet slave. Politically, O’Conor was connected to Tammany was returned to New York and welcomed by a large Hall and the pro-southern Hard Shell/Hunker faction of crowd at City Hall. the New York Democratic Party. A strong unionist who Similarly, the merchants moved swiftly to placate feared that abolitionism could result in southern seces- southern opinion after Judge Paine’s decision. The Journal sion, he was as convinced as any slave owner of black of Commerce announced a subscription fund to reimburse inferiority and that slavery was a necessary and benefi- the Lemmons, and $5,290 was raised, $290 more than cent institution. Lemmon claimed the slaves were worth. Some of the William M. Evarts, O’Conor’s opponent, was brought donors were motivated by sympathy for the Virginians, into the case by Chester A. Arthur, then a junior member who were described as less than prosperous, and by a of the Culver law firm, to replace New York Attorney sense that there had “been a “meanness about [the] trans- General Odgen Hoffman. Born in Boston, Evarts was a action,”44 that Lemmon had been “robbed of his property Yale graduate who had studied at the Dane Law School by trickery and the forms of law,”45 and because “a gross and the Daniel Lord firm in New York City. Described as injury [had] been done to a fellow citizen.”46 Heading the “polished, self-possessed, [and] keen-witted,”56 Evarts list of donors was Judge Paine ($100) who had described first gained a reputation in 1841 by serving as junior his decision as a “great misfortune” for the Lemmons.47 counsel in the unsuccessful defense of a former slave (It was rumored among the abolitionists that Paine’s $100 trader and notorious forger, but his later practice general- donation had been given to him by the merchants.48) ly involved representing bankers, merchants, and insur- Late in November, the merchants presented the ance companies. His court appearances included several Lemmons with a sight draft for $5,000 payable on their instances where he opposed O’Conor, including the well- return to Virginia, the family having abandoned its plans publicized dispute over the will of wealthy merchant to settle in Texas. At the same time, the Lemmons agreed Henry Parish,57 and People ex rel. Wood v. Draper, where to free the slaves, but only after the completion of legal Evarts successfully argued in the Court of Appeals for proceedings, since freeing them immediately would the constitutionality of a controversial act that replaced prevent an appeal of Judge Paine’s decision. As for the the Tammany Hall-controlled New York City police force eight former slaves, despite predictions by the Day Book with one controlled by the state.58 Evarts was a former that, unaccustomed to freedom, they would become as Whig, and one of the founders of the New York State “thieves, paupers, and prostitutes,”49 and the suggestion Republican Party. Originally a supporter of the Fugitive by a Georgia paper that they would end up in New York’s Slave Act, his opposition to slavery strengthened during notorious Five Points,50 aided by $800 raised by the abo- the 1850s, and “wandered into genuine passion.”59
18 | November/December 2007 | NYSBA Journal By the time Lemmon reached the General Term, sec- a less-than-vigorous prosecution of accused slave-ship tional conflict over slavery had intensified. Many south- captain Nathaniel Gordon.69 erners were incensed by abolitionist activity in the North, During the three-day General Term oral argument, convinced that it was part of a wider plot by the British O’Conor maintained that slavery was permitted under (who had abolished slavery in their West Indian colo- the common law, and that judges had no right to declare nies) to undermine slavery in the South.60 Meanwhile, it to be contrary to the “unconstitutional and imaginary” anti-slavery northerners were outraged by the passage law of nature.70 He argued that New York’s ban on slave of the Kansas-Nebraska Act in 1854, which opened the transit violated the principles of comity, the Privileges and federal territories to slavery and the subsequent efforts Immunities Clause, and the Commerce Clause. Finally, he by pro-slavery forces to make Kansas a slave state. Many claimed that “the general doctrines in Dred Scott’s case suspected that the aggressive “Slave Power” faction, not must be maintained, their alleged novelty notwithstand- satisfied with spreading slavery to the territories, would ing.”71 Evarts and his co-counsel, abolitionist attorney use Lemmon to reestablish slavery in the free states, fulfill- and prominent Republican Joseph Blunt, argued that ing the boast of Robert Toombs, a United States senator neither comity nor the Privileges and Immunities and from Georgia, that he would someday call the roll of his Commerce clauses required New York to permit slave slaves on Bunker Hill.61 transit. Instead, it was maintained that New York “has the In March 1857, opponents of slavery were further right to reiterate the law of nature – to purge herself of an angered and alarmed by the Dred Scott decision, which evil that exists only in violation of natural right.”72 contained the statements by former slave owner Chief The relative merits of these arguments were essen- Justice Roger Taney that the Constitution treated slaves as tially in the eye of the beholder. The Day Book approv- property which the government had a duty to protect,62 ingly published O’Conor’s pro-slavery remarks,73 while and that blacks had “no rights which the white man the Tribune maintained that O’Conor’s argument “from was bound to respect.”63 The abolitionist New York Daily beginning to end smacked of the lash,” and claimed that Tribune maintained that decision deserved “just so much Evarts and Blunt “spoke like lawyers, the representa- moral weight . . . as the judgment of a minority of those tives of a learned and humane profession.”74 The opinion congregated in any Washington bar-room.”64 In Albany, that mattered, that of Justice Mitchell, handed down in an assembly report accused the Justices of “plac[ing] December, affirmed Judge Paine (who had died in 1853), themselves . . . in the front rank of pro-slavery propagan- agreeing on all points with Evarts and Blunt. Tammany dism and offensive aggression upon the rights of the free Democrat Roosevelt alone dissented, but published no state.”65 The Legislature then passed a resolution stating opinion. “[t]hat this state will not allow slavery within her bor- Presumably because of the Court of Appeals’s rap- ders, in any form, or under any pretence, or for any time idly expanding caseload,75 Lemmon was not argued however short.”66 there until January 1860. The Court then consisted of Lemmon was scheduled for argument before the four judges elected statewide, and four supreme court General Term in May 1857, but O’Conor and Evarts justices assigned for one-year terms. The chief judge was favored a postponement because they wanted time to Democrat George F. Comstock of Syracuse, elected to the study the as-yet-unpublished Dred Scott decision.67 The Court in 1855 as the candidate of the anti-immigrant/anti- oft-delayed argument finally took place in early October Catholic Know-Nothing Party. Two judges, Democrat before five supreme court justices. William Mitchell, the Thomas Clerke, and Republican Henry E. Davies, had presiding justice, was a graduate of Columbia College concurred with Justice Mitchell when they heard the case elected to the court in the same Whig sweep that put while serving on the General Term. Clerke was serving Judge Paine on the bench. Also present were Charles as a temporary judge, while Davies had been elected as a A. Peabody, a participant in the founding of the new regular judge in 1859 after winning the Republican nomi- Republican Party, and his fellow Republican Henry E. nation because of his anti-slavery credentials. Davies, the former corporation counsel of Buffalo. The Other Democrats on the Court were Samuel L. Selden, two remaining justices, Thomas W. Clerke and James a Hard Shell adherent from Rochester, who was elected J. Roosevelt, were Democrats. The Irish-born Clerke, in 1855, and Hiram Denio of Utica. First elected to the a member of the Hard Shell faction, had visited New court in 1853, Denio was renominated in 1857 over the York in 1823 after studying law in London, and decided objections of New York City Mayor Fernando Wood and to stay. The Tammany-connected Roosevelt (Theodore Tammany Hall (who were infuriated by the judge’s deci- Roosevelt’s great-uncle), derided by conservative Whig sion in the police department case), and then won a three- diarist Philip Hone as a “foolish piece of vanity,”68 would way race against the Republican and Know-Nothing later demonstrate his attitude toward slavery when as a candidates. At the Republican state convention, some United States district attorney he dropped slave-trading delegates, looking ahead to the Court’s ruling on Lemmon, charges against the crew of the ship Orion, and conducted unsuccessfully backed Denio as their nominee, assuring
NYSBA Journal | November/December 2007 | 19 their colleagues that he was against slavery and favored Wright, with his three fellow Republicans concurring, state laws.76 The remaining judges were Republicans: called slavery “repugnant to natural justice and right,”82 William J. Bacon of Utica who reportedly “could not and differed with Denio over the Commerce Clause, tolerate the idea of human slavery”;77 William B. Wright maintaining that it did not affect the power of the states of Monticello, who during the tenant farmers’ anti-rent over slavery. Hard Shell Democrat Clerke, whose attitude war of 1845–46 had held court in a courthouse filled with toward slavery can be discerned in his comment that only armed men; and Henry Welles from Penn Yan, a War of the “nervous and fastidious”83 would see any detriment 1812 veteran and former Yates County district attorney. in permitting slave transit, reversed the position he had Before a large audience at the Court of Appeals, taken in the General Term. Citing Dred Scott, he argued O’Conor, Evarts, and Blunt made essentially the same that slaves were property protected by the Constitution, legal arguments as in the General Term. O’Conor also and accordingly, the repeal of the nine-months law was expounded at length on alleged black inferiority and the “directly opposed to the rules of comity and justice benefits of slavery. His argument included an appeal to which ought to regulate intercourse between the States patriotism: “I see not how any honorable American can of this Union.”84 Democrats Selden and Comstock, in love his country or pretend to be a patriot and yet join in brief opinions that the New York Times mocked as “stump this crusade against negro slavery — a crusade against speeches,”85 claimed that they had been unable to spend his country’s honor, peace and prosperity.”78 Here, he enough time studying the case to write full opinions, but referred to America’s traditional enemy the British, pro- that in their view, the repeal of the nine-months law was claiming, “Can he be a patriotic American who joins in a violation of justice and comity.
Evarts presented the court with a list of dire social and legal consequences if slave transit were permitted. His approach to Dred Scott was to argue that the case affi rmed a state’s control over the conditions of all persons within it. the cry of [the British] against his country’s Constitution; As previously noted, it was expected that the Supreme who joins with a foreign adversary in denouncing it as Court would have the final say in Lemmon. A Georgia a foul reproach to the name of humanity; as an outrage newspaper optimistically predicted, “It is highly prob- against common decency?”79 able justice will be rendered by that Court, in conformity Evarts presented the Court with a list of dire social with its decision in the case of Dred Scott.”86 Conversely, and legal consequences if slave transit were permitted. the Hartford Daily Courant warned: “The Lemon [sic] case His approach to Dred Scott was to argue that the case will now be carried to the Supreme Court in Washington, affirmed a state’s control over the condition of all per- and if the Shamocracy triumph in the Presidential con- sons within it, and that statements such as Chief Justice test in 1860, the ruling in all probability be reversed.”87 Taney’s notorious remark about blacks having no rights The Courant editors’ fears about the case in the hands a white man was bound to respect “are without any of pro-slavery judges were realistic. In 1854, in Wheeler application to the real inquiry of this court.”80 He also v. Williamson, a pro-slavery federal judge ruled that the included the warning that if the slave states continued repeal of Pennsylvania’s “six-months law” did not affect their attempt to spread slavery into the federal territories the right of slave transit.88 Four years later, pro-slavery and compel the free states to tolerate it, “catastrophe judges on the California Supreme Court held that a may happen; this catastrophe will be, not the overthrow temporary resident retained ownership of a slave he’d of our common government, but the destruction of this brought with him from Mississippi.89 In fact, a modern institution, . . . which will have provoked a contest with commentator argues convincingly that Taney’s Court the greatest forces of liberty and justice which it cannot could have ruled that New York’s ban on slave transit maintain, and must yield in a conflict which it will, then, was an “unconstitutional interference with interstate be too late to repress.”81 commerce [and] . . . that the statute was also an abridge- Denio’s lengthy majority opinion affirming the General ment of the comity guarantees of Article IV.”90 Term agreed with Evarts and Blunt on most issues, except As it was, the onset of the Civil War ensured that that it allowed that in certain instances the Commerce Evarts and O’Conor would not argue Lemmon before the Clause might require permitting the transit of slaves Supreme Court.91 O’Conor never changed his views on through a free state. In a more strongly worded opinion, slavery and, at the end of the Civil War, volunteered to
20 | November/December 2007 | NYSBA Journal defend Jefferson Davis. During the 1870s, he participated 17. Kirk, 4 N.Y. Legal Obs. 456. in the reformist crusade that brought down the Tweed 18. 1 R.S. 659, § 15. Ring. When he died in 1884, his funeral mass at the new 19. In re Belt, 1 Parker Crim. Rep. 169 (Sup. Ct., N.Y. Co. 1848). St. Patrick’s Cathedral was attended by many New York 20. Ex parte Davis, 7 F. Cas. 45 (N.D. N.Y. 1851) (No. 3613). Conkling also fined the would-be slave-catcher $50 for assault, the maximum the law allowed. The legal notables. Evarts’s subsequent career included serv- Buffalo Slave Case, Brooklyn Daily Eagle, Aug. 22, 1851, at 2. ing as defense counsel for Andrew Johnson during his 21. Martyn Paine, Biographical Sketch of Hon. Elijah Paine, 2 Reports of Cases impeachment proceedings, representing the Republican Argued and Determined in the Circuit Court of the United States for the Party during the disputed Hayes–Tilden presidential Second Circuit (Thomas W. Waterman ed., 1860). election, and serving as Hayes’s secretary of state and 22. For a thorough discussion of the pro-slavery view on slave transit through free states, see Thomas R.R. Cobb, An Inquiry Into the Law of Negro Slavery in the as a United States senator; he died in 1901. As for the United States 209–20 (1858). Cobb was a leading Georgia attorney who helped Lemmons, whose ill-advised trip to New York produced write the Confederate Constitution, and who later was killed at the Battle of the controversial case, they settled in Botetourt County, Fredericksburg. 23. U.S. Const. art. I, § 2, cl. 3 (“three-fifths” law), art. IV, § 2, cl. 3 (fugitive Virginia, and in 1860 were listed as the owners of four slave law). 92 slaves. 24. U.S. Const. art. IV, § 2. It has been claimed that “within the realm of state 25. Somerset v. Stuart, (1772) 98 Eng. Rep. 499 (K.B.) (involving a slave belong- action Lemmon represents the final development of the ing to a slave owner temporarily living in England). There is some dispute law of freedom.”93 However, it has also been noted that over what Mansfield actually said in his opinion. See Jerome Nadelhaft, The Somersett Case and Slavery; Myth, Reality, and Repercussions, 51 J. Negro Hist. the Court of Appeals’s rejection of O’Conor’s constitu- 193 (1966) (maintaining that the often-cited version given in Lofft’s Reports, and tional arguments for the slave owners “hardly consti- reprinted in the English Reports, is unreliable); William M. Wiecek, Somerset: tuted new law.”94 Furthermore, the slave transit issue Lord Mansfield and the Legitimacy of Slavery in the Anglo-American World, 42 U. Chi. L. Rev. 86 (1974) (arguing for reliance on the Lofft’s Reports version); Steven did not, as Judge Clerke claimed, “consist of purely legal M. Wise, Though the Heavens May Fall 185-91 (2005) (discussing seven differ- questions.”95 Instead, the case’s outcome was determined ent versions of the opinion). by social and political factors existing in New York in the 26. Report of the Judiciary Committee, on the Petitions of Numerous Citizens decade preceding the Civil War. The ultimate position of of this State, Relating to Slavery, Assembly Doc. No. 239 (Mar. 30, 1841). 27. See Commonwealth v. Aves, 18 Pick. 193 (Mass. 1836); Jackson v. Bulloch, 12 all the judges who ruled on the constitutionality of the Day 38 (Conn. 1837). ban on slave transit conformed to their political affiliation 28. See In re Lewis Pierce, 1 W. Legal Obs. 14 (Pa. Ct. Common Pleas 1848) (mas- and/or views on slavery. Thus, what Lemmon does rep- ter and slave visiting Philadelphia); Maria v. Kirby, 12 B. Mon. 542 (Ky. 1851) resent is the victory of a position based on morality and (Kentucky court refused to recognize local Pennsylvania decision declaring free a slave who had visited Washington County for four days). human rights, unlike Dred Scott, where the Justices in the 29. See Kauffman v. Oliver, 10 Pa. St. 514 (1849) (slaves who had tran- majority were influenced by racist beliefs, and economic sited Pennsylvania en route from Arkansas to Maryland escaped back into and political considerations. ■ Pennsylvania). 30. For a discussion of the value of slaves to a southerner, see Cobb, supra note 1. Report of the Lemmon Slave Case Containing Points and Arguments of 22, at ccxvii. Counsel of Both Sides and Opinions of All the Judges 13 (1860) (“Report of the 31. Philip S. Foner, Business and Slavery: The New York Merchants & the Lemmon Slave Case”). Irrepressible Conflict 12 (1941) (citing N.Y. Herald, Dec. 14, 1857 (quoting the 2. Id. at 12. New Orleans Crescent)). 3. Id. 4. Untitled, Richmond Examiner, Nov. 19, 1852, at 1, 5. The Lemmon Case, Charleston Mercury, Dec. 16, 1852, at 1. 6. 5 Sand. 681 (N.Y. Super. Ct. 1852). 7. The Slaves of Jonathan Lemmon, N.Y. J. Commerce, Nov. 18, 1852, at 2. 8. Mr. Ashmead, Daily Dispatch (Richmond), Dec. 2, 1852, at 2. 9. Leo H. Hirsch, The Free Negro in New York, 16 J. Negro Hist. 415, 415 (1931). 10. 1850 United States Census, Fifth Ward 417 (copy on file with the author). In 1846, Louis Napoleon had had successfully petitioned for the freedom of alleged fugitive slave George Kirk. See In re Kirk, 4 N.Y. Legal Obs. 456 (Sup. Ct., N.Y. Co. 1846). 11. 1841 N.Y. Laws, ch. 247. 12. 1817 N.Y. Laws, ch. 137. 13. Journal of the Assembly of the State of New York at the Sixty-Fourth Session 1013 (1841). 14. Journal of the Senate of the State of New York at the Sixty-Fourth Session 490 (1841). 15. For a list identifying all the Whig members of the legislature, see Address of Whig Members of the Legislature, Albany J., May 31, 1841, at 3. For a list of all the sixty-fourth session members, see Franklin B. Hough, The New-York Civil List 136, 248-50 (1855). 16. Journal of the Assembly, supra note 13, at 1381–82.
NYSBA Journal | November/December 2007 | 21 32. Important Slave Case, N.Y. Herald, Nov. 10, 1852, at 1. 67. The Lemmon Case, May 7, 1857, in 34 My Own Cases [n.p.] [n.d.] (press clip- 33. The Slave Case – Manumission of Eight Slaves, N.Y. Herald, Nov. 14, 1852, ping). at 2. 68. Nathan Miller, The Roosevelt Chronicles 123 (1979). 34. The Slave Case, N.Y. Daily Times, Nov. 15, 1852, at 6. 69. For a thorough account of the Gordon case, see Ron Soodalter, Hanging 35. Slaves Free – Important Decision, N.Y. Daily Trib., Nov. 15, 1852, at 6. Captain Gordon (2006). 36. The Slave Case in New York, Daily Dispatch (Richmond), Nov. 16, 1852, 70. Law Intelligence, N.Y. Times, Oct. 2. 1857, at 3 at 2. 71. Lemmon v. The People, 26 Barb. 270, 276 (Sup. Ct. Gen. Term 1857), aff’d, 20 37. Decision of Judge Payne of New York, Georgia Telegraph (Macon), Nov. 23, N.Y. 562 (1860). 1852, at 2, reprinted from the Richmond Examiner. 72. Id. at 284. 38. The Slave Case – Manumission of Eight Slaves, supra note 33. 73. The Lemmon Slave Case – Charles O’Conor Sustains the Doctrines of the Day 39. A Higher Law Triumph – Legal Sanction of Highway Robbery – The Humanity of Book (undated clipping), in 34 My Own Cases, supra note 67. the Abolitionists Satisfied, N.Y. Day Book, Nov. 15, 1852, at 2. 74. Untitled editorial, N.Y. Daily Trib., Oct. 6, 1857, in 34 My Own Cases, supra 40. The Slave Case, N.Y. J. Commerce, Nov. 11, 1852, at 3. note 67. 41. Foner, supra note 31, at 4 (citing N.Y. J. Commerce, Dec. 12, 1849; Oct. 25, 75. In 1853, the court decided 207 cases, but by 1862, that number had more 1850). By 1862, the value of goods sold to southern customers had risen to than doubled to 497. Francis Bergan, The History of the New York Court of $131,000,000. Id. (citing Stephen Colwell, The Five Cotton States and New York Appeals, 1847–1932, at 44 (1985). or, Remarks upon the Social and Economical Aspects of the Southern Political 76. Meeting of the Republican Delegates to Syracuse – Judge Denio’s Nomination Crisis 23–24 (1861)). Favored, N.Y. Times, Sept. 18, 1857, at 1. 42. Id. at 4 (citing 39 DeBow’s Review 318 (1860)). 77. What the People Say of Him, Utica Herald, July 4, 1889, reprinted in In 43. Samuel J. May, Some Recollections of the Anti-Slavery Conflict 127 (1869). Memoriam: William Johnson Bacon 94 (1889). 44. The Lemmon Indemnity Fund, N.Y. J. Commerce, Nov. 20, 1852, at 2 (letter 78. Report of the Lemmon Slave Case, supra note 1, at 119–20 (O’Conor closing from Jonathan Sturges). argument). 45. Id. (letter from Stewart, Greer & Co.). 79. Id. at 119. 46. Id. (letter from Henry Le Roy Newbold). 80. Id. at 89 (Evarts argument). 47. The Fruits of Prejudice Against Slavery, N.Y. Day Book, Nov. 15, 1852, at 2. 81. Id. According to the Journal of Commerce, Paine’s $100 was later returned to him 82. Lemmon v. The People, 20 N.Y. 562, 617 (1860). because the fund had been oversubscribed by $290. The Lemmon Indemnity, N.Y. 83. Id. at 633. J. Commerce, Nov. 27, 1852, at 3. 84. Id. at 644. 48. Thirteenth Annual Report of the American & Foreign Anti-Slavery Society 34 (1853). 85. The Lemmon Slave Case, N.Y. Times, Apr. 26, 1860, at 4. 49. Abolitionists Satisfied, N.Y. Day Book, Nov. 15, 1852, at 2. 86. The Lemmon Case, Macon Daily Telegraph, Feb. 1, 1860, at 2. 50. Decision of Judge Payne of New York, supra note 37. 87. The Lemon Slave Case, Hartford Daily Courant, Apr. 17, 1860, at 2. 51. Lewis Tappan, Correspondence of Lewis Tappan and Others with the British and 88. 28 F. Cas. 682, 692 (E.D. Pa. 1855) (No. 16,726). Foreign Anti-Slavery Society [pt. 11], 12 J. Negro Hist. 487, 494, 496 (1927) (letter 89. See In re Archy, 9 Cal. 147 (1858) of Dec. 10, 1852). 90. Paul Finkelman, The Nationalization of Slavery: A Counter-Factual Approach 52. Henry Lauren Clinton, Extraordinary Cases 181 (1896). to the 1860s, 14 Louisiana Stud. 213, 224 (1975). 53. Chester L. Barrows, William M. Evarts: Lawyer, Diplomat, Statesman 204 91. Some sources state that Lemmon actually was appealed to the Supreme (1941). Court, but the Court’s archivist informed the author that he was unable to find 54. Forrest v. Forrest, 10 Barb. 46 (Sup. Ct., N.Y. Co. 1850); Forrest v. Forrest, 2 any reference to Jonathan or Juliet Lemmon in the case files. Edm. Sel. Cases 180 (Sup. Ct., N.Y. Co. 1850); Forrest v. Forrest, 3 Bosw. 661 (N.Y. 92. Schedule 2 – Slave Inhabitants in the County of Botetourt, State of Virginia Sup. Ct. 1859). 7 (June 1860) (copy on file with the author). 55. 14 Wend. 507 (N.Y. 1835) (declaring the Fugitive Slave Act of 1793 uncon- 93. Paul Finkelman, An Imperfect Union: Slavery, Federalism, and Comity 310 stitutional, but remanding the slave to the owner because of an obligation to (1981) enforce the Fugitive Slave Clause of the Constitution). 94. Aviam Soifer, Compromise at the Boundaries of Bondage, 10 Revs. in Am. 56. 1 History of the Bench and Bar of New York 149 (David McAdam et al. Hist. 185, 188 (1982) (reviewing Paul Finkelman, An Imperfect Union: Slavery, eds., 1897). Federalism, and Comity (1981)). 57. Delafield v. Parish, 1 Redf. 1 (N.Y. Surr. 1857, aff’d, Parish v. Parish, 42 Barb. 95. Lemmon v. The People, 20 N.Y. 562, 633 (1860). 274 (Sup. Ct., N.Y. Co. 1858); In re Parish’s Estate, 29 Barb. 627 (Sup. Ct. Gen. Term 1859). 58. 15 N.Y. 532 (1857). 59. A. Oakley Hall, William M. Evarts, 7 Green Bag 93 (1896). Correction: 60. See David Brion Davis, Inhuman Bondage: The Rise and Fall of Slavery in the New World 281, 385 (2006). In J. Michael Hayes’s article, “Are Medicare, 61. For a reference to Toomb’s remark, see The Lemmon Slave Case, Hartford Medicaid, and ERISA Liens? Resolving ‘Liens’ Daily Courant, June 29, 1854, at 2. in Personal Injury Settlements,” September 2007 62. Scott v. Sandford, 60 U.S. (19 How.) 393, 404 (1857). Journal, note 22 referenced “So What’s ERISA 63. Id. at 407. All About? A Concise Guide for Labor and 64. Davis, supra note 60, at 287 (quoting N.Y. Daily Trib., Mar. 7, 1857). Employment Attorneys” and incorrectly attrib- 65. Report of the Joint Committee of Senate and Assembly Relative to a uted it to Mr. Hayes. That article, published in Certain Decision of the Supreme Court of the United States in the Case of Dred the October 2005 Journal, was written by Stephen Scott, Assembly Doc. No. 201 (1857). E. Ehlers and David R. Wise. 66. 1857 N.Y. Laws 797.
22 | November/December 2007 | NYSBA Journal BURDEN OF PROOF BY DAVID PAUL HOROWITZ
DAVID PAUL HOROWITZ ([email protected]) practices as a plaintiff’s personal injury litigator in New York City. Mr. Horowitz teaches New York Practice at New York Law School, is a member of the Office of Court Administration’s CPLR Advisory Committee, and is a frequent lecturer and writer on the subject.
A Bronx Tale
disclosure demands. In addition, the In Kryzhanovskaya v. City of New Introduction understandable familiarity that can York,2 the Second Department modified ttorneys practicing in the per- arise between court personnel and the the order of the trial court, which had sonal injury field downstate assistant corporation counsel appear- declined to impose a penalty against Aencounter within the five ing everyday in the same City Part the City for failing to produce a wit- counties of New York City a phe- causes some grumbling. ness. The Second Department inserted nomenon known as the “City Part.” The dockets in City Parts can be language conditionally dismissing the Justices in the City Part preside over staggering. One anecdotal piece of evi- City’s answer unless the deponent the pre-trial proceedings in cases in dence: at a bar association event sev- sought by the plaintiff was produced, which the City of New York, and eral years ago I spoke with Justice Luis along with certain information relating related municipal entities, such as the A. Gonzalez, then presiding over the to a witness in the case. The Second Health & Hospitals Corporation, are Bronx City part and now sitting on the Department reminded litigants, and parties. Appellate Division, First Department, their attorneys, that “[s]triking a plead- The advantages of a City Part include who told me that he had approximate- ing is appropriate where a party’s con- allowing the Office of the Corporation ly 3,000 cases on his docket. duct in resisting disclosure is shown Counsel, where it represents the City or Presiding over a City Part is a to be willful, contumacious, or in bad other municipal defendant, to husband Sisyphean task. faith.”3 The Second Department had its limited attorney resources in one no difficulty ascertaining that the City civil part in each county. The advan- Disclosure in City Parts had acted in a manner warranting a tages for the court system include the One complaint that private litigants severe sanction: ability to oversee and monitor these have had in cases against the City In this case, the willful and con- same cases in one civil part on one is that the City does not appear to tumacious character of the defen- docket. It also provides the opportu- be held to the same requirements as dant’s failure to produce a wit- nity for establishing procedures that private litigants when it comes to the ness for deposition can be inferred both streamline pre-trial proceedings timeliness and completeness of its dis- from its continuing noncompli- and ensure that the cases move to a closure obligations. Having provided ance with two orders directing the stage of trial readiness as quickly as disclosure updates for many years, I defendant’s deposition, repeated possible. The advantage for private can remember reviewing the cases for adjournments of the scheduled litigants involved in litigation with the a given year, and it would seem to me deposition dates, and inadequate City is, perhaps, that in each particular that, on motions for a disclosure pen- excuses for the failure to produce a county there is uniformity in dealing alty pursuant to CPLR 3126, the City witness for deposition.4 with these cases. had been given multiple chances to The First Department imposed a On the other hand, private litigants cure a disclosure default, and seemed similar conditional order, accompa- must contend with extended waiting to consistently avoid the penalty of nied by a $10,000 sanction payable to time on both the pre-trial and trial having its answer stricken. the plaintiff’s counsel where: readiness calendars. In some counties, I have also observed that this has Defendant’s response to the myri- the initial order at the preliminary changed in recent years, with the ad discovery orders entered in this conference contains a supersedeas pro- appellate divisions imposing disclo- action over the course of some two vision,1 vacating all previously served sure penalties when City Part trial years has been inexcusably lax. disclosure demands, and substituting, judges do not. Two recent cases from While discovery has trickled in by category of case (such as a slip the Second Department, and one from with the passage of each compli- and fall on City property) uniform the First, illustrate this trend. ance conference, the cavalier atti-
NYSBA Journal | November/December 2007 | 23 tude of defendant, resulting as it during his tenure in that part, Justice In Miller v. The City of New York,12 the has in substantial and gratuitous Victor has consistently held the City plaintiff was forced to move five times delay and expense, should not to the same disclosure standards as for disclosure and, when the defen- escape adverse consequence.5 the private litigants appearing before dant failed to comply with the final Of course, the orders were still con- him. This body of case law provides a order, which was a conditional order ditional ones. model of evenhandedness worthy of of dismissal, the defendant’s answer Not so in the next Second Department the highest form of flattery known in was stricken, with the court character- decision, Maiorino v. City of New York.6 our legal system – theft in the form of izing the defendant’s belated efforts Acknowledging that actions should be copying elsewhere. to comply as “too little, too late.”13 In resolved on the merits wherever pos- For example, in Rampersad v. New addition, a monetary penalty of $2,500, sible, the Second Department reversed York City Dep’t of Education10 after on top of a prior $500 penalty, was the trial court and struck the answer of the defendant failed to provide dis- imposed to reimburse the plaintiff’s the City: closure in response to a Preliminary counsel $500 for each motion brought Here, the defendant’s willful and Conference Order and an order follow- to compel disclosure. contumacious conduct can be ing the plaintiff’s first motion to com- In Santiago v. City of New York,14 it inferred from its repeated fail- pel, the plaintiff made a second motion was the plaintiff who failed to provide ures to comply with court orders for the same disclosure. The motion disclosure despite one defendant hav- directing disclosure and the inad- was referred to Judicial Hearing Officer ing made four prior motions, each equate excuses offered to justify (JHO) Giamboi, who recommended resulting in an order directing the the defaults. Accord that branch of that all deposition dates be resched- plaintiff to disclose, including a final the plaintiff’s subsequent motion uled, and further recommended that, if conditional order. which was to strike the answer the defendant failed to produce its wit- Plaintiff has not only failed to com- should have been granted, and the ness for deposition, its answer would ply with the preliminary conference matter is remitted to the Supreme be stricken. Justice Giamboi’s recom- order, and multiple interim orders, Court, Kings County, for an inquest mendations were adopted by the court, but also with the final conditional on the issue of damages.7 the defendant failed to produce its wit- order which granted him an addi- At the same time, the message from ness for deposition. The court held that tional generous extension of time the Court of Appeals that disclosure the terms of the conditional order had within which to comply. Moreover, orders and rules are to be obeyed8 become absolute, and the defendant’s counsel for plaintiff now presents is having its intended effect, and the answer was stricken. this court with a totally frivolous appellate courts have taken to prod- The defendants have not demon- and disingenuous motion which ding trial judges to be more proactive strated an entitlement to be relieved seeks an additional extension in overseeing disclosure. from the terms of the condition- based on, among other things, a Recently, in Figdor v. City of New al order. To the extent there has false claim that defendants’ caused York, the First Department went out of been some degree of compliance the delay. Since the conduct of the its way to make clear its displeasure with the terms of the conditional plaintiff herein appears to be even with a trial court that allowed the order, that compliance constituted more egregious than that in Figdor, defendant in an action to engage in only the act of waiving the deposi- Belton and Rampersad . . . , the dilatory conduct: tion of the plaintiff an issue that ultimate sanction, dismissal of the could have been resolved prior complaint is warranted.15 We take this opportunity to encour- to the making of the motion, the age the IAS courts to employ a In addition to the dismissal of the more proactive approach in such holding of the hearing before JHO plaintiff’s complaint, the court imposed circumstances; upon learning that Giamboi, and the necessity of fur- a $500 monetary penalty, per motion, a party has repeatedly failed to ther appearances and submissions per defendant, to reimburse the defen- comply with discovery orders, to determine compliance with the dants for legal fees incurred in making 16 they have an affirmative obliga- conditional order. those motions. 17 tion to take such additional steps Moreover, there was never any In Puglsey v. City of New York, a as are necessary to ensure future issue as to the plaintiff’s availabil- conditional order dismissing the com- compliance.9 ity for depositions. The problem plaint, and a $500 monetary penalty, is, and was, the failure to produce was levied upon a plaintiff who failed A City Part Paradigm the defendants’ building services to appear for a deposition pursuant For some years the City Part in Supreme staff. That deposition has still not to the preliminary conference order, Court, Bronx County, has been pre- been completed, and no justifiable failed to appear on the adjourned date sided over by Justice Paul A. Victor. excuse has been advanced for the requested by the plaintiff, and failed to In a number of published opinions failure to provide discovery.11
24 | November/December 2007 | NYSBA Journal respond to the defendant’s good faith unless, within 30 days, the records mum said affidavit must include letter. were turned over. So far, nothing out the following information: Where the parties disputed who of the ordinary. (1) Official Custodian/Qualifica- was responsible for adjourning the However, the court took the time tions of Affiant. The affiant must deposition of the defendant’s witness, to systematically review, and propose be either the Official Custodian the court conducted a hearing, with a method for addressing, documents or otherwise qualified person that both sides producing witnesses with that cannot be found: has been given the authority to conduct such search. The Official knowledge of the events leading to When Records Cannot Be Located: the adjournment. At the hearing, the Custodian and the qualifications witness for the defendant acknowl- The City is cautioned that, in the of the affiant (if not the official edged that the City requested the final event said records cannot be locat- custodian) must be identified and adjournment, in violation of the court’s ed, that an affidavit, which com- described in detail. In addition, conditional order, and the defendant plies with the conditions set forth a copy of the law, rule or other was precluded from putting in any herein, must be served on plaintiff document pursuant to which said testimony on the issue of liability.18 and filed with the court. Said affi- affiant was designated and autho- In addition, the court imposed a mon- davit must be made by the cus- rized to conduct said search must etary penalty of $1,500 upon the defen- todian of such records or by such be appended; dant to reimburse the plaintiff for the other person duly designated by (2) Diligent Search Efforts. additional motion practice.19 law to be a substitute custodian or The affiant must provide a detailed Where the defendant, post-note of person charged with the obligation description of the “diligent and rea- issue and approximately seven weeks to preserve, maintain, store and sonable efforts” made to locate and before trial, belatedly produced certain search for said records. At a mini- produce said reports and records disclosure that had previously been demanded, and identified a surprise witness, the court denied the plain- tiff’s request to strike the defendant’s answer, but precluded the use at trial, of the belatedly produced disclosure.20 The court was not persuaded by the defendant’s explanation for the late witness exchange: The surprise witness, Mr. Bress, appears to be both an eyewitness and a notice witness under the authorities cited above. The only excuse offered by defendant for not identifying the witness in a timely manner was that the defen- dant has a heavy caseload. Under the circumstances presented, this excuse is insufficient in view of the nature of the untimely disclosure, which goes to the very heart of the issues involved in this action.21 A final decision of Justice Victor addresses what he titled “A Recurring Problem Requiring a Proactive Solution.”22 The problem? “There appears to be an increasing ‘inability’ on the part of some municipal depart- ments and agencies to locate and pro- vide public records which are clearly discoverable.”23 The court imposed a conditional order of dismissal upon the City, with dismissal to occur
NYSBA Journal | November/December 2007 | 25 including the date, time and place and storage of reports and other 3. Id. at 718. for each search conducted; records, made by an employee or 4. Id. (citations omitted). (3) Reason For Absence. other person charged with the obli- 5. Figdor v. City of New York, 33 A.D.3d 560, 561, The affiant must provide a mean- gation to make the said report and 823 N.Y.S.2d 385 (1st Dep’t 2006) (citation omitted). ingful explanation as to why the record, must be identified and a 6. 39 A.D.3d 601, 834 N.Y.S.2d 272 (2d Dep’t 2007). said reports and records are not copy of said rules and regulations now available; and that explana- must be made available and/or 7. Id. at 602 (citations omitted). tion, at a minimum, must include appended as an exhibit.24 8. See, e.g., Kihl v. Pfeffer, 94 N.Y.2d 118, 700 N.Y.S.2d 87 (1999). the information set forth, below; The court also specified the steps 9. 33 A.D.3d at 562. (4) The Chain of Custody. the defendant was to take when docu- 10. 10 Misc. 3d 1059(A), 809 N.Y.S.2d 483 (Sup. Ct., The affiant must provide the ments were located: Bronx Co. 2005). identity of the person or persons When discoverable business 11. Id. at *3. who created the said reports and records and reports are found they 12. 15 Misc. 3d 1127(A), 841 N.Y.S.2d 219 (Sup. Ct., records as well as all other persons must be made available, together Bronx Co. 2007). in the authorized chain of custody; with a certification, which com- 13. Id. at *5. and if unknown an explanation plies in all respects with CPLR 14. 15 Misc. 3d 1121(A), 839 N.Y.S.2d 436 (Sup. Ct., must be provided; Rule 3122(a) set forth above.25 Bronx Co. 2007). (5) Last Known Possessor. This model is a significant contribu- 15. Id. at *4. The affiant must provide the iden- tion to the bench and bar. 16. Id. tity of the person last in possession 17. 2007 N.Y. Misc. LEXIS 2793, 237 N.Y.L.J. 72 of same; and if unknown, an expla- Conclusion (Sup. Ct., Bronx Co. 2007). nation must be provided; All tales have an end, and this one 18. Wilson v. City of N.Y., 16 Misc.3d 1101(A), 841 N.Y.S.2d 825 (Sup. Ct., Bronx Co. 2007). (6) Storage Locations. is no exception. Approximately one All of the authorized locations week after writing the Lewis decision, 19. Id. where such reports and records are, Justice Victor was transferred out of 20. Crespo v. Metro. Transp. Auth., 15 Misc. 3d 1117(A), 839 N.Y.S.2d 432 (Sup. Ct., Bronx Co. or should have been, preserved, the City Part. We hope the practical 2007). maintained and stored in accor- and fair supervision of disclosure that 21. Id. at *4. dance with the applicable rules and evolved during his tenure in the City 22. Lewis v. City of N.Y., No. 23759/1997, 2007 WL regulations must be identified; Part will remain. ■ 2694528 at *1 (Sup. Ct., Bronx Co. Sept. 14, 2007). (7) The Applicable Rules and 23. Id. 1. See LexisNexis Answerguide: New York Civil Regulations. 24. Id. at **6–7. Disclosure § 1.12 (2007). All Rules and regulations relating 25. Id. at *7. to the preservation, maintenance 2. 31 A.D.3d 717, 818 N.Y.S.2d 469 (2d Dep’t 2006). 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
26 | November/December 2007 | NYSBA Journal From the NYSBA Bookstore
Updated Estate Planning and Will Drafting in New York
Editor-in-Chief: Michael E. O’Connor, Esq. DeLaney & O’Connor, LLP Syracuse, NY
Estate Planning and Will Drafting in New York provides an overview of the complex rules and considerations involved in the various aspects of estate planning in New York State. Each chapter has been brought completely up to date for the 2006 revision. Several chapters – includ- ing “New York Estate and Gift Taxes” and “Marital Deduction” have been totally revised for this update. Forms available on CD Written by practitioners who specialize in the field, Estate Planning is a comprehensive text that will benefit those who are just entering this Book Prices growing area. Experienced practitioners will also benefit from the 2006 • 822 pp., loose-leaf practical guidance offered by their colleagues, and use this book as a PN: 4095 (includes 2006 update) text of first reference for areas with which they may not be as familiar. NYSBA Members $125 Non-Members $160 Contents At-a-Glance Estate Planning Overview 2006 Update (available to past purchasers only) Federal Estate and Gift Taxation: An Overview PN: 50953 New York Estate and Gift Taxes NYSBA Members $75 Fundamentals of Will Drafting Non-Members $95 Marital Deduction/Credit Shelter Drafting Book and CD Prices Revocable Trusts 2006 • PN: 4095C Lifetime Gifts and Trusts for Minors NYSBA Members $175 IRAs and Qualified Plans—Tax, Medicaid and Planning Issues Non-Members $210 Estate Planning with Life Insurance Dealing with Second or Troubled Marriages CD Prices PN: 60955 Planning for Client Incapacity NYSBA Members $95 Long-Term Care Insurance in New York Non-Members $115 Practice Development and Ethical Issues
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. Get the Information Edge NEW YORK STATE BAR ASSOCIATION 1.800.582.2452 www.nysba.org/pubs Mention Code: PUB0146 New Scrutiny on Tax Deduction of Settlements By Robert W. Wood
he Internal Revenue Service issues a dizzying array survival skill. Yet, with the increasing importance of mak- of guidance. There are various types of regulations ing payments to the government, it would be wise to read T(final, proposed, and temporary), revenue rulings, the government’s latest foray into the high-stakes topic of private letter rulings, field service advice, notices, actions government settlement deductibility. on decision, technical advice memoranda, audit guide- lines, and so on. All of these pieces of guidance are not Not Freud’s IDD of equal weight and some are, technically speaking, not On May 30, 2007, the Service released an Industry even treated as authority. The truth is that tax practitio- Director Directive (IDD) on the tax deductibility of ners read and rely on much of this guidance regardless of government settlements. The directive comes from the its denomination. IRS’s Large and Mid-sized Business Division (LMSB). It Indeed, it has been more than a quarter century since is labeled “Directive Number One,” which, presumably, the U.S. Supreme Court cited to letter rulings.1 There was means there may be others.3 Because it is formatted as considerable hubbub after that and the Service has taken a memorandum, the “from” line reads “John Risacher, steps to try to make it less likely that taxpayers will rely Industry Director, Retailers, Food, Pharmaceuticals and on informal guidance. Through nearly endless litigation Healthcare.” The memo is directed to “Industry Directors, under the Freedom of Information Act, tax analysts have Director, Field Specialists, Pre-filing and Technical done an incredible job of freeing up this information from Guidance, Director, International Compliance Strategy the IRS when, at times, the IRS has shown indications it and Policy, and Director of Examination, SBSE.” only wants to make certain guidance public.2 The IDD provides field direction as to the deduct- The Internet offers virtually everyone access to an ibility of settlements with a government agency. The incredible array of official as well as unofficial informa- battleground is the Maginot line between deductibility as tion. Today, I find that even fairly unsophisticated clients a business expense on the one hand and a nondeductible are reading IRS guidance. Not too many years ago only fine or penalty treatment under 26 U.S.C. § 162(f) on the tax professionals had ready access to such information. As a result of this evolution of information accessibility there is a tendency to become overwhelmed and thus not ROBERT W. WOOD practices law with Wood & Porter in San Francisco and to wade through certain regulation releases, proposed is the author of Taxation of Damage Awards and Settlement Payments. legislation and unofficial guidance like audit directives Mr. Wood’s practice focuses primarily on corporate, partnership and (e.g., private letter rulings). The sheer volume of what individual tax matters. He received his law degree from the University of there is to read has a chilling effect on what many of us Chicago and an undergraduate degree from Humboldt State University. do read. Becoming a selective reader may be a modern
28 | November/December 2007 | NYSBA Journal other. It is hardly surprising that the government would As final details of the $615 million settlement were ham- be looking at this question. After all, one cannot walk by mered out, tax issues took center stage. In July 2006, a newsstand without the latest government settlement Senators Grassley, McCain, and Warner sent a letter to screaming its presence from the headlines; the govern- Attorney General Alberto Gonzales expressing outrage at ment counts on an in terrorem effect on others in this the possibility that Boeing could deduct the $615 million. respect. Allowing the Boeing settlement to be tax deductible, the Oddly enough, the IDD is not clear on its face. It senators said, would result in “leaving the American tax- elevates deductions claimed for False Claims Act and payer to effectively subsidize its misconduct.”5 EPA cases to Tier I issue status. Tier I issues are of high The three senators made it clear they were shocked strategic importance to LMSB and are supposed to have and outraged about the possibility that Boeing could a significant impact on one or more industries. The fact legitimately whittle down the net after-tax “penalty” that the IDD now treats these settlement deductions as with a deduction that effectively is a taxpayer’s expense. Tier I issues is significant, and makes the IDD of greater McCain and Grassley had raised similar concerns in 2003 importance. about a $1.4 billion settlement with several Wall Street The background of this IRS memorandum sets the firms involved in allegedly biased reports issued by their stage. Settlements are enforcement tools used by gov- research departments.6 Some of that huge settlement was ernmental agencies to resolve violations of law and to deductible. Indeed, $432.5 million of it went to finance punish companies short of going to court. According to independent research and $80 million of it was to finance the IRS, the settlement payment can include compensa- investor education programs.7 tory amounts, punitive payments or a combination of Interestingly, a GAO study found that four large the two. Settlements addressed in this memorandum federal agencies (including the Justice Department) do include those with the Department of Justice under the not negotiate with companies over whether settlement False Claims Act and with the Environmental Protection payments are tax deductible. Instead, the GAO said, the Agency (EPA) for supplemental or beneficial environ- agencies believe that is the IRS’s job.8 On July 18, 2006 mental projects. Yet the preamble to the IDD states that, Senator Grassley questioned Gonzales: outside the context of Department of Justice (DOJ) and I am very troubled that . . . DOJ was completely EPA settlements, its principles can apply to any settle- blind as to the real amount of the penalty, that is, the ment between a governmental entity and a defendant after-tax amount. To have a situation where the fed- under any law in which a penalty can be assessed. Note eral government is negotiating a settlement without that this penalty “can” be assessed, not that it actually will understanding what the real settlement amount will be assessed or that it has been assessed. be, the after-tax amount, is embarrassing. . . . It is actu- Additionally, it is not surprising that the Government ally worse that DOJ doesn’t even know what the tax Accounting Office (GAO) suggests that most taxpayers treatment is of the Boeing settlement. It tells me that DOJ lawyers gave away 35 percent of the store without deduct the entire civil settlement amount, despite the fact that DOJ records reveal that almost every settled case includes substan- tial penalties. Settlement may be all about issues of perception. Plainly, the payor and the payee settling a dispute may not agree on everything, including the degree of exposure the payor faces for potential fines and penalties.
Publicity Wars The IDD also reveals that the gov- ernment settles cases without regard to the tax consequences of a pay- ment, which hardly seems a revela- tion. Recall the huge flap that devel- oped over Boeing’s 2006 settlement and its tax benefits. In mid-2006, Boeing settled the largest “penalty” ever imposed on a military contractor for weapons program improprieties.4
NYSBA Journal | November/December 2007 | 29 even knowing it. And let me make sure you under- Settlements and Taxes stand one matter, the tax law in this area is quite clear: It is difficult to read the IRS’s recent IDD without reflect- a fine or penalty is not deductible. If the government ing on the controversy over Boeing’s 2006 settlement. clearly states it is a fine or penalty, it is not deductible. Perhaps the IRS memorandum stating that the govern- It is when the lawyers start getting out their sharp pen- ment does not pay attention to tax language is meant cils to find the gray areas that the trouble starts.9 to be defiant. In any case, the IDD states that settlement The Justice Department formally responded to language is typically neutral as to whether a portion of Grassley, stating that the Boeing settlement had been the settlement constitutes a penalty. fully signed on June 30, 2006, which was before Grassley Interestingly, up until some point in 2005, many DOJ waged his complaint. The Justice Department also noted settlement agreements apparently included a statement that, as a matter of policy, its agreements are “tax neutral” that “[t]he parties agree that this agreement is not puni- and leave the difficult issues of deductibility to the exper- tive in purpose or effect.” As a taxpayer, that would make tise of IRS tax lawyers. In fact, the Justice Department me think the payment is entirely compensatory. The IRS, letter to Grassley went on to state: on the other hand, suggests that this phrase relates to It is the Department’s policy and practice in settling double jeopardy under the Constitution and has no bear- fraud investigations to remain tax neutral and defer ing on tax issues.12 those issues to consideration by the IRS after settle- The memorandum notes the nature of Department ment. The Department and the IRS agreed some time of Justice and EPA settlements in cursory fashion. With ago that this approach was both practicable and respect to the EPA, the IDD notes that a portion of the appropriate. . . . As a general matter, compensatory civil penalty that was proposed for an environmental vio- damages are deductible while penalties are not. The lation is typically reduced in exchange for the company’s Department and the IRS have devised a system that agreement to perform a Supplemental Environmental routinely provides the IRS the information it needs Project (SEP). The memorandum notes that most defen- to ensure that taxpayers are treating their settlement payments properly. Indeed, this information-shar- dants will deduct the entire amount of the SEP as a § 162 ing arrangement is consistent with the Government expense or they will capitalize it and claim depreciation Accountability Office’s recommendation that the IRS deductions. Evidently, treating a portion as a nondeduct- “work with federal agencies that reach large civil ible penalty is rare. settlements to develop a cost effective permanent Turning to the False Claims Act, the stakes are even mechanism to notify [I]RS when such settlements larger. Settlements and judgments between 1987 and 2006 have been completed and to provide IRS with totaled over $18 billion, with $9 billion of this amount other settlement information that it deems useful between 2001 and 2006 alone. Here again, the concern is in ensuring the proper tax treatment of settlement what portion of these whopping payments defendants payments.”10 are deducting. Over 75% of the settled cases involve Responding to public attention, Boeing announced that it health care fraud. Approximately 14% of the FCA cases would not seek tax deductibility for the settlement – even involve defense contractors. The remaining 11% involve though the bulk of the settlement is arguably deductible. a broad range of other industries. Grassley responded: It’s good Boeing won’t seek a tax deduction for its Issue Spotting and Mandatory Audits $615 million settlement. That’s the right decision. The memorandum states flatly that examination is man- However, Boeing’s lawyers believed the settlement datory for FCA settlements of $10 million or more and was tax deductible. This tells me Department of Justice for SEP projects of $1 million or larger. Payments below lawyers failed to take into account the settlement’s tax these thresholds are not necessarily exempt. Examiners treatment and allowed Boeing’s lawyers to effectively are directed to use a risk analysis process to determine negotiate a 35 percent discount. Any junior lawyer if settlements and projects below these thresholds merit knows to look at a settlement’s tax treatment, yet examination. Justice lawyers were asleep at the switch. That’s inex- Sensibly, the memorandum directs that the govern- cusable. The Justice Department has to pay attention ment attorneys involved in these settlements should to the tax treatment in these big settlements. . . . I’m glad we have this result, but we need the right result be key contacts in coordinating interviews and request every time. For that to happen, the Justice Department for records relevant to the particular settling taxpayer has to do a better job of paying attention to the tax involved. Since the identity of these companies is typi- consequences of settlements. In the meantime, I’ll keep cally no secret (most are covered by the media), the working to advance my legislation clarifying what is memorandum advises consideration to pre-filing agree- and isn’t deductible in settlements.11 ments with the taxpayer. The pre-filing agreement project may substantially cut back on what the Service perceives
30 | November/December 2007 | NYSBA Journal Proving motive as a trend in favor of immediate and 100% deductibility is tough but relevant here. for these settlements.
Nondeductible Fines and Penalties for filing false claims for payment with the federal gov- The memorandum reviews the language of §162(f) and ernment. The Navy contracts in question allegedly result- its regulations. Section 162(f) states succinctly that “no ed in a loss to the Navy of approximately $1.56 million. deduction shall be allowed . . . for any fine or similar pen- However, because of various potential liabilities, the set- alty paid to a government for the violation of any law.” tlement between Talley and the Justice Department was The regulations define fines and penalties as amounts $2.5 million. When the company deducted that amount, paid pursuant to a conviction or a plea of guilty (or the IRS asserted that the settlement was a nondeductible nolo contender) for a crime (either felony or mis- fine or penalty. demeanor) in a criminal proceeding; paid as a civil The Tax Court granted summary judgment for Talley, penalty imposed by federal, state or local law; paid in holding that the settlement payment was not a fine or settlement of the taxpayer’s actual or potential liability penalty, except for a very small amount ($1,885) that was for a fine or penalty (again, civil or criminal).13 deemed restitution. The Tax Court found the government Significantly, legal fees are exempt from this strict regi- had never suggested that it was attempting to exact a civil men. Legal fees, related expenses paid, or those incurred penalty. Noting that $2.5 million was less than double in defending a prosecution or civil action arising from a the alleged $1.56 million loss, the court inferred that the violation of the law imposing the fine or civil penalty are settlement was not intended to be penal or punitive, but deductible.14 rather to be compensatory. Whether a payment constitutes a nondeductible fine Unfortunately for the taxpayer, the Ninth Circuit or penalty depends on the purpose the specific pay- then reversed and remanded the case, concluding that ment was meant to serve. That, of course, is a tall order there was a material issue of fact and that the matter was where payments are made in a negotiated settlement. Yet, not ripe for summary judgment. It is useful to review the IDD mentions several technical advice memoranda the instruction the Ninth Circuit gave to the court on (TAMs), including 200502041.15 That TAM allocates a remand: False Claims Act settlement between a portion treated as If the $940,000 represents compensation to the govern- nondeductible under § 162(f), and a portion deductible as ment for its losses, the sum is deductible. If, however, compensatory damages. the $940,000 represents a payment of double damages In another TAM (No. 200629030),16 the Service con- [under the False Claims Act], it may not be deduct- cluded that a portion of the costs incurred for the per- ible. If the $940,000 represents a payment of double formance of an environmental project was comparable damages, a further genuine issue of fact exists as to to a nondeductible fine or similar penalty under § 162(f). whether the parties intended payment to compensate That meant this portion of the cost of performing the the government for its losses (deductible) or to punish 18 environmental project could not be included in the basis or deter Talley and Stencel (nondeductible). of the assets produced in the project (under 26 U.S.C. On remand, the Talley case is extraordinarily detailed, § 263A or 1012). referring to extremely specific findings of fact about many Although the IDD cites these TAMs, perhaps as of the developments occurring during the settlement of evidence that such nitty-gritty allocation issues can be the case. The Tax Court resolved the question of whether solved, the line between compensatory and noncompen- the parties intended the settlement to include double satory fines can be difficult to discern. Predictably, the damages under the False Claims Act. Even though the taxpayer has the burden of establishing the deductibility settlement agreement was silent on that point, the Tax of any payment. Court concluded that reflected the parties’ intent. Then, the Tax Court turned to the question of whether Motive of Payments the $940,000 double damage payment was intended to Proving motive is tough but relevant here. It may be diffi- compensate the government for its losses, to deter or to cult for the taxpayer to show that a fine is imposed with a punish. The taxpayer and the government were polarized, compensatory motive. Indeed, how does one find out the the taxpayer arguing that no portion of the $940,000 could motive of the government on any subject? How high the be considered a penalty and the government arguing that stakes are, of course, depends on the size of the fine and the entire amount was a penalty. The issue was whether the degree to which it is likely to be recurrent. the amount was intended to reimburse the government Several cases are particularly important in explor- for losses. The taxpayer noted that the government’s ing the purpose of a payment. The IDD mentions Talley actual losses exceeded $2.5 million, so the $940,000 was Industries, Inc. v. Commissioner,17 and it is worthy of note. merely a portion thereof and had to be regarded as a There, a company and several executives were indicted reimbursement.
NYSBA Journal | November/December 2007 | 31 Nevertheless, the Tax Court was not persuaded by the the taxpayer a deduction, the Allied-Signal court went wholesale nature of the payment; it noted that the settle- on to say, “would be to exalt artifice above reality and to ment was a compromise of numerous issues. There was deprive the statutory provision in question of all serious correspondence about the settlement offers, and the tax- purpose.”22 payer had attempted to state in the settlement agreement that the amounts would be treated as restitution. That the Audit Techniques government rejected this proposal led the Tax Court to The audit techniques discussion in the text of the IDD is conclude that the taxpayer failed to carry its burden of fairly breezy, noting that the facts and circumstances need showing an intent to remediate. to be developed and determined. But, the IDD includes For a second time, the Talley case went to the Ninth audit guidelines as attachments, one set of guidelines Circuit. There, in a brief opinion, the Ninth Circuit regarding False Claims Act settlements, and another for reviewed de novo the Tax Court’s conclusions of law and EPA cases. its factual findings for clear error. Finding no error in the Tax Court’s ruling, the Ninth Circuit again held that False Claims Act Settlements Talley failed to establish the compensatory nature of the The audit guidelines begin with the premise that almost disputed settlement.19 every taxpayer deducts the entire amount of each False Nondeductibility was also the order of the day in Claims Act settlement. Yet, the guidelines assert that a Allied-Signal.20 As the IDD notes, taxpayers make every portion generally represents a penalty. To determine if a attempt to avoid penalty characterization and to empha- penalty has been imposed and to what degree, the guide- size the remedial effects (or intent) of the payments.21 In lines require two primary questions to be answered: (1) Is
With these obvious questions, the guidelines exhort the examiner that the taxpayer must bear the burden of proving that it is entitled to deduct any portion of the settlement amount. addition to other payments, Allied-Signal made an $8 a portion of the settlement payment a penalty, and there- million payment into a nonprofit environmental fund. fore not deductible? (2) What amount is the penalty? The Tax Court determined that the entire payment to With these obvious questions, the guidelines exhort the endowment fund was nondeductible because the the examiner that the taxpayer must bear the burden of payment was made with the virtual guarantee that the proving that it is entitled to deduct any portion of the sentencing judge would reduce the criminal fine by at settlement amount. Examiners are told that DOJ press least that amount. The Tax Court rejected the company’s releases are issued on practically every case and are avail- argument that the payment was not a fine or penalty able on the DOJ Web site. Additionally, national and local because it did not serve to punish or deter, concluding newspapers are helpful. The organization “Taxpayers that the payment served a law enforcement purpose, not Against Fraud” gets an indirect plug because examiners a compensatory one. are told that the Taxpayers Against Fraud Web site touts every settlement. Warning Signal Once the case is identified, the procedure is for It is not surprising that the government victory in Allied- the Service to contact the DOJ and the examining IRS Signal features prominently in the IDD. The court’s employee then acts as liaison to the DOJ attorney who understanding in Allied-Signal that the proposed $13 handled the case. Interviews, requests for records, and million criminal fine would be reduced by the $8 million other protocols follow. Although the guidelines say that contribution led the Tax Court to famously hold that the no two cases are identical, the template for document $8 million payment was in substance a fine or similar pen- requests implies that all communications between DOJ, alty that was nondeductible under § 162(f). In our current the defendant, and its representatives and employees (let- era of increased focus on substance over form, and given ters, memos, e-mail, etc.) are needed. the anti-tax shelter rhetoric that often now permeates tax Significantly, the guidelines state that initial letters cases, Allied-Signal was ahead of its time. often formalize the position of the DOJ that “multiples” In fact, the IDD quotes Allied-Signal. The court sounded will be included in any settlement reached. The critical prophetic in stating that “while the form of the payment documents also include all computations and settlement does not necessarily fit within the letter of Section 162(f), proposals made by either side, in addition to everything in substance petitioner paid a criminal fine.” Allowing that led up to the resulting settlements. As to the meaning
32 | November/December 2007 | NYSBA Journal of “multiple,” the guidelines make clear that DOJ uses the auditor in these cases becomes how to determine the this term when it means “penalty.” penalty amount that is mitigated (or forgiven) as a result Predictably, any correspondence which addresses tax of the taxpayer agreeing to perform an SEP. consequences is critical. The guidelines note that “it is The audit guidelines assert that sometimes this rare for this subject to be addressed, however, the request amount can be readily ascertained in the body of the for this type of correspondence needs to be made.” consent decree. Other times, extensive factual develop- Interestingly, discussions between the DOJ and the rela- ment of negotiation history must be conducted. The audit tor in the False Claims Act case (and the relator’s attor- guidelines suggest that the examiner should contact the ney) are also likely to be requested. It is hard to see how Environmental Technical Advisor once it is clear the tax- the interaction with the relator is relevant, but perhaps payer has agreed to perform an SEP. At this point, com- the Service is looking for a reference to “multiples” or plete copies of files, correspondence, and accompanying other buzzwords. documents are solicited from the taxpayer, the EPA, DOJ, Although audit guidelines need not contain taxpayer and other parties in the matter. Any penalty exposure arguments, it is noteworthy that these guidelines indicate computations prepared by the EPA, the taxpayer or the that taxpayers frequently argue that a total settlement taxpayer’s representative are solicited. was to compensate the government for losses such as Using Allied-Signal as a springboard, the memoran- over-billing. If the settlement is (as almost always occurs) dum concludes with the IRS’s summary position that: less than the initially publicized amount of the govern- (1) the taxpayer may not deduct the portion of costs ment losses, taxpayers (predictably) argue that since the incurred in performing an SEP that is “an amount analo- settlement is less than the losses DOJ reported, all of the gous to a nondeductible fine or similar penalty” under settlement must be “singles” and thus compensatory and § 162(f); (2) the taxpayer may not include in the basis of deductible. assets it produces the portion of the SEP cost that is “an In response, the audit guidelines state: “This argu- amount analogous to a fine or similar penalty”; and (3) ment has no real merit as it is not factually based and it is for FCA cases, the question is whether the settlement not representative of the final settlement agreement.”23 It includes a nondeductible penalty, and that determination is at this point in the audit guidelines that they reference can only be developed through communication, coordi- the ostensibly red herring phrase included in most DOJ nation and cooperation between the IRS and the DOJ. settlement agreements written prior to June, 2005. The offending (now deleted) phrase is: “The parties agree Conclusions that this agreement is not punitive in purpose or effect.” These summary conclusions in the IDD are ultimately not Taxpayers understandably argue that this sentence means very helpful, but they are just snippets. The big question what it says, but the IRS audit guidelines state that DOJ for EPA cases becomes just what is an amount “analo- had included this phrase relating only to double-jeopardy gous” to a fine or similar penalty. With slightly different under the Constitution, and that it has no meaning for tax verbiage, the same question applies to FCA cases. Despite purposes.24 Senator Grassley’s exhortations, if the Justice Department (and the EPA) does not attempt to address the pertinent EPA tax questions, then these issues are probably not going to The audit guidelines for environmental violation enforce- be any easier to resolve. ment settlements begin with a description of the EPA The audit guidelines, and the intense focus on factual penalty framework. EPA settlements are far more likely development, suggest there will be a greater emphasis on to expressly address tax issues than False Claims Act the legal background and dynamic of the dispute than cases. Indeed, there is often a consent decree lodged in ever before. What does seem clear is that the IDD’s focus federal court that expressly includes three major compo- on getting information from the Justice Department or nents: (1) a civil penalty amount that is separately stated an EPA lawyer suggests after-the-fact, interagency pow- and typically designated as nondeductible for income wows are occurring. Indeed, it may mean that the IRS has tax purposes; (2) injunctive relief that covers compliance a chance to help mold the tax position in arrears and to projects; and (3) Supplemental Environmental Projects help frame what the intent of the settlement might have that are voluntary projects incorporated into a consent been. decree in order to negotiate a significant reduction in I am not suggesting this is improper, but it is a proposed penalties. little troubling to think that, although Senator Grassley’s According to the audit guidelines, only a portion exhortations cannot compel DOJ personnel to consider of the SEP will typically be used to reduce the penalty tax issues in framing settlements, the IRS can help DOJ amount. Thus, the actual amount paid for an SEP and a (and EPA) do so later. Couple this with the obvious fact reduced penalty may total to a figure greater than paying (oft-repeated in the IDD) that the burden is on the tax- the original proposed civil penalty. The big question for payer to establish deductibility, then the resulting mix
NYSBA Journal | November/December 2007 | 33 foreshadows a more subtle assault on the deductibility of 7. Id. government settlements. 8. Id. It is unknown whether the IDD is a direct response to 9. Doc 2006-13587, 2006 TNT 138-17. the widely publicized discussions about the lack of coop- 10. Letter from Assistant Attorney General William Moshella to Sen. Charles eration between the IRS and DOJ, and the criticism lev- Grassley (quoting GAO, Tax Administration: Systematic Information Sharing Would Help IRS Determine the Deductibility of Civil Settlement Payments, eled at government lawyers that they (inappropriately) GAO-05-747, p. 26) (July 14, 2006). failed to take tax considerations into account in reaching 11. U.S. Senate Committee on Finance Memorandum to Reporters and settlements.25 Still, it is hard not to connect the dots. It Editors, from Jill Gerber for Grassley, regarding Boeing’s government settle- does not seem an unfair reading of the IDD to suggest ment, potential deductibility (July 26, 2006). that, rather than an up-front tax discussion at settlement 12. LMSB-04-0507-042, Attachment I. time, the IRS gets to divine intent after the fact. 13. Treas. Reg. § 1.162-21(b)(1). Then, the IRS can rely on the systematic advantage 14. Treas. Reg. § 1.162-21(b)(2). represented by the rule that the taxpayer must carry the 15. LMSB-04-0507-042. burden of proving that any portion of the settlement is 16. Id. deductible. In any event, the IDD may portend increased 17. 1994 WL 695434 (U.S. Tax Ct. Dec. 13, 1994), rev’d, remanded, 116 F.3d 382 scrutiny on settlements and on deductibility in the (9th Cir. 1997). future. ■ 18. Talley Indus., 116 F.3d at 387. 19. See Talley Indus., Inc. v. Comm’r, 2001 WL 1085039 (9th Cir. Sept. 17, 2001), 1. See Rowan Cos. v. United States, 452 U.S. 247 (1981). aff’g 1999 WL 407454 (U.S. Tax Ct. June 13, 1999). 2. See Tax Analysts v. IRS, 416 F. Supp. 2d 119 (D.D.C. 2006); Tax Analysts v. 20. Allied-Signal, Inc. v. C.I.R., 1992 WL 67399 (U.S. Tax Ct. Apr. 6, 1992), aff’d, IRS, 117 F.3d 607 (D.C. Cir. 1997); Tax Analysts v. IRS, 214 F.3d 179 (D.C. Cir. 54 F.3d 767 (3d Cir. 1995); William L. Raby, When Will Public Policy Bar Tax 2000). Deductions for Payments to Government?, Tax Notes, Mar. 27, 1995, p. 1995. 3. See Memorandum from the I.R.S. on Government Settlements, LMSB-04- 21. See William L. Raby, Two Wrongs Make a Right: The IRS View of Environmental 0507-042 (May 30, 2007). Cleanup Costs, Tax Notes, May 24, 1993, p. 1091; Raby, supra note 20. 4. See Andy Pasztor, Boeing to Settle Federal Probes for $615 Million, Wall St. J., 22. Allied-Signal, 1992 WL 67399 . May 15, 2006, p. A1. 23. LMSB-04-0507-042, Attachment I. 5. See Leslie Wayne, 3 Senators Protest Possible Tax Deduction For Boeing in 24. Id. Settling US Case, N.Y. Times, July 7, 2006, p. C3. 25. See text accompanying notes 6–12, supra. 6. Id.
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34 | November/December 2007 | NYSBA Journal How Not to Govern: Lessons From the Report to the Board of Regents of the Smithsonian Institution By Lesley Friedman Rosenthal
hat does a nonprofit cultural institution owe Grassley (R-Iowa), the Ranking Minority Member of to the general public and its funders by way of the Senate Finance Committee, put questions and docu- Wgood governance? What does the institution’s ment requests to the Institution. The U.S. Senate froze a board owe to the institution by way of vision and over- $17 million appropriations increase for the Smithsonian, sight? What does senior management owe to the board by citing Small’s compensation as excessive. On March way of accountability? What systems should be in place to LESLEY FRIEDMAN ROSENTHAL ([email protected]) is Vice assure adequate checks and balances, and what happens President, General Counsel and Secretary of Lincoln Center for the when these systems are not in place or not enforced? Performing Arts, Inc. She is immediate past chair of the Commercial and An independent review committee recently delivered Federal Litigation Section of the New York State Bar Association. She a thoroughgoing and scathing critique of governance and received her law degree from Harvard Law School, and she received management practices at the Smithsonian Institution. her undergraduate degree, magna cum laude and Phi Beta Kappa, from Questions surrounding the compensation and business Harvard College. The author is indebted to Reynold Levy, President of conduct of Lawrence M. Small, the Secretary (as the Lincoln Center, Prof. Harvey J. Goldschmid of Columbia Law School, Institution’s Chief Executive is called), cropped up in and Ira M. Millstein of Weil Gotshal & Manges, and the Yale School of press and other accounts as early as 2001, just one year Management Center for Corporate Governance and Performance for into the Secretary’s tenure, and persisted and became reviewing this article in draft. more pervasive over time. By early 2007, Senator Charles
NYSBA Journal | November/December 2007 | 35 26, Small resigned from his position.1 Ultimately the an Acting Inspector General who allowed themselves to Chairman of the Board’s Executive Committee appointed be marginalized by the Secretary from direct and proper the Independent Review Committee,2 which delivered its reportage to the Board. report on June 19, 2007. The findings of the Independent Review Committee The Unchecked Excesses of the Chief Executive were stark and unflinching. Among them: The Committee reported a number of examples of the • The total compensation of the Secretary, Lawrence Secretary’s excesses and the manner in which they went Small, at just under $1 million this year, was exces- unchecked. sive compared to that of his predecessor, his peers at other institutions, and his subordinates, especially Salary given his performance; his expenses were under- Mr. Small negotiated a high starting salary with just a documented, and his perks (including lavish travel small number of Regents, which was neither disclosed expenses for himself and his wife) were dispropor- timely to nor formally approved by the Board. The tionate for a nonprofit organization funded primar- handsome starting salary was further enhanced at the ily by taxpayer dollars. Moreover, the compensation, outset by a sizable housing allowance, ostensibly for expenses and perks were under-disclosed to the the purpose of hosting Smithsonian business and social Smithsonian Board; functions. Those functions hardly materialized, but the • The Secretary’s management of the Institution was terms of the housing allowance were continued and even “secretive,” and his style of interacting with the increased. Indeed, the recordkeeping requirements for Board was “imperialistic” and “insular.” He, and eligibility for the housing allowance were later relaxed not the Board, dominated the setting of policy and – upon Mr. Small’s direction to management under his strategic direction. He actively forbade employees direct supervisory control and, again, without full Board from sharing concerns with the Regents, even pro- review – such that no actual expenses need be incurred hibited the General Counsel/Chief Ethics Officer, for the allowance to be paid. This arrangement, together the Inspector General and the Chief Financial with other “noncompensation” arrangements such as Officer from contacting the Board directly. payments in lieu of pension equal to 17% of his annual • Both the Secretary and the Deputy Secretary, Sheila base pay, and first-class air travel for the Secretary and his P. Burke, were absent for substantial periods due to wife “when appropriate,” were found by the Committee vacation, compensated service on corporate boards, to be a mere “‘packaging device’ for delivering Mr. Small and uncompensated service to nonprofit entities. additional compensation in a manner that would conceal The absences of the Smithsonian’s first- and second- the true size of his pay.”3 His true total compensation far in-command totaled 403 and 546 days, respectively, exceeded that of his predecessor and that of an appropri- over a six- to six-and-a-half-year period. Their ate peer group of comparitors.4 outside compensation totaled close to $6 million The Committee also noted the highhanded manner in and over $7 million, respectively, during that same which these compensation excesses were carried out. Mr. period. These facts alone were sufficient to call into Small secured for himself a 45% increase in base salary in question where these executives placed their pri- one year, between 2001 and 2002, by ordering and then mary loyalties. Moreover, one or more of their board manipulating a compensation study by an outside con- memberships, particularly with Chubb Corporation, sultant. He went so far as to dictate the comparables for from whom the Institution purchases insurance, the outside consultant to use and the percentile that was created potential or actual conflicts of interest that to be referenced. The resulting recommended increase were not properly reviewed by the Institution’s was passed through the Executive Committee but not General Counsel or vetted by the Board or its Audit the full Board, contrary to the Smithsonian’s governing Committee on an ongoing basis. documents.5 • Smithsonian Business Ventures, the division respon- Similar activities occurred in 2002, 2004 and 2006. sible for managing the commercial activities of the The pattern continued: an outside compensation firm Smithsonian, was declining in revenue while sala- was retained by management, not the Board or its ries and expenses increased, and the division lacked Compensation Committee; and the peer group was deter- adequate oversight by both senior management and mined by management, with no input from the Regents the Board. or from the consultants, who were merely to “crunch the The Committee’s 100-plus page report (plus some 41 numbers.”6 Indeed, the consultants never met with the exhibits) reveals a toxic combination of unchecked arro- Smithsonian’s Compensation Committee without Mr. gance by the Chief Executive Officer, a relatively disen- Small and Ms. Burke present. Ultimately, Mr. Small’s total gaged Board, and a dysfunctional senior staff structure, compensation package jumped from $536,100 in 2000 to including a General Counsel, Chief Financial Officer and $915,698 in 2007.
36 | November/December 2007 | NYSBA Journal Nothing in Mr. Small’s performance was found to Other Matters justify these figures. Indeed, according to the Committee, The Institution has been subject to criticism throughout private contributions to the Smithsonian declined during the Small administration on arguably overly restrictive the Small administration. Business revenue, including conditions set by donors on certain gifts, and the scope from Smithsonian Business Ventures (SBV), dropped by and content of some shows and displays.8 In response, 10% over the same period. Both of these declines meant the Regents revised grant approval processes to include the institution would rely even more heavily on the fed- Board approval in certain instances, but there was no gen- eral government for funds. Certain business deals that eral overhaul of the Board’s oversight role on program, SBV did enter into, such as a semi-exclusive television policy and long-range planning until the 2007 crisis that contract with Showtime Networks Inc. for 30 years, were led to the resignation of the Secretary, the Senate Finance criticized as being unfair to researchers and scholars. Committee inquiry, and the formation of a governance committee and the Independent Review Committee. Excessive Absences and Outside Compensation Mr. Small took off 403 days in six years, of which 339 were An Antiquated Board Structure and vacation days and 64 were work days missed for non- Disengaged Members Smithsonian obligations, such as attending Chubb and The Independent Review Committee characterized the Marriott board meetings. His Deputy, Ms. Burke, took off Smithsonian Board structure as “antiquated and in need 546 days in six and a half years, including 130 vacation of reform.”9 The Board of Regents is composed of just 17 days and 416 work days missed for non-Smithsonian persons: the Vice President of the United States, the Chief obligations. Ms. Burke served on the boards of Chubb and Justice of the United States, three Members of the Senate, Wellpoint, Inc., as well as the Kaiser Family Foundation, three Members of the House of Representatives, and nine
The Committee expressed deep concern about the executives’ ability to devote due energies and loyalty to their primary employer, the Smithsonian.
the ABIM Foundation, and Community Health Systems. other persons selected by joint resolution of Congress.10 Part of her outside hours also included unpaid service to By tradition, the Chief Justice serves as Chancellor. a number of nonprofit organizations such as teaching at This structure assures quite a distinguished Board to Harvard University’s Kennedy School of Government in carry out the noble mission of the Institute;11 but given Cambridge, Massachusetts, and several other institutions the heavy public responsibilities of the many public offi- of higher learning, and service on other advisory boards cials on the Board towards other primary constituents or committees in the health policy field.7 and stakeholders, it is almost by definition not a terribly The Committee expressed deep concern about the engaged body. Moreover, of the nine public members, executives’ ability to devote due energies and loyalty to only two of them may be local residents of Washington their primary employer, the Smithsonian, under these D.C.; the other seven must be from other states, virtu- circumstances. Also of concern was that there was no ally assuring at least some degree of geographic distance policy in place limiting leave, and the Board was evi- from the Institution’s central locus of activity. Thus, dently unaware of both the lack of a leave policy and while the prestige of the organization attracts extremely these frequent absences. distinguished figures from the for-profit, nonprofit and Mr. Small’s outside compensation during his six-year government sectors to serve on the Board, it is structur- tenure at the Smithsonian totaled nearly $6 million, essen- ally not well suited to act in accordance with modern tially from service on the boards of Chubb and Marriott. expectations of oversight. Ms. Burke’s outside compensation for her board service, Thus, it is no surprise that the Committee found including options, was estimated to be worth about $7.2 “[h]istorically the Smithsonian Board of Regents appears million from 2000 through 2007. The size of these figures, not to have taken on a strong oversight role.”12 The particularly when compared to these executives’ salaries Committee concluded that roles of the public officials for their purportedly full-time work at the Smithsonian, should be clarified, and perhaps the number of “lay” again calls into question where their loyalties were likely leaders expanded, so that the Board may properly dis- to lie. charge its fiduciary function.
NYSBA Journal | November/December 2007 | 37 Moreover, the Smithsonian is a complex institution and Review, Governance and Compensation, and including some of the nation’s leading museums, research Human Resources, and these should include, if nec- centers, a zoo, retail shops, restaurants and buildings. In essary, non-Board members with special expertise. order for the Board to provide proper oversight and Committees that include non-Board members may strategic guidance, the Committee concluded that future be constituted as committees of the corporation Board candidates should possess expertise in financial rather than as committees of the Board. management, investment strategies, audit functions, gov- 2. Prominent persons – donors, artists, scientists, pub- ernance, compensation and facilities management, as lic officials and others – with an interest in the orga- well as an interest in and a devotion to the arts and sci- nization’s program but lacking the time, availability ences.13 or expertise to provide meaningful oversight may Ultimately, concurrent with the appointment of the serve the organization in a non-fiduciary capacity, Independent Review Committee, the Board created a such as on an honorary or advisory board or on pro- standing Regents’ Governance Committee with a man- fessional councils. date to swiftly and comprehensively review Smithsonian 3. The Board should meet regularly – the Committee policies and practices as well as determine how the Board recommends no less than once every other month, could better oversee the Institution. The Governance although reasonable practices differ – and/or there Committee has now made recommendations to strength- should be a robust Executive Committee that is en the Regents’ leadership and governance of the empowered, within legal limits, to discharge the Institution.14 The recommendations of the Governance duties of the Board between meetings. Where there Committee parallel many of the conclusions reached by is such an Executive Committee, its deliberations the Independent Review Committee: and actions should be promptly reported out to the Despite regular attendance by most Regents and active full Board for review. The minute-taking function is participation in meetings, in the end the Regents did not merely a ministerial or “housekeeping” matter, not provide the level of leadership and oversight that but a substantive responsibility that must be dis- they had intended. Contributing to the situation was charged assiduously. an agenda and information flow tightly controlled by 4. The Board must not permit a single executive to run the Office of the Secretary. Information leading to dif- and dominate Board meetings, set agendas, or deter- ficult and critical decisions was at times prepared and mine what information would be provided to Board presented in a summary fashion that did not encourage members. At meetings of the Board, there must be full and complete discussion. As a result, the Regents adequate opportunity for members to receive and were at times unable to thoroughly consider the major discuss reports from not only the Chief Executive, and strategic issues facing the Institution.15 but also, as appropriate, directly from program Lessons Learned From the Smithsonian Example: executives, other in-house and outside profession- How Not to Govern als, and independent consultants if necessary. Time Trustees, senior executives, academics and others inter- should be reserved for executive sessions, from ested in the not-for-profit sector may take away some which management should be excluded so that its lessons from the Smithsonian’s experience. Key lessons performance may be fully and freely discussed. for attentive students of the sector include: 5. Compensation and expenses of senior management, 1. Properly run organizations have an active govern- outside professional involvements, and transac- ing board with a vision and strategy for carrying tions with interested parties should all be regularly out the mission of the institution, and a Chair and reviewed by an Audit Committee and reported other Board-level leaders who can provide the time to the Board. Discussions of such matters should properly to oversee the carrying out of the mis- be documented for future and ongoing reference. sion. As remarkable an opportunity though it may Gatekeepers of the organization – general counsel be to have individuals of singular prominence and and corporate secretary, chief financial officer, out- importance serve in leadership roles on the Board side auditors, inspector general or the functional (such as, here, the Vice President and the Chief equivalent – e.g., an internal auditor – must be Justice), the interests of the organization are better assured independence and regular and direct access served by governing board members and a Chair to the Audit Committee and Board in order to prop- with the time and attention necessary to devote to erly carry out these functions. the fiduciary responsibilities of overseeing opera- 6. Executives’ service on outside boards, particularly tions and management. In addition, it is important for-profit boards, and other outside activities should that the Board be the right size and possess the time, be carefully and continuously monitored by an expertise and independence necessary to discharge Audit Committee or similar committee, because of its duties. Active committees should include Audit (a) the time commitments that may be involved;
38 | November/December 2007 | NYSBA Journal The biggest problem at the (b) the impact of compensated service, particularly Smithsonian may not have been where such compensation may be sizable relative to the employee’s compensation at the nonprofit insti- a lack of rules and procedures, tution; and (c) business relationships between the but a lack of enforcement. outside organization and the institution that may be, or appear to be, a conflict of interest. Similarly, with respect to executive compensation, Additional Observations readers should be wary of substituting their own judg- About the Committee Report ment for the judgments of persons with deep institutional The Smithsonian Institution and its Board have shown knowledge of the subject organization and its leadership admirable courage in undergoing a detailed and needs. It is not necessarily realistic to assume that an unflinching self-examination in such a public manner. institution, even one of our nation’s most august and The Committee’s affection for the Smithsonian is evident. respected nonprofits, will be able to attract top senior And, as noted above, the sector as a whole may benefit management talent just by the prestige of the organiza- from the insights of the Independent Review Committee tion alone. While the Committee would have expected and the Governance Committee. to see a substantially lower CEO salary because “serving Readers should be cautioned, however, not to over- as Secretary is an honor” and that “compensation levels generalize from the findings and recommendations of should reflect this,”19 it is also clear from the report that the Committee. The Smithsonian is a particularly visible the job of Secretary is enormously complex. Certainly nonprofit institution, but its governance failures should salaries in the nonprofit sector, even for demanding, com- not be taken as endemic to the sector as a whole. The plex and highly visible jobs such as senior executives of a sector is considered by many to be reasonably regulated major museum, university, hospital or cultural complex, by a combination of voluntary measures, state and local are nowhere near compensation levels for senior execu- law, industry self-regulatory bodies, watchdog reporting tives in positions of like responsibility in the Fortune 500. groups such as the Better Business Bureau and Guidestar, Nor should they be: most organizations’ budgets, donors and federal disclosure and accountability measures such and the general public – who subsidizes these organi- as the Internal Revenue Service Form 990 and rules zations directly through public grants and indirectly against excess benefit transactions.16 through the tax subsidy – will not permit it. Indeed, the Smithsonian itself was already subject to But trustee members of the organization’s compensa- external rules and internal procedures that could have tion committee, as informed by compensation consultants avoided many of the circumstances documented in the reporting directly to them, are much better situated to report, if they had just been properly deployed. Expenses assess the particulars of what they need to pay to attract were already required to be documented. Senior officials and retain suitable executives than anyone else. While and employees with contracting authority were already there are certain professions, particularly in the program required to complete conflict of interest forms every areas – curatorial and programming functions, certain year.17 Outside auditors and consultants were regularly academic fields, fundraising and the like – where the non- brought in to review the books and expenses as well as profit world presents the only or most obviously viable conduct regular executive compensation reviews. The career path, there are many other fields – legal, financial, Institution and its executives were already subject to investment, HR and labor relations, facilities manage- internal rules, such as bylaws, and external rules, such ment, marketing, and PR, just to name a few – where as Treasury Department regulations, regarding excess there is considerable competition from the for-profit labor benefit transactions. Evidently the internal gatekeepers markets that must be reckoned with. The need to attract as well as the external regulators were equally stymied by business-savvy executives to the nonprofit world only those inclined to exploit weaknesses in the system. becomes more compelling as more and more nonprofits The biggest problem at the Smithsonian may not have enter an entrepreneurial mode, growing their commercial been a lack of rules and procedures, but a lack of enforce- activities to improve their earned income streams in light ment and a lack of real Board oversight. Accordingly, of government funding cutbacks.20 the Committee’s final recommendation – that “achieving As a point of comparison, outside service provid- effective oversight and governance at nonprofit organiza- ers such as law firms, auditing firms, investment firms, tions may ultimately require legislative action”18 – may search firms, construction contractors and consulting be an overreaction to one, admittedly spectacular, failure. firms, are able to command full or close to full fees from Are new laws required or simply better enforcement of nonprofits, with some notable and much appreciated pro the existing ones, and a greater attentiveness by a more bono exceptions.21 These outside service professionals are reasonably constituted Board? not expected to perform their services primarily for the “honor” of it, even though they, too, may benefit psycho-
NYSBA Journal | November/December 2007 | 39 logically or reputationally from being associated with a 8. For example, in May 2001, Mr. Small negotiated a gift of $39 million from the Catherine B. Reynolds Foundation to finance a permanent exhibition at prestigious and beloved client organization. the National Museum of American History to commemorate the achievements The Committee’s concerns about outside activities of prominent Americans. The gift was criticized by Smithsonian curators and are also noted, but the lessons should not be taken too scholars who questioned the degree of control Ms. Reynolds would have over the project. Report at 69 (citing Jacqueline Trescott, Smithsonian Gifts with far. While the Secretary’s and Deputy Secretary’s vaca- Strings Alarm Some Scholars; Secretary’s Dealings with Big Donors Questioned by tions and absences as documented by the committee are Staff, Wash. Post, May 26, 2001 at C1). of genuine concern to the Smithsonian, it would not be 9. Report at 2. sound for other institutions reflexively to discourage 10. 20 U.S.C. § 42. service to outside companies or organizations as a result. 11. The Smithsonian is a trust instrumentality that was established by Congress in 1846 to hold in trust property donated by James Smithson and to Outside board service, whether for-profit or not-for- carry out the provisions of his will for the “increase and diffusion of knowl- profit, as the Committee notes, may indirectly benefit the edge.” The Smithsonian Act of August 10, 1846, as amended and codified, 20 primary institution in meaningful ways: by providing U.S.C. §§ 41–67. 12. Report at 3. access to prospective donors and corporate sponsors, 13. Report at 20. fresh perspectives and exposure to the ideas of leaders 14. Report of the Governance Committee, dated June 14, 2007, available at in other fields. Moreover, particularly regarding outside http://newsdesk.si.edu/releases/Governance_Committee_Report.pdf. nonprofit activities, perhaps the question should be ana- 15. Id. at 5. lyzed more broadly – for example, whether service to a 16. In the years following adoption of Sarbanes Oxley corporate governance mandates for publicly listed companies in the for-profit sector, there was a professional association or other nonprofit entity benefits great deal of discussion about adoption of SOX principles by state legislatures the entire sector, and accordingly may also benefit the for nonprofits. While many nonprofits adopted such measures voluntarily, institution itself. There should be reasonable limits to the such as updating Audit Committee charters and conflict of interest policies and instituting whistleblower policies, to date only one state – California – has number of outside boards an executive serves on, both in actually passed additional regulation. 22 terms of outside compensation and in terms of time, but 17. Conflict of interest questionnaires were to be collected and reviewed by those limits very much depend on the person, the outside the Smithsonian’s General Counsel, who also carried the title Chief Ethics entity and the nature of the involvement. Officer. However, in some years the questionnaires of the Secretary and other senior officials were not submitted to the Chief Ethics Officer, but rather kept The lessons of the Smithsonian should be noted well, within the Secretary’s immediate area. There was a duly constituted Audit and even by nonprofit organizations that have not experi- Review Committee that was charged with reviewing the disclosure forms each enced similar failures of governance and the attendant year, although evidently no one questioned the absence of questionnaires from the Secretary or the lack of disclosure of certain relationships that were clearly public criticism. In this post-Sarbanes Oxley era, stan- disclosable. dards of good governance in the nonprofit sector are rap- 18. Report at 107–08. idly evolving. The Smithsonian report both incorporates 19. Report at 14. those lessons and makes a significant contribution to that 20. See generally Nonprofit Law, Economic Challenges, and the Future of Charities, ■ ___ Fordham L. Rev. ___ (forthcoming 2007). continuing discussion. 21. Lincoln Center for the Performing Arts in New York City has harnessed the expertise of major law firms and in-house counsel departments, which provide 1. In June 2007, the Deputy Secretary of the Institution and the President of strategic and legal advice on a pro bono basis. L.F. Rosenthal, ‘Redeveloping’ Smithsonian Business Ventures, its for-profit arm, also announced their resig- Corporate Governance Structures: Not-for-Profit Governance During Major Capital nations. Projects, A Case Study at Lincoln Center for the Performing Arts, ___ Fordham L. 2. The Committee was chaired by Charles A. Bowsher, former Comptroller Rev. ___ (forthcoming 2007). General of the United States, and also included Stephen D. Potts of the Ethics 22. The National Association of Corporate Directors estimates that typical Resource Center and A.W. “Pete” Smith. The full report is available at http:// directors devote 250 hours a year to board-related work. smithsonianirc.org/images/FINAL_IRC_REPORT.pdf (“Report”). 3. Report at 4. 4. Section 4958 of the Internal Revenue Code (Intermediate Sanctions) impos- es a tax on excess benefits for tax-exempt nonprofits. Excess compensation (including bonuses, benefits and deferred compensation) may lead to excise taxes on the disqualified person (up to 25% of the excess benefit amount), as well as on organization managers who knowingly participate in the transac- tion (including individual board of compensation committee members who approve the payment), up to 10% of the excess benefit amount. Treas. Reg. § 53.4958-1 et seq. 5. According to the Committee, while it is generally a good idea to obtain and provide to Trustees comprehensive information on management com- pensation, the process here was subverted by management itself and “was not used by the Regents for a thorough discussion of compensation strategy or what would constitute reasonable compensation for these individuals.” Report at 47. 6. Report at 50. 7. Ms. Burke’s attorneys argued in a letter to the Committee that her outside board service, teaching and other non-Smithsonian activities were properly disclosed by her and known to the Board. Letter of Gibson Dunn & Crutcher LLP, to Charles A. Bowsher, dated June 7, 2007, annexed to Report as Exh. 35.
40 | November/December 2007 | NYSBA Journal 10 Practical Questions as a Client Faces Loan Default By Chester B. Salomon
ord of an existing client’s impending loan default are skilled in digging into the problems, a lawyer should may come in a variety of ways. With a client in ask the big questions about the client’s business and man- Wdenial, the attorney may have heard of the agement’s forthrightness, ability and desire to resolve the client’s troubles from another source. The loan may have issues. The president, CEO, CFO, controller and a top been called or a lawsuit may have been commenced or sales manager will have insights. Communications with threatened. Even the client’s lateness in payment of legal them normally will be protected under the attorney-client bills may suggest other delinquencies, including the loan. and the work-product privileges.1 However the client may learn of the possible default, several important business questions should be asked by 2. Where Has the Cash Gone? effective counsel. These questions go beyond examining A loan default signals a liquidity crisis. How did the com- the loan documents and conducting searches for UCC, pany get there? Did an unsuccessful new line of business tax, and suits/judgments filings. They relate to the big or a big litigation drain resources from an otherwise prof- picture: liquidity, competition in the market, manage- itable company? Did a customer delay payment, default ment and short-term and long-term fixes. Some of these on a large receivable or enter an insolvency proceeding? questions are sensitive for both the lawyer and the client Has competition or new technology affected the sale or because they touch upon management’s competency, pricing of the company’s products? Have key employees responsibility and capacity to work out of the problem. left or gone into competition? Are there money-losing While the client may appreciate sympathy and the prom- contracts, environmental problems or legacy liabilities to ise of steadfast support, it really needs direction. unions, pensions or retirees? The answers will affect your To give valuable service to a client, counsel must be advice to the client on the workout of the loan. prepared to provide clear analysis of the issues and solid advice about professionals who can assist. 3. Is the Business Worth Saving? Below are 10 practical questions that should be asked While management, ownership and other professionals in these circumstances. More questions will follow from must weigh in on this cosmic issue, the answer will affect the client’s answers. But these questions will help the cli- planning and discussions with the lender and trade credi- ent and counsel to focus and identify the best available solutions to the problems at hand. CHESTER B. SALOMON ([email protected]) is a shareholder and co-head of the Bankruptcy and Corporate Restructuring Group of Stevens & Lee 1. What’s the Company’s Big Picture? resident in New York City. He is a director of the American Bankruptcy This question temporarily puts to the side the narrow Institute. He earned his undergraduate degree from Columbia College legal issues. We are talking big picture – operationally and his JD and LLM (Taxation) degrees from New York University School and financially. Often it is helpful to both client and law- of Law. This article is based upon materials presented by the author at a yer to have the client prepare an outline of the problems New York State Bar Association CLE Program on May 10, 2007, in New and how they arose. While other professionals (such as York City, titled “Working Out and Litigating the Problem Loan.” turnaround consultants, crisis managers and accountants)
NYSBA Journal | November/December 2007 | 41 tors. If the probable answer is that the company cannot Some courts have held that a company need not be operate at a profit in the foreseeable future, still there may insolvent to trigger officer and director responsibility be options for the company – such as a sale of assets. to creditors and derivative liability – the company need only be in the undefined “zone of insolvency.”5 A recent 4. What’s Management’s Capacity to Address the Delaware Supreme Court decision held that creditors Company’s Problems? of an insolvent Delaware corporation may recover from Though it may have built and run a successful enterprise directors for breach of fiduciary duty only if they can meet over decades, management may not be flexible or knowl- the strict requirements of derivative suits, including the edgeable in talking with the lender and creditors about requirement that a plaintiff must hold a stake in the cor- the company’s problems and the impending loan default. poration at the time of the directors’ alleged wrongdoing. Default is not a one-dimensional issue. In addition to The decision states that a cause of action will not lie if the its lender, the company sooner or later will face prob- solvent corporation is in the “zone of insolvency.”6 The lems with suppliers, equipment lessors, customers or law varies by state, so officers and directors need to seek landlords. Management may have to dismiss long-time counsel and exercise caution in the “zone of insolvency.” employees or openly admit failure of a business plan. Such challenges to management can be overwhelming. 6. Has Ownership/Management Put Itself Signs of management’s lack of capacity may be denial, in Jeopardy? a disposition to put off creditors, unrealistic promises to If shareholders or management are unresponsive to creditors, and obsession with personal issues (bonus pay- creditors’ requests for accurate disclosure or have acted ments, personal guaranties, etc.) instead of focusing on in their self-interest to the prejudice of creditors, to save the big picture. the company the lawyer may urge the engagement of a crisis manager having credibility with the lender and 5. Is Management Conflicted? trade creditors. Unless a lender is holding substantial Potential conflicts are common. For example, manage- cash collateral provided by the company or guarantors, ment may have lent money to the company and may the lender generally wants to work with the company in be inclined to favor repayment of its loans over bank or reaching (a) a temporary solution to stabilize the com- trade debt. While equity in the company is under water, pany and (b) a long-term solution to rehabilitate or sell management may be tempted to bet for a home run with the company and get paid. the company’s diminished assets. Management may have Similarly, trade creditors do not want to lose suppli- signed personal guaranties of the problem loan or other ers or customers and equipment vendors are not eager company debt. In New York, the 10 largest sharehold- to take back their property. Landlords of above-market ers of a private corporation are liable for unpaid wages leases will want to work with the company while land- (which include vacation and severance pay owed to lords of below-market leases may prefer to relet their employees).2 Members of management may be “respon- property on better terms. If management has misled sible persons” who are liable for federal and state income, creditors or lost their confidence, the buffer role served FICA or sales taxes withheld by the company but not paid by an independent crisis manager will aid management over to the government.3 in making accurate and timely disclosure to creditors and Whether or not a palpable conflict exists, management negotiating a workout. must be counseled on its fiduciary duties. It’s black let- ter law that officers and directors of a solvent public or 7. How to Fix the Problems? non-public company owe fiduciary duties of loyalty, care How to fix a company’s problems depends on the busi- and good faith to the company and its shareholders. In ness circumstances and generally is beyond the role of New York courts have broadened their fiduciary duties to the lawyer. But as a leader of the rescue team the law- creditors once the company becomes insolvent.4 yer should aid management and other professionals to Two variations on the same theme are that upon insol- achieve a workout. vency the directors (a) become trustees for creditors or (b) may continue to manage under the business judgment Short-Term and Long-Term Fixes rule, which enables directors and officers to make good Short-term fixes include communication with creditors, faith judgments about risks they face. The two standards finding ways to staunch bleeding and improve liquidity, for determining insolvency include the “balance sheet” selecting and assisting a crisis manager, assuring critical test (fair value of assets less total of probable liabilities), vendors of the company’s viability and continuing pay- similar to N.Y. Debtor & Creditor Law § 270, or the “equi- ments, completing important projects, and obtaining new ty” test (inability to meet obligations as they become due credit from the lender, shareholders, customers, suppliers in the ordinary course of business). or others. Long-term fixes include restructuring or selling
42 | November/December 2007 | NYSBA Journal the company. Restructuring may include taking in a new 10. Can the Company Avoid Chapter 11? equity partner who will infuse the needed cash. If a lender has called the loan, a creditor has obtained judgment and is poised to enforce it, or multiple creditors Operational and Financial Fixes are all threatening action, there may be little alternative to Operational fixes generally relate to sales, purchases, filing a Chapter 11 petition to take advantage of the auto- plant, labor and related matters both in the near term matic stay under § 362 of the Bankruptcy Code. But filing and the long term. Financial fixes may entail adjustment isn’t solace to a company with a loan secured by accounts of debt, “terming out” of short-term debt, conversion of receivable and cash collateral. To use cash collateral debt to equity and restructuring the balance sheet. after filing a Chapter 11 petition, a debtor must obtain an order of the Bankruptcy Court granting the lender Crisis Manager and Chief Restructuring Officer “adequate protection” (defined under § 361) for the use of Hiring a crisis manager or chief restructuring officer will its collateral. Adequate protection usually entails paying enable competent management to devote time to the down debt and giving the lender replacement liens on business and avoid some of the distraction of the crisis. In receivables and property generated by the debtor after instances of management conflict, credibility problems, filing. A cash collateral stipulation and order, or debtor- or management difficulty in recognizing the problems in-possession (DIP) financing orders, require significant or implementing the solutions, the crisis manager plays professional services for the debtor and the lender. In an important role. Some crisis managers are affiliated Chapter 11 the lenders’ and creditors’ committee profes- with major accounting firms and others are boutiques. A sionals commonly are paid by the borrower. Management retired business executive can be effective. Often the com- is under constant scrutiny by the court, the United States pany engages an executive of the crisis manager to serve Trustee, and the Creditors’ Committee. as chief restructuring officer. Experience and credibility Transactions with insiders taking place years before with creditors are essential prerequisites in selecting a filing may be investigated. Virtually all non-ordinary crisis manager and CRO. course of business sales and other transactions require court approval, and a trustee may take over if manage- 8. What Are Sources of Short-Term Funding? ment impropriety is shown. Because of the many dis- As noted above, several sources are usually available closures, rules, pitfalls and possible adverse publicity of for short-term funding in a liquidity crisis, including Chapter 11, a company should file only as a last resort. Yet the lender, the shareholders and sometimes vendors and it is important to prepare for Chapter 11 in case negotia- customers. Other sources include hedge funds, private tions fail. If a restructuring is not achievable, the parties equity funds, “mezzanine” lenders (unsecured loans may want to provide for sale of the company’s assets, junior to senior secured debt) and “second lien” lenders including the lender’s collateral. Quite often the most (secured debt subordinate to senior secured debt). Recent advantageous sale is through § 363 of the Bankruptcy reversals in the debt markets will have the effect of limit- Code, which provides for asset sales free and clear of ing funding sources. claims, liens and encumbrances.
9. Has the Company Dealt Forthrightly With Its Conclusion Lenders and Creditors? Notice of an impending loan default should be taken The answer has both objective and subjective aspects. seriously. Management will be looking to the experience Perception of the creditors may control whether the com- and judgment of its trusted advisors and usually will pany must engage a crisis manager. Justly or unjustly, if not know the right questions to ask. By asking the “10 important creditors do not trust management, an inter- Practical Questions” counsel can begin to fulfill its duty mediary may be necessary to open a successful dialogue to its client to provide sound legal advice and put the cli- with the lender and creditors. Even before talking with ent on course toward a successful resolution. ■ creditors, the lawyer should look for signs of strained credibility, including whether the company has been 1. Fed. R. Evid. 501; CPLR 3101(c) (attorney work-product); CPLR 4503(a) (attorney-client privilege). party to significant litigation with creditors in the past 2. N.Y. Business Corporation Law § 630. and whether it is current on its tax debts and its financial 3. 26 U.S.C. § 6672(a) (Internal Revenue Code); N.Y. Tax Law § 1133(a). reporting. Past litigation suggests to creditors that man- 4. Clarkson Co. v. Shaheen, 660 F.2d 506, 512-13 (2d Cir. 1981), cert. denied, 455 agement is unable or unwilling to resolve its differences U.S. 990 (1982). by negotiation. Unpaid taxes suggest that management 5. See Geyer v. Ingersoll Publ’ns Co., 621 A.2d 784 (Del. Ch. 1992); Pereira v. has impermissibly “borrowed” from the government. If Cogan, 294 B.R. 449, 519–20 (S.D.N.Y. 2003), vacated sub nom. Pereira v. Farace, management does not have credibility, a crisis manager 413 F.3d 330 (2d Cir. 2005), cert. denied, 126 S. Ct. 2286 (2006). may be necessary. 6. N. Am. Catholic Educ. Programming Found. v. Clearwire Holdings, Inc., 2007 WL 1453705 (May 18, 2007).
NYSBA Journal | November/December 2007 | 43 BENTLEY KASSAL ([email protected]), a retired associ- ate justice of the Appellate Division, First Department, also served as a judge in the Civil Court, a justice of the Supreme Court, New York County and an associate judge at the New York Court of Appeals in 1985. He was a New York State Assemblyman for six years. He received his law degree from Harvard Law School in 1940 and has been counsel to the litigation department at Skadden, Arps, Slate, Meagher & Flom LLP since 1997. This is Judge Kassal’s fifth consecutive article on the subject of appellate statistics.
Update: Did the Appellate Odds Change in 2006? Statistics in State and Federal Courts By Bentley Kassal
ow many times have you heard a client ask, 3. Appellate Terms of the Supreme Court for the First “What are our chances on appeal?” One’s bra- and Second Departments of the Appellate Division Hvado1 or ego may trigger a quick favorable (the only two in New York State). response but there are indeed annual official court reports In addition, there are civil statistics for two United which, although in technical and numeric rhetoric, do States Courts of Appeals, the Second Circuit and the provide answers – but only if certain irrelevant statistics District of Columbia, with general comments. are omitted and we use a calculator to translate them For the first time, some pertinent statistics for the New into percentages. This article has been prepared to help York Court of Claims are also set forth, although it is not simplify answering this question and doing so on a fair, an appellate court. pragmatic, and accurate basis. We are generally covering herein the five-year period Presented herein are the year 2006 data for civil and of 2006, 2005, 2004, 2003 and 2002. In the statistics pre- criminal appeals for these New York state courts: sented, those for 2006 are at the left; those presented to 1. Court of Appeals, including: avenues to the New the right, in parentheses, are in the same yearly descend- York Court of Appeals and general comments. ing order. 2. The Four Departments of the Appellate Division of Again, a significant change – in order to present more the Supreme Court and general comments; pragmatic and accurate figures, the reported and official
44 | November/December 2007 | NYSBA Journal categories of “other” and “dismissal” are excluded for (c) In 2006, the average length of time from the fil- our purposes, because they are not actually dispositions ing of a notice of appeal until the release of the on the merits, after argument or submission. Thus, they decision was much shorter, 225 (257) (284) days. are not factored into or included in these statistics.2 In 3. Time for Deciding Appeals5 addition, dispositions of criminal cases are being includ- (a) The average time from argument or submission ed for the state appellate courts only, but not for the two to disposition in normal course was 35 (36) (46) U.S. Circuit Courts of Appeals. days; (b) The average time from filing a notice of appeal New York Court of Appeals3 to calendaring for oral argument was 6 (5.7) The percentages for appellate statistics for the 5-year (6.2) months; period ending 2006 are: (c) The average time from readiness (all papers served and filed) to calendaring for oral argu- Civil Cases ment was 1.7 (1.3) (1.5) months; 2006 2005 2004 2003 2002 (d) The average time from filing of notice to appeal Affirmed 66 55 58 51 47 to the public release of decision was 225 (257) Reversed 25 35 37 39 44 (284) days. Modified 9 10 5 10 9 4. Filings In 2006, there were 293 (284) (296) notices of Criminal Cases appeal and, of that total, 226 (213) (235) were civil 2006 2005 2004 2003 2002 matters. Affirmed 71 70 81 70 70 5. Dispositions Reversed 17 25 15 21 28 (a) 189 (196) (185) appeals were decided, including Modified 12 5 4 9 2 127 (137) (136) civil and 62 (59) (49) criminal. (b) 1,397 (1,289) (1,222) motions were decided and Comments the average time from return date to disposition The affirmance rate for civil cases spiked in 2006 to was 62 (58) (56) days for civil. 66%, although it remained about the same for criminal (c) Motions for leave to appeal, civil cases – there cases. were 1,017 (961) (901) applications and 6% (6.4%) (8.3%) granted. Avenues to the Court of Appeals in 2006 (2005), (d) In 2006, in comparison with 2005 and 2004 (2004)4 respectively, the average time period in the nor- mal course from argument or submission to the Civil Appeals public release of the decision was 35 (36) (46) Dissents in Appellate Division 19 (17) (31) days and, for all appeals, 30 (32) (39) days. Permission of Court of Appeals 54 (69) (70) 6. Motions Permission of Appellate Division 27 (27) (13) In 2006, the Court decided 1,397 motions. The Constitutional Question 11 ( 8) ( 6) average time from return date to decision in 2006 Stipulation for Judgment Absolute 0 ( 1) ( 0) for civil motions was 62 days and 51 days for all Criminal Appeals motions. Permission of Court of Appeals Judges 53 (50) (32) 7. Review of State Commission on Judicial Conduct Permission of Appellate Division Justices 9 ( 8) (14) Determinations Two determinations were reviewed in 2006, Significant Other Statistics with both recommendations being accepted (one 1. The Court’s 2006 Docket: 293 (284) (296) Notices of of removal and one of censure). In 2005 there was Appeal and orders granting leave were filed in 2006 one recommendation of removal accepted; and in (2005) (2004). 2004, the Court accepted two recommendations of 2. Appeals and Writings removal. (a) In 2006, the Court decided a total of 189 appeals 8. Rules 500.27 Certifications: Discretionary jurisdic- (127 civil and 62 criminal) of which 150 were tion to review questions from certain federal courts decided without dissent. In 2005, there was a and other courts of last resort. In 2006, the Court total of 196 decisions, with 142 being unani- accepted eight cases, with three being decided in mous. 2006 and five pending. (b) Promptness for Deciding Appeals
NYSBA Journal | November/December 2007 | 45 The Four Departments of the Appellate Division of the Supreme Court of the State of New York
Civil Statistics for 2006 (2005, 2004 2003, and 2002 in parentheses): First Second Third Fourth Affirmed 64 (66) (66) (69) (68) 59 (61) (62) (59) (62) 80 (81) (78) (79) (78) 70 (70) (70) (66) (63) Reversed 23 (21) (21) (18) (18) 29 (27) (28) (29) (28) 10 (10) (11) (11) (11) 14 (13 )(12) (19) (17) Modified 13 (13) (13) (13) (14) 12 (12) (10) (12) (10) 10 ( 9) (11) (10) (11) 16 (17 )(18 )(15) (20)
Criminal Statistics for 2006 (2005, 2004, 2003 and 2002 in parentheses): First Second Third Fourth Affirmed 89 (88) (93) (93) (93) 88 (90) (90) (90) (88) 85 (87) (87) (86) (85) 87 (89) (87) (88) (87) Reversed 3 ( 3) ( 2) ( 2) ( 3) 5 ( 5) ( 6) ( 6) ( 7) 6 ( 7) ( 6) ( 8) ( 6) 5 ( 3) ( 4) ( 3) ( 5) Modified 8 ( 9) ( 5) ( 5) ( 4) 7 ( 5) ( 4) ( 4) ( 5) 9 ( 6) ( 7) ( 6) ( 9) 8 ( 8) ( 9) ( 9) ( 8)
Comments rates for civil and criminal cases, which was 11,301 Affirmance Rates: For 2006, overall the civil affir- (10,746) (11,088). This is in sharp contrast to the First mance percentages for the First and Second Department, with 2,878 (2,981) (3,005). Departments were slightly lower than the previ- As to the total civil motions decided, the Second ous four years and fairly constant in the Third and had 10,722, almost twice the total dispositions of the Fourth Departments. First, which had 5,698. As to criminal affirmance statistics, all of the As explained previously, the Third Department’s Departments, except for the First, appear to be basi- much higher civil case affirmance rate results from cally unchanged. The First Department for the sec- the high number of CPLR Article 78 Administrative ond year had a significantly reduced percentage of Appeals from the determinations of state agencies, 89% compared to the 2002–2004 period of 93%. with the applicable “substantial evidence” stan- Total Appellate Dispositions: Again, in 2006, the dard.6 Second Department had the highest total disposition
The Appellate Terms of the First and Second Departments Appellate Term Statistics are presented for the second time in this format, divided into “civil” and “criminal” for comparison with prior years: Comments Civil Statistics for 2006 (2005, 2004, 2003 and 2002 are in parentheses): Although the Second Department in First Department Second Department 2006 had a total of 1,472 dispositions, Affirmed 65 (62) (73) (67) (59) 61 (52) (57) (62) (51) both civil and criminal, which was Reversed 23 (25) (17) (24) (26) 27 (35) (34) (34) (38) more than two-and-a-half times great- Modified 12 (13) (10) ( 9) (15) 12 (13) ( 9) ( 4) (11) er than the total of 547 in the First, the Second had only 345 oral arguments, almost the same as the First’s total of Criminal Statistics for 2006 (2005, 2004, 2003 and 2002 are in parentheses): 350. In 2005, the Second had a total of First Department Second Department 1,616 dispositions and the First had Affirmed 69 (72) (80) (80) (73) 64 (70) (57) (62) (51) 443, almost three and a half to one. Reversed 29 (23) (16) (12) (22) 32 (25) (34) (34) (38) The First Department’s 65% affir- Modified 2 ( 5) ( 4) ( 8) ( 5) 4 ( 5) ( 9) ( 4) (11) mance rate for civil cases is not too different from the previous four years, with similar observations about its basic reversal and modification sta- tistics. Similarly, the 61% rate of the Second Department and other statis- tics do not significantly deviate from the usual range.
46 | November/December 2007 | NYSBA Journal Regarding criminal statistics, there is a significant than in the New York Court of Appeals as well as the First decrease in affirmances in both courts. The First had a and Second Departments of the Appellate Division.8 ■ five-year low of 69% (down from a high of 80% within the last five years) and the Second, similarly, is 64% (down 1. “Bravado – the quality or state of being foolhardy,” Merriam Webster’s Collegiate Dictionary, Tenth Edition. from a high of 70% in the last 2005). 2. As defined in the Court of Appeals Annual Report, “other” includes anomalies which did not result in an affirmance, reversal, or modification New York Court of Claims (“other” included judicial suspensions, acceptance of a case for review pursu- Although, as noted, the New York Court of Claims is not ant to Court Rule 500.17). “Dismissal” also includes non-appealable orders, as well as stipulations or settlements after the filing of records on appeal. an appellate court, nevertheless, these statistics may be of 3. From the Annual Report of the Clerk of the Court of Appeals for 2006. value to practitioners in this court. Presented for the first 4. In 2006 numbers, with only 2005 and 2004 figures in parentheses and time, the significant statistics for 2006 are: excluding the category “other.” 1. A total of 1,811 claims were disposed of, with 1,724 5. Excluding Constitutional questions, stipulations for judgment absolute dismissals and 87 awards. Thus, of all filed, only and “other.” 4.8% resulted in awards. 6. Author’s note: These figures alone again clearly support the long-time 2. 4,395 claims were pending on January 1, 2006; 1,482 need for a fifth department. Additionally, the population within the Second were filed in 2006 and on December 31, 2006, the Department constitutes almost one half of the state. pending claims numbered 4,066. 7. The high affirmance rate is attributed to the fact that most of their cases involve review of decisions of federal administrative agencies with a different 3. The total amounts originally claimed in the 87 standard of review. awards was approximately $117,000,000 with actual 8. The reports containing the above statistics are directly available. For the awards of $18,472,000 or 17% of the original claims. New York state courts, the information may be obtained at the Web site
Second Circuit Administrative Appeals Other Other U.S. Civil Private Civil Affirmed 67 71 Affirmed 70 Dismissed 24 18 Dismissed 13 Reversed 9 11 Reversed 7
District of Columbia77 Administrative Appeals Other Other U.S. Civil Private Civil Affirmed 83 80 Affirmed 67 Dismissed 3 2 Dismissed 16.5 Reversed 4 18 Reversed 16.5
Comments As noted last year, in comparing these Circuit Court sta- tistics with those for the New York Court of Appeals, gen- erally, there is a higher percentage of affirmances in both the Second Circuit and the District of Columbia Circuit
NYSBA Journal | November/December 2007 | 47 ENVIRONMENTAL LAW BY MONTGOMERY L. EFFINGER
MONTGOMERY L. EFFINGER ([email protected]) is a partner with the law firm of O’Connor, McGuinness, Conte, Doyle & Oleson. He is a graduate of Bucknell University and received his law degree from Pace University Law School.
Imposition of Litigation Costs and Fees in Oil Spill Cases
he general American rule ment, to restore the environment to its has discharged petroleum shall be regarding the costs of litigation pre-spill condition, and to compensate strictly liable, without regard to fault, Tholds each party responsible for those damaged by such discharge.4 for all cleanup and removal costs and the fees and costs of litigation, regard- Part Three of the Act establishes the all direct and indirect damages, no less of the outcome. The victor in a tort “New York Environmental Protection matter by whom sustained.”10 A “dis- case will not generally have the right and Spill Compensation Fund” (“Oil charge” is defined as “any intentional to impose those necessary expenses Spill Fund” or the “Fund”).5 The or unintentional action or omission upon other litigants in the absence objective of the Oil Spill Fund is to resulting in the releasing, spilling, of special circumstances.1 The height- foster quick and efficient cleanup of leaking, pumping, pouring, emitting, ened public policy concerns associ- spills while providing a mechanism emptying or dumping of petroleum ated with oil product spills create just whereby cleanup will not be delayed. into” state waters.11 Furthermore, such a limited circumstance, and the The Fund steps in and undertakes § 190 of the Act explicitly provides New York State Legislature has seen the necessary remediation when the that “any claim for damages by any fit to alter these normal and expected discharger is unknown, unwilling or injured person . . . may be brought rules in Article 12 of the New York unable to pay these costs, thereby directly against . . . the insurer.” Navigation Law, commonly known as giving rise to a civil action against the Courts that have dealt with claims the “Oil Spill Act” (or the “Act”).2 responsible party for recovery of all against insurers under § 190 have Under the Oil Spill Act, any injured direct and indirect costs associated allowed such claims to stand without party may bring a private action with the spill.6 requiring a viable claim against the directly against a discharger. Recent Along with provisions for admin- insured discharger under § 181 if the appellate authority further emphasizes istration of the Fund and oversight of spill is covered by the policy.12 the broad scope of direct and indirect oil spill cleanup operations, the Act In order to further ensure eco- damages that are available to plaintiffs also provides valuable assistance to nomic accountability, the discharger through this statute. Indeed, the costs those who sustain damages as a result is responsible for payment of the of litigation may be recovered without of an oil spill. So powerful is the Act’s cleanup costs either to the Oil Spill regard for whether cleanup or removal reach that it has been held to extend Fund or directly to parties who suf- costs were incurred. The cases thus to discharges that occurred before its fer financial injury resulting from a appear to treat the Act as a litigation enactment.7 Additionally, the provi- spill. The Legislature amended the incentive statute, virtually guarantee- sions of the Act are construed liberally definition of “claim” in 1991 to make ing the award of fees to prevailing to effect their legislative purpose.8 The clear that a party bringing suit against plaintiffs irrespective of the degree of courts have expansively interpreted a private party need not first seek culpable conduct or adequacy of the the Act to impose costs for preventive recovery from the Fund.13 For per- response and remediation undertaken measures taken to avoid pollution sons harmed by such spills, the Oil by the defendant who is responsible damages, even in the absence of proof Spill Act provides for a private right for the discharge of an oil product. of actual impact.9 of recovery through civil litigation, To accomplish these tasks, a num- while stating: Broad Scope of Remedies ber of tools are written into the statute. Any claim by any injured per- The Oil Spill Act is concerned with Under the Oil Spill Act, a discharger son for the costs of cleanup and health and safety issues,3 and its pur- is strictly liable in damages to those removal and direct and indirect pose is to require the prompt cleanup harmed by its improper handling of damages based on the strict liabil- and removal of oil and fuel discharge petroleum products. Indeed, accord- ity imposed by this section may be to minimize damage to the environ- ing to the statute, “[a]ny person who brought directly against the person
48 | November/December 2007 | NYSBA Journal who has discharged the petroleum, encouraging injured parties to bring incentive indeed. The courts do not provided, however, that damages their actions directly against the dis- engage in an analysis of motive or recoverable . . . shall be limited to charger. The costs associated with intent and, furthermore, even with- the damages authorized by this this complex litigation are substantial out evidence that a discharger sought section.14 since this type of case will often lead to avoid remediation, the general Courts have pointed out that this to protracted discovery26 and field rule that each party should bear its statute is “remedial” in nature and testing with intensive data analysis, own litigation costs34 will not prevail simply extends the common-law right thereby giving rise to the need for where the Oil Spill Act applies. to recover damages that previously statutory means of recovery. existed in favor of any party injured Although recovery of litigation Conclusion as a result of oil discharge.15 The Oil costs is not directly addressed in the The Oil Spill Act provides numerous Spill Act expands these rights and was Oil Spill Act, courts have held that the tools, including strict liability and not intended to replace or diminish a list of damages is explicitly non-inclu- broad categories of recoverable direct claimant’s right to recourse under the sive,27 and such indirect damages are and indirect damages that may be common law.16 The Act’s strict liabil- recoverable according to the appellate imposed against those who are respon- ity claims may be brought along with authority. To the extent that plain- sible for a petroleum product spill. common-law causes of actions such tiffs are able to establish that they In this manner, the statute seeks to as negligence or nuisance.17 incurred liability for counsel fees as a ensure prompt and thorough remedia- The statute also generously allows result of the discharge, such fees may tion while imposing the costs on those for the costs of restoring, repairing or be recovered as “indirect damage” responsible for any resulting damage. replacing any real or personal prop- under § 181(1) and (5) of the Act.28 The appellate authority makes it clear erty damage caused by a discharge, Thus, where a party is responsible that the statute was implemented to along with recovery of income lost for unreasonable delay in the inves- alleviate the strain on public clean- and compensation for any resulting tigation and remediation of environ- up funds and limit the consequential reduction in property value.18 These mental problems, it has been held losses that may result to owners of broad categories of recoverable direct that damages were properly awarded damaged property while providing and indirect costs are designed to for the costs incurred while retaining incentive through recovery of indi- cover the technically complex and legal assistance for the cleanup pro- rect damages, including attorney fees, expensive processes associated with cess.29 Furthermore, where litigation to those who seek compensation for identification, remediation and moni- and resulting costs were necessitated their losses. Under this interpretation, toring of above- and below-ground oil by the defendant’s extended delay courts have held that these costs and spills. Direct damages, including the in cleaning the contamination, along fees are recoverable even without any cost of contamination containment, with its recalcitrance in committing to showing that the plaintiff paid either soil cleaning and removal are all obvi- a plan of action which would restore cleanup or removal costs. This broad ous consequences contemplated by the plaintiffs’ property to its pre-spill and inclusive allowance for indirect the Oil Spill Act.19 The less apparent, condition while maintaining a mini- damages in favor of those who suc- but equally important, diminution mum disruption of the plaintiffs’ busi- cessfully bring suit against a discharg- in the value of property, caused by ness, the plaintiffs were held entitled er must be viewed as an extension of a discharge, is also recognized as an to recover these fees.30 The Act has the strong public policy and environ- appropriate basis for recovery.20 Lost further been interpreted to provide mental protection concerns that form profits21 and devaluation of prop- a private right of action against a the foundation for the Oil Spill Act. ■ erty resulting from the “stigma” of a discharger to recover direct and indi- prior oil spill are also recoverable.22 rect damages, including attorney fees, 1. Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 247 (1975); In re A.G. Ship Maint. Corp. v. Although neither personal injury regardless of whether the plaintiff Lezak, 69 N.Y.2d 1, 5, 511 N.Y.S.2d 216 (1986). 23 compensation nor nominal dam- has paid cleanup or removal costs or 2. N.Y. Navigation Law art. 12, §§ 170–197 ages24 are awardable under the Act, has been held liable to the state for (“Nav. Law”), Oil Spill Prevention, Control, and the recovery of attorney expenses is a cleanup and removal costs.31 Compensation; State v. Green, 96 N.Y.2d 403, 406, 729 N.Y.S.2d 420 (2001). recognized indirect damage.25 Claims under the Oil Spill Act are 3. Wever Petroleum, Inc. v. Gord’s Ltd., 225 A.D.2d 32 not without bounds, however, and 27, 30, 649 N.Y.S.2d 726 (3d Dep’t 1996) (citing Nav. Recovery of Litigation Costs as the private right of recovery is strictly Law § 195). Indirect Damages limited to provide compensation only 4. Nav. Law §§ 170, 171; 6 N.Y.C.R.R. § 611.6; Section 181(5) of the Act authorizes to parties who did not cause or con- State v. Speonk Fuel, Inc., 3 N.Y.3d 720, 723, 786 33 N.Y.S.2d 375 (2004); AMCO Int’l, Inc. v. Long Island private actions in order to alleviate tribute to the discharge. For a party RR Co., 302 A.D.2d 338, 340, 754 N.Y.S.2d 655 (2d the strain on the Fund of paying who qualifies, the expanded rights Dep’t 2003); Turnbull v. MTA N.Y. City Transit, 28 out claims in the first instance by of recovery provide strong litigation A.D.3d 647, 649, 814 N.Y.S.2d 191 (2d Dep’t 2006);
NYSBA Journal | November/December 2007 | 49 Matera v. Mystic Transp., Inc., 308 A.D.2d 514, 518, A.D.3d at 717; Joseph, 29 A.D.3d at 1235; see Niagara Dep’t 1996), appeal dismissed, 89 N.Y.2d 1086, 659 764 N.Y.S.2d 458 (2d Dep’t 2003); Lambrinos v. Mohawk Power Corp. v. Jones Chem., Inc., 315 F.3d 171, N.Y.S.2d 859 (1997). Exxon Mobil Corp., 1:00-CV-1734, 2006 WL 2238977 175 (2d Cir. 2003). 24. Kara Holding Corp. v. Getty Petroleum Mktg., Inc., (N.D.N.Y. Aug. 4, 2006). 12. Snyder, 194 A.D.2d at 58; State v. Am. Nat’l Fire 99 Civ. 0275 (RWS), 2004 WL 1811427 (S.D.N.Y, Aug. 5. N.Y. Navigation Law Article 12, Oil Spill Ins. Co., 193 A.D.2d 996, 997, 598 N.Y.S. 2d 339 (3d 12, 2004). Prevention, Control, and Compensation; Part Dep’t 1993); State v. Travelers Indem. Co., 120 A.D.2d 25. Strand, 232 A.D.2d at 909. Three, New York Environmental Protection and 251, 508 N.Y.S.2d 698 (3d Dep’t 1986), appeal dis- Spill Compensation Fund §§ 179–190. missed, 70 N.Y.2d 669, 518 N.Y.S.2d 962 (1987); State 26. Kara Holding Corp., 2004 WL 1811427. of N.Y. v. INA Underwriters Ins. Co., 133 Misc. 2d 430, 6. Green, 96 N.Y.2d at 406. 27. Wever Petroleum, 225 A.D.2d at 30. 432, 507 N.Y.S.2d 112 (Sup. Ct., Albany Co. 1986). 7. Leone v. Leewood Serv. Station, Inc., 212 A.D.2d 28. Strand, 232 A.D.2d at 908–09; State v. Tartan Oil 13. White v. Long, 85 N.Y.2d 564, 569, 626 N.Y.S.2d 669, 671, 624 N.Y.S.2d 610 (2d Dep’t 1995); State v. Corp., 219 A.D.2d 111, 115–16, 638 N.Y.S.2d 989 (3d 989 (1995) (citing Nav. Law § 172(3)). Cities Serv. Co., 180 A.D.2d 940, 941, 580 N.Y.S.2d Dep’t 1996). See also Kara Holding Corp., 2004 WL 512 (3d Dep’t 1992); Snyder v. Newcomb Oil Co., 14. Nav. Law § 181(5); White, 85 N.Y.2d at 567– 1811427. 194 A.D.2d 53, 60–61, 603 N.Y.S.2d 1010 (4th Dep’t 68; Hjerpe v. Globerman, 280 A.D.2d 646, 647, 721 29. Gettner v. Getty Oil Co., 266 A.D.2d 342, 701 1993); Mendler v. Fed. Ins. Co., 159 Misc. 2d 1099, N.Y.S.2d 367 (2d Dep’t 2001); see Bologna, 95 F. Supp. N.Y.S.2d 64 (2d Dep’t 1999). 1103, 607 N.Y.S.2d 1000 (Sup. Ct., N.Y. Co. 1993); 2d at 203. 30. AMCO Int’l, Inc., 302 A.D.2d 338, 341, 754 Bologna v. Kerr-McGee Corp., 95 F. Supp. 2d 197, 202 15. Leone v. Leewood Serv. Station Inc., 212 A.D.2d N.Y.S.2d 655 (2d Dep’t 2003). (S.D.N.Y. 2000). 669, 671, 624 N.Y.S.2d 610 (2d Dep’t 1995). 31. Starnella v. Heat, 14 A.D.3d 694, 789 N.Y.S.2d 8. Speonk Fuel, Inc., 3 N.Y.3d at 723; 145 Kisco Ave. 16. Calabro v. Sun Oil Co., 276 A.D.2d 858, 859, 714 227 (2d Dep’t 2005); Patel v. Exxon Corp., 11 A.D.3d Corp. v. Dufner Enters., Inc., 198 A.D.2d 482, 483, N.Y.S.2d 781 (3d Dep’t 2000). 916, 917, 782 N.Y.S.2d 328 (4th Dep’t 2004). 604 N.Y.S.2d 963 (2d Dep’t 1993); State v. Joseph, 29 A.D.3d 1233, 1235, 816 N.Y.S.2d 214 (3d Dep’t 2006); 17. Wever Petroleum, Inc. v. Gord’s Ltd., 225 A.D.2d 32. Putnam v. State, 223 A.D.2d 872, 873, 636 Bologna, 95 F. Supp. 2d at 202. 27, 31, 649 N.Y.S.2d 726 (3d Dep’t 1996). N.Y.S.2d 473 (3d Dep’t 1996). 9. Plainview Water Dist. v. Exxon Mobil Corp., 18. Nav. Law § 181(2)(a); Putnam v. State, 223 33. White v. Long, 85 N.Y.2d 564, 568–69, 626 N.Y.L.J., Dec. 8, 2006, p. 21, col. 3 (Sup. Ct., Nassau A.D.2d 872, 873, 636 N.Y.S.2d 473 (3d Dep’t 1996). N.Y.S.2d 989 (1995); Union Tpk. Assoc. v. Getty Co.). 19. Nav. Law § 181(1)(a); Putnam, 223 A.D.2d 872. Realty Corp., 27 A.D.3d 725, 727, 812 N.Y.S.2d 628 (2d Dep’t 2006); Fuchs & Bergh, Inc. v. Lance Enters., 10. Nav. Law § 181(1); Green, 96 N.Y.2d at 406; 20. Nav. Law § 181(2); Putnam, 223 A.D.2d 872; Inc., 22 A.D.3d 715, 717, 802 N.Y.S.2d 749 (2d Dep’t Fuchs & Bergh, Inc. v. Lance Enters., Inc., 22 A.D.3d Turnbull v. MTA N.Y. City Transit, 28 A.D.3d 647, 649, 2005); Hjerpe v Globerman, 280 A.D.2d 646, 647, 721 715, 716, 802 N.Y.S.2d 749 (2d Dep’t 2005); Matera 814 N.Y.S.2d 191 (2d Dep’t 2006). N.Y.S.2d 367 (2d Dep’t 2001); Popolizio v. City of v. Mystic Transp., Inc., 308 A.D.2d 514, 518, 764 21. AMCO v. Long Island RR Co., 302 A.D.2d 338, Schenectady, 269 A.D.2d 670, 671, 701 N.Y.S.2d 755 N.Y.S.2d 458 (2d Dep’t 2003); see State v. Dennin, 17 340, 754 N.Y.S.2d 655 (2d Dep’t 2003). (3d Dep’t 2000); Bologna v. Kerr-McGee Corp., 95 F. A.D.3d 744, 745, 792 N.Y.S.2d 682 (3d Dep’t 2005); Supp. 2d 197, 203 (S.D.N.Y. 2000). Bologna, 95 F. Supp. 2d at 203. 22. Turnbull, 28 A.D.3d at 649. 34. See supra note 1. 11. Nav. Law § 172(8); White v. Long, 85 N.Y.2d 564, 23. Wever Petroleum, 225 A.D.2d at 28; Strand v. 568, 626 N.Y.S.2d 989 (1995); Fuchs & Bergh, Inc., 22 Neglia, 232 A.D.2d 907, 909, 649 N.Y.S.2d 729 (3d NEW YORK STATE BAR ASSOCIATION
Announcing—2007 Revision to the “Pedowitz book” Real Estate Titles Third Edition Editor-in-Chief: revised, including the chapter on title insurance James M. Pedowitz, Esq. which now includes copies of the new 2006 Of Counsel American Land Title Association policies and the Berkman, Henoch, Peterson & Peddy updated Title Insurance Rate Service Association Garden City, NY (TIRSA) endorsements. This revised Third Edition includes new decisions, statutes and regulations; Productduct InInfofo aandnd PPricesrices the index has also been substantially revised and Edited by a nationally renowned expert on 2007 • 1,632 pp. • loose-leaf • 2 vols. expanded. real estate law and title insurance, James M. PN: 521007 Pedowitz, this revised Third Edition of Real New attorneys will benefi t from the comprehen- NYSBA Member $150 / Non-member $180 Estate Titles is a thorough update of the sive coverage by leading practitioners from Free shipping and handling within the continental U.S. The original text and is authored by some of the throughout New York State, and real estate cost for shipping and handling outside the continental U.S. most distinguished practitioners in the fi eld. experts will be able to turn to this book will be added to your order. Prices do not include applicable Many chapters have been substantially whenever a novel question arises. sales tax. Get the Information Edge 1.800.582.2452 www.nysba.org/pubs Mention Code: PUB0148
50 | November/December 2007 | NYSBA Journal METES AND BOUNDS BY MARC W. BROWN
MARC W. BROWN ([email protected]) is an Associate in the Buffalo office of Phillips Lytle LLP. He earned his undergraduate degree and an MBA at the State University of New York at Binghamton, and his law degree at the State University of New York at Buffalo.
Tax Assessment Proceedings and the Role of the Board of Assessment Review
ecently, many municipalities fails to file the complaint with the assessment subject to the com- 9 across New York State have assessor on or before the established plaint. Rdecided to assess properties at grievance date, the court has no juris- Willful Neglect and Subsequent full value. A direct result of this decision diction to review the property owner’s Dismissal of the Complaint has been an increase in property tax complaint as a result of an unfavorable The property owner’s failure to pro- assessment complaints filed by com- decision by the BAR.6 vide information requested by the mercial and residential property own- BAR may be considered willful ers who claim that their assessments The BAR’s Review neglect and result in the BAR’s dis- are excessive, unequal or unlawful, or The BAR is granted specific powers missal of the assessment complaint.10 misclassified.1 These property owners when reviewing the assessment com- The BAR’s dismissal of the property frequently retain counsel, many of plaint. If the BAR is not satisfied that it owner’s complaint, in contrast to a whom are unfamiliar with tax assess- can make a reasonable determination mere denial of the relief sought in the ment matters and the powerful role by simply review- of the Board of Assessment Review ing the complaint, (BAR). This article will address the the BAR is empow- initial stages of a typical tax assess- ered to require the ment proceeding before a BAR, and property owner to will highlight the potential pitfalls for appear before it and the inexperienced practitioner when to “produce any filing the tax assessment complaint papers relating to and dealing with the BAR.2 such assessment.”7 The BAR determines Submission of the Complaint “what information By May 1 in many jurisdictions, the is material to the assessor has prepared a tentative proceeding” and the assessment roll, which includes the “boundaries of [its] uniform percentage of value for each inquiry are broad.”8 assessing unit and designates the value Accordingly, if the of the land without improvements, the property owner total assessed valuation, and the full shall willfully value of the parcel.3 If a property owner neglect or refuse to believes that his or her assessment is attend and be so incorrect, the property owner must file examined, or to an administrative complaint with the answer any ques- assessor on or before the established tion put to him “grievance date.”4 The complaint must or her relevant to specify in what manner the assessment the complaint or is incorrect and the property owner assessment, such will be limited in any subsequent pro- person shall not ceedings to the grounds pleaded in be entitled to any the complaint.5 If the property owner reduction of the
NYSBA Journal | November/December 2007 | 51 complaint, precludes any reduction in scribed by RPTL § 525(2)(a), his or The cautious practitioner must fol- the property owner’s assessment and her assessment complaint and subse- low the timing and complaint proce- may be upheld by courts in any subse- quent judicial proceeding should not dures outlined in the RPTL and either quent RPTL Article 7 proceeding11 or be dismissed.16 Accordingly, where fully respond to the BAR’s requests or review of a Small Claims Assessment the property owner’s objections to establish objective reasons why a full Review (SCAR) proceeding.12 In addi- the BAR’s requests are reasonable, response is not possible. This practice tion, the BAR’s dismissal amounts to and the property owner does not should avoid the detrimental conse- a frustration of the administrative provide the information requested by quences that result from a BAR dis- review process and constitutes a fail- the BAR, courts have found that such missal. ■ ure to exhaust one’s administrative conduct does not “rise to the level of remedies.13 Recently, the Appellate willful noncompliance intended to 1. See N.Y. Real Property Tax Law § 524(2) (RPTL). Division, Fourth Department upheld frustrate administrative review.”17 2. The tax assessment process in New York a BAR’s decisions to dismiss the The property owner’s refusal to City is unique and follows the New York City property owners’ complaints in RPTL provide information will not be con- Administrative Code. See http://www.nyc. Article 7 proceedings and an Article sidered willful neglect where: the gov/html/taxcomm/html/home/home.shtml. Similarly, there are different time constraints and 78 proceeding reviewing a hearing documents requested by the BAR considerations for cities, villages, and towns. The officer’s determinations at SCAR pro- consist of trade secrets, and the BAR practitioner must check with each municipality to ceedings, because the property own- refuses to enter into an appropriate determine the applicable filing dates and dead- lines. ers did not provide the information confidentiality agreement;18 there was 3. See RPTL §§ 502(3), 506(1). the BAR requested, did not contend no proof that the property owner’s 4. See RPTL § 512(1)(1-a). that the information requested was failure to appear at the BAR hearing irrelevant, and did not seek an exten- or submit information was willful;19 5. See RPTL § 524(1). sion of time to submit the informa- the property owner had previously 6. See Cornwell v. Town of Esperance, 252 A.D.2d 795, 796, 676 N.Y.S.2d 258 (3d Dep’t 1998). tion.14 provided the information to the BAR; 7. See RPTL § 525(2)(a). the information was unavailable; the 8. Grossman v. Bd. of Trustees of Vill. of Geneseo, 44 Overreaching BARs and Improper requested information consisted of A.D.2d 259, 263, 354 N.Y.S.2d 188 (4th Dep’t 1974). 20 Dismissal of the Complaint material prepared for litigation. 9. RPTL § 525(2)(a) (emphasis added). Conversely, courts refuse to uphold 10. See id. BAR dismissals “absent proof that Conclusion 11. See Parkway Plaza v. Assessor of City of noncompliance was occasioned by With the recent municipal trend toward Canandaigua, 269 A.D.2d 811, 812, 703 N.Y.S.2d 790 a desire to frustrate administrative assessing property at full value, an (4th Dep’t 2000); Sarsfield v. Bd. of Assessors of Town review.”15 Where the property owner increased number of tax assessment of Islip, 240 A.D.2d 506, 659 N.Y.S.2d 773 (2d Dep’t 1997). does not engage in conduct pro- complaints will be filed each year. 12. See McNamara v. Bd. of Assessors of Town of Smithtown, 272 A.D.2d 617, 618, 709 N.Y.S.2d 821 (2d Dep’t 2000); Meola v. Assessor of Town of Colonie, 207 A.D.2d 593, 594, 615 N.Y.S.2d 506 (3d Dep’t 1994), leave denied, 84 N.Y.2d 812, 622 N.Y.S.2d 915 (1995). 13. See Sterling Estates, Inc. v. Bd. of Assessors of County of Nassau, 66 N.Y.2d 122, 125, 495 N.Y.S.2d 328 (1985). 14. See Sterben v. Bd. of Assessment Review of Town of Amherst, 41 A.D.3d 1214, 838 N.Y.S.2d 279 (4th Dep’t 2007); Gelber Enters. v. Williams, 41 A.D.3d 1207, 838 N.Y.S.2d 330 (4th Dep’t 2007). 15. Fifth Ave. Office Ctr. Co. v. City of Mount Vernon, 89 N.Y.2d 735, 741–42, 658 N.Y.S.2d 217 (1997). 16. See McCready v. Assessor of Town of Ossining, 10 A.D.3d 452, 780 N.Y.S.2d 913 (2d Dep’t 2004). 17. Chester Mall Partners v. Vill. of Chester, 239 A.D.2d 414, 415, 657 N.Y.S.2d 435 (2d Dep’t 1997). 18. See Curtis/Palmer Hydroelectric Co. v. Town of Corinth, 306 A.D.2d 794, 795–96, 761 N.Y.S.2d 712 (3d Dep’t 2003). 19. See Doubleday & Co. v. Bd. of Assessors of Vill. of Garden City, 202 A.D.2d 424, 425, 608 N.Y.S.2d 699 (2d Dep’t 1994). 20. See State of N.Y. v. Town of Northampton, 156 A.D.2d 857, 858, 550 N.Y.S.2d 81 (3d Dep’t 1989).
52 | November/December 2007 | NYSBA Journal FAMILY LAW BY WILLARD H. DASILVA
WILLARD H. DASILVA, a member of DaSilva, Hilowitz & McEvily LLP, is a veteran matrimonial law practitioner with offices in Garden City and New City, New York, editor-in-chief of the ABA’s Family Advocate; editor-in-chief of the New York Domestic Relations Reporter, (Matthew Bender); and author of New York Matrimonial Practice (West Group). He is a magna cum laude graduate of New York University and received his law degree at Columbia University Law School. The Critical Net Worth Statement
n every matrimonial action where prepare with care. The adverse attor- Those discrepancies must be explain- the issue of finances is raised, a ney will then have the opportunity to able. If they are not readily explain- I“sworn statement of net worth compare the net worth statement just able, it is then the attorney realizes that shall be provided,” unless the court prepared with the net worth statement the sloppily prepared initial net worth has waived it for good cause.1 Every served at the outset of the case. statement contains numerous omis- motion for maintenance, counsel fees A comparison of the figures con- sions and mistakes of fact. The adverse or child support, whether permanent tained in each statement of net worth, attorney can use those discrepancies or temporary, must be accompanied the first one served and the later one, by a statement of the applicant’s net will undoubtedly show disparities. CONTINUED ON PAGE 77 worth in the form mandated by 22 N.Y.C.R.R. § 202.16(b) Appendix A. Failure to include the affidavit of net worth in an application for financial relief is a basis for denying that relief, regardless of what other papers have been submitted. Yet, perhaps the most sloppily pre- pared document in a matrimonial case is the client’s statement of net worth. It is common practice for an attorney to provide to a client the official form of net worth statement with the instruc- tions to complete it. When the client returns the completed affidavit, it is not uncommon for the attorney merely to sign the certification pursuant to § 130-1.1a, without a careful examina- tion of the content of the net worth statement, and then to serve it. How often has each reader seen net worth statements prepared in the handwriting of the client, obviously not reviewed by the attorney? Such a statement is fraught with danger. It is a document with which the client must live throughout the duration of the litigation. In a case that is about to be tried, it is common for the court to require an updated financial statement of net worth. It is this statement that the attorney usually will scrutinize and
NYSBA Journal | November/December 2007 | 53 INDEX TO ARTICLES 2003–2007
This index places the articles in one of the following categories. Please note that all articles from January 2000–November/December 2007 are available online, to members. Animal Law Constitutional Law International Law Administrative Law Consumer Law Labor and Employment Antitrust Law Courts Law Practice Appeals Criminal Law Legal Writing Arbitration / Alternative Dispute Crossword Poetry Resolution Environmental Law Point of View Column Attorney Professionalism Evidence Real Property Law Banking / Finance Law Family Law Science and Technology Bankruptcy Government and the Law Tax Law Books on Law Health Law Torts and Negligence Civil Procedure History Trial Practice Commercial Law Humor—Res Ipsa Jocatur Trusts and Estates Computers and the Law Intellectual Property Women in Law
TOPIC/ARTICLE AUTHOR ISSUE/Pg. Books on Law Business and Commercial Litigation in Federal Courts, 2d Edition Animal Law (Robert L. Haig, editor-in-chief), Wesley, R., Jul./Aug. 2006 50 Animal Welfare Act, The – What’s That?, Commercial Litigation in New York State Courts (Robert L. Haig, edi- Sullivan, M., Jul./Aug. 2007 17 tor-in-chief), Alcott, M., Jul./Aug. 2005 52 Improve Administration of the Animal Welfare Act, Legal Muscle (by Rick Collins), Liotti, T., Mar./Apr. 2003 46 Gesualdi, J., Jul./Aug. 2007 20 Lexis/Nexis Answer Guide New York Civil Disclosure (by David Paul Appeals Horowitz), Miller, H., June 2005 51 Appeals Clinic – 7 Tips on Whether to Appeal, How to Write Better Briefs, Robert H. Jackson: Country Lawyer, Supreme Court Justice, America’s Feathers, C., Feb. 2004 36 Advocate (by Eugene C. Gerhart), Wagner, L., Jul./Aug. 2003 47 Appellate Advocacy: Suggestions for Effective Appellate Oral Argument, Taxation of Damage Awards and Settlement Payments (by Robert W. Buzard, A., May 2007 30 Wood), Flora, J., Jul./Aug. 2005 50 Update: Did the Appellate Odds Change in 2005?, Business Law (see Commercial Law) Kassal, B., Oct. 2006 42 Update: Did the Appellate Odds Change in 2006? Statistics in State and Children and the Law (see Family Law) Federal Courts, Kassal, B., Nov./Dec. 2007 44 Update: Did the Odds Change in 2003?, Kassal, B., Nov./Dec. 2004 28 Civil Procedure Update: Did the Odds Change in 2004?, Kassal, B., Nov./Dec. 2005 32 Advanced Litigation Techniques – Canons and Myths: Strategies to Enhance Success, Young, S., Jan. 2004 10 What Are the Odds? Appellate Statistics Reveal Patterns Among State and Federal Courts, Kassal, B., Jan. 2004 46 Advanced Litigation Techniques – Conventional Wisdoms or Mistakes: The Complaint and the Response, Young, S., June 2004 28 Arbitration / ADR (see also Labor and Employment) Anything But Law: My Life in Paper, Siegel, D., June 2006 46 Appealing an Arbitrator’s Award: Suggested Approaches, Better Expert Disclosure in New York? Change Outdated CPLR 3101(d), Marrow, P., Nov./Dec. 2005 14 Stadtmauer, S., Feb. 2007 22 Arbitration: Motion Practice and Arbitration Proceedings From the Bringing It Home: Feasible Strategies for Successful Discovery and Perspective of the Arbitrator, Marrow, P., Sept. 2007 50 Winning Dispositive Motions, Young, S., May 2006 10 Arbitration: Selecting the Proper Provider to Administer Your Arbitration, Collateral Complexities – Understanding CPLR 4545, Marrow, P., June 2007 44 Goldberg, B., Mar./Apr. 2007 41 Coming to New York? An Unconscionable Mediation Agreement, Navigating the New York City Civil Court: A Guide to Variations From Marrow, P., Jul./Aug. 2006 40 Supreme Court Civil Practice, Ramos, W., Sept. 2006 36 Institution Versus Individual: The Arbitration Alternative to Litigation, New York’s Statutes of Limitations Affect Strategies That Involve Bennett, S., Nov./Dec. 2005 26 Counterclaims and Recoupment, Beha, J., II, Jan. 2003 22 Attorney Professionalism No Greater Rights: The Limits of Pro Se Litigation in New York Courts, Don’t Tell Anyone (Our Confidentiality Rules Are Changing), Weber, R., Jul./Aug. 2007 10 Krane, S., May 2005 28 Recent Court of Appeals Decisions Reflect Strict Interpretation of Forum, Committee on Attorney Professionalism, Feb.–Nov./Dec. Procedural Requirements, Rosenhouse, M., Feb. 2003 30 2003; Jan. 2004–Nov./Dec. 2007 Revisions in Federal Rule 53 Provide New Options for Using Special In Memoriam: Charles E. Heming 1926–2003, Miller, H. Oct. 2003 42 Masters in Litigation, Scheindlin S.; Redgrave, J., Jan. 2004 18 New York State Judicial Institute, The, Keating, R., May 2005 10 To Fly, or Not to Fly . . . , Siegel, D., Nov./Dec. 2005 10 Recent News Events Illustrate Ethical Dilemmas Associated With a Commercial Law “Difficult” Organizational Client, DiLorenzo, L., Mar./Apr. 2003 8 Are They Still Enforceable? Non-compete Agreements Revisited, Banking / Finance Law Fellner, G., Oct. 2007 26 Funding Terrorism, Hayden, D.; Feldman, H., Sept. 2005 23 Can a Choice of Forum Clause Force a Franchisee to Litigate in the Franchisor’s Home State?, Kassoff, M., June 2004 22 Bankruptcy Cooperatives Authorized to Use Business Judgment Rule in Terminating 10 Practical Questions as a Client Faces Loan Default, Shareholder Leases, Kastner, M.; Kassenoff, J., Jul./Aug. 2003 32 Salomon, C., Nov./Dec. 2007 41
54 | November/December 2007 | NYSBA Journal Derivative Standing for New York LLC Members – The Conflict Courts Continues, Steckman, L.; Rothman, D.; Yamamoto, Y., Oct. 2007 33 Bridges Between Parallel Paths: The First New York Listening Conference Does the Doctrine of Contractual Unconscionability Have a Role in for Court Officials and Tribal Representatives, Kahn, M.; Davidowitz, Executive Compensation Cases?, Marrow, P., Sept. 2003 16 E.; Beane, J., Nov./Dec. 2006 10 From Lapdog to Watchdog – The Post-SARBOX Corporate Board, “Don’t Come Back Without a Reasonable Offer” Surprisingly Little Direct Alexis, G., Mar./Apr. 2007 22 Authority Guides How Judges Can Move Parties, Part Two – The Judge’s Role, Shoot, B.; McGrath, C., May 2004 28 How Not to Govern: Lessons from the Report to the Board of Regents of the Smithsonian Institution, Friedman Rosenthal, L., “Don’t Come Back Without a Reasonable Offer” The Extent of, and Nov./Dec. 2007 35 Limits on, Court Power to Foster Settlement, Part One – The Theory and Practice of Settlement Before the Court, Shoot, B.; Planning for Forum Selection in Commercial Transactions, McGrath, C., Mar./Apr. 2004 10 Powers, J., Feb. 2006 22 Experiment in Larger Juries in Civil Trials, An, Promissory Fraud, Ayres, I.; Klass, G., May 2006 26 Landsman, S., Oct. 2006 21 Quirk in New York UCC Provisions Puts Signers of Company Checks at Juror Questions at Trial: In Principle and in Fact, Risk for Personal Liability, Golden, P., Oct. 2004 36 Diamond, S., Oct. 2006 23 Shareholder Wars: Internal Disputes in Close Corporations Do Not Jury Innovation in Practice: The Experience in New York and Elsewhere, Always Lead to Judicial Dissolution, Mahler, P., Oct. 2004 28 Hannaford-Agor, P.; Connelly, C., Oct. 2006 19 Should a Franchise Holder Be Allowed to Continue Operating While Jury Voir Dire in Criminal Cases, Bamberger, P., Oct. 2006 24 Termination Suit Is Pending?, Kassoff, M., Jan. 2003 32 Latest in Juries, The: What’s Happening Around the Country That’s of Successor Liability in New York, Kuney, G., Sept. 2007 22 Interest to New York Lawyers and Judges?, Krauss, E., Oct. 2006 16 Transactions That Imperil National Security, Model Guardianship Part, The: A Novel Approach, Sabino, A., Nov./Dec. 2005 20 Leis, H., III, June 2006 10 What Can a Competitor Do? The Dividing Line Between Permissible My Life as Chief Judge: The Chapter on Juries, Kaye, J., Oct. 2006 10 Competitive Behavior and Tortious Interference With Contract, Banks, G., Oct. 2007 10 New Rules on Surrogate’s Court Assignments Prompt Review of Issues in “Dead Man’s Statute”, Radigan, C.R., June 2003 19 Computers and the Law (see also Intellectual Property Law) New York Adopts Procedures for Statewide Coordination of Complex Beyond the Hold Notice in the Electronic Age, Barrasso, D.; Litigation, Herrmann, M.; Ritts, G., Oct. 2003 20 Haas, E., Sept. 2006 22 New York County Filing Project for Tax Certiorari Cases Records 30-fold Computers & the Law – Copyright Infringement Lawsuit Against Rise in Electronic Filings, Silbermann, J., Feb. 2004 30 YouTube, Miranda, D., Jul./Aug. 2007 46 Public Access to Court Decisions Expanded, Spivey, G., Jan. 2006 32 Computers & the Law – Enabling Copyright Infringement, Reflections – Judges’ Clerks Play Varied Roles in the Opinion Drafting Miranda, D., Oct. 2005 34 Process, Lebovits, G., Jul./Aug. 2004 34 Computers & the Law – GEICO v. Google and the Use of Trademarks by Self-Evaluation Privilege in the Second Circuit: Dead or Alive?, The, Search Engines, Miranda, D., Sept. 2006 44 Blum, R.; Turro, A., June 2003 44 Computers & the Law – Insurance Coverage for Intellectual Property Survey Shows Preferences of Northeastern Judges at Appellate Argument, Litigation, Miranda, D., Jul./Aug. 2005 4 Lewis, D., Oct. 2004 42 Computers & the Law – Supreme Court Permits Internet Wine Sales, What’s in Your Wallet? Attorney Designations in New York, Miranda, D., Feb. 2006 28 Brennan, D., Jan. 2006 34 E-Discovery: 2005 Update, Fellner G., Jul./Aug. 2006 30 Who’s Who? Researching Judicial Biographies, Manz, W., Feb. 2006 10 Computers + Connectivity = New Opportunities for Criminals and Covenants Not to Compete (see Commercial Law) Dilemmas for Investigators, Fedorek, T., Feb. 2004 10 Criminal Law Digging for Data – Today’s Discovery Demands Require Proficiency in Searching Electronic Documents, Wechsler, M.; 2005 Legislation Affecting the Practice of Criminal Law, Lange, M. Mar./Apr. 2004 18 Kamins, B., Jan. 2006 20 Electronic Discovery Can Unearth Treasure Trove of Potential Land 2006 Legislation Affecting the Practice of New York Criminal Law, Mines, Friedman Rosenthal, L., Sept. 2003 32 Kamins, B., Jan. 2007 39 Knowledge of Computer Forensics Is Becoming Essential for Attorneys in Forensic Social Work Reports Can Play Crucial Role in Mitigating the Information Age, Abrams, S.; Weis, P., Feb. 2003 8 Criminal and Immigration Cases, Silver, M., Mar./Apr. 2004 32 Lost Backup Tapes, Stolen Laptops, and Other Tales of Data-Breach Woe, New York’s Rockefeller Drug Laws, Then and Now, Friedberg, E.; McGowan, M., Feb. 2007 42 Maggio, E., Sept. 2006 30 Tale of Legal Research, A: Shepard’s® and KeyCite® Are Flawed (or Recent Second Circuit Cases Reinforce Criminal Discovery Standards Set Maybe It’s You), Wolf, A.; Wishart, L., Sept. 2003 24 by Supreme Court, Liotti, T., Jan. 2003 29 Threshold Decisions on Electronic Discovery, Brennan, K.; State and Federal Standards Require Proof of Discriminatory Intent in Martin, M., Nov/Dec. 2004 23 Ethnic Profiling Claims, McGuinness, J., Oct. 2003 29 Web Research Update – New Web Sites Add to Research Resources Crossword Available Online, Manz, W., Jan. 2003 42 Eldridge, J.D. Mar./Apr. 2003–Oct. 2004 Consumer Law Discrimination (see Labor and Employment) New York Consumers Enjoy Statutory Protections Under Both State and Elder Law (see Family Law and Trusts and Estates) Federal Statutes, Dickerson, T., Sept. 2004 10 Employment Law (see Labor and Employment) Contract Law (see Commercial Law) Environmental Law Environmental Remediation Process Is Undergoing Sweeping Changes Corporation Law (see Commercial Law) Mandated by New Brownfields Law, Desnoyers, D.; Schnapf, L., Oct. 2004 10
NYSBA Journal | November/December 2007 | 55 EPA’s New Clean Air Rules, The – Mixed Results for Air Quality, Smoke and Mirrors: The Fabrication and Alteration of Electronic Sullivan M.; Fazio, C., Jan. 2006 10 Evidence, Nelson, S.; Simek, J., June 2007 10 Imposition of Litigation Costs and Fees in Oil Spill Cases, Family Law Effinger, M., Nov./Dec. 2007 48 Court-Appointed Law Guardians Face Issues Involving Liability, Conflicts Is the Public Being Protected? A Lead Agency’s Duty Under SEQRA to and Disqualification, Muldoon, G., Jul./Aug. 2004 30 Review Newly Discovered Information, Bacon, J., Jan. 2007 32 Critical Net Worth Statement, The, DaSilva, W., Nov./Dec. 2007 53 ERISA (see Labor and Employment) Divorce Case Settlements Require Detailed Understanding of Pension Plan Options, David, R., May 2003 33 Estate Planning (see Trusts and Estates) Drafting Matrimonial Agreements Requires Consideration of Possible Estate Tax Law (see Trusts and Estates) Unconscionability Issues, Marrow, P.; Thomsen, K., Mar./Apr. 2004 26 Ethics and the Law (see Attorney Professionalism) Expediting Permanency for Children With 588 Adoptions, Cohen, R.; Hahn, R., Mar./Apr. 2007 31 Evidence In Vitro Fertilization Options Lead to the Question, “Who Gets the Pre- Burden of Proof – Beneath Contempt, Horowitz, D., Feb. 2007 18 Embryos After Divorce?”, Pollet, S., Feb. 2004 33 Burden of Proof – Bronx Tale, A, Horowitz, D., Nov./Dec. 2007 23 Is the Glass Half-Empty or Half-Full? The Unused or Underused License Burden of Proof – Can an Old Dog Learn New Tricks?, or Degree, Landau, H., Mar./Apr. 2006 46 Horowitz, D., Nov./Dec. 2006 20 Mediating Domestic Violence, Pollett, S., Sept. 2005 42 Burden of Proof – “Daddy, What Did You Do in Court Today?” New Law Gives Parents Authority to End Futile Treatment for Retarded Lying to My Children, Horowitz, D., June 2007 15 Adult Children, Golden, B., Feb. 2003 16 Burden of Proof – Deposition Tips Your Parents Taught You, Protecting the Protectors, Kwieciak, S., III, Feb. 2005 42 Horowitz, D., Mar./Apr. 2005 18 Reporting Elder Abuse: Legal Requirements for Physicians, Burden of Proof – Dillenbeck’s Back, Horowitz, D., Sept. 2006 14 Conway, G., Sept. 2007 38 Burden of Proof – “Dying to Get to the Courthouse . . .” Accelerated Responses to Juvenile Crime Consider the Extent of Parents’ Disclosure Under CPLR 3407, Horowitz, D., Feb. 2006 14 Responsibility for Children’s Acts, Pollet, S., Jul./Aug. 2004 26 Burden of Proof – HIPAA . . . Help!, Horowitz, D., June 2005 20 Same-Sex Marriage Under New York Law: Advising Clients in a State of Burden of Proof – “How Do I Dismiss Thee . . .?” – Part I, Uncertainty, Dorn, D., Jan. 2006 40 Horowitz, D., Jul./Aug. 2005 14 Freedom of Information (see Government and the Law) Burden of Proof – “How Do I Dismiss Thee . . .?” – Part II, Horowitz, D., Sept. 2005 18 Government and the Law Burden of Proof – “How Do I Dismiss Thee . . .?” – Part III, Challenges to Challenging the Patriot Act, Horowitz, D., Oct. 2005 18 Bohorquez, F., Jr., Feb. 2005 24 Burden of Proof – In the Beginning, Motions In Limine, Fine Line, A: The First Amendment and Judicial Campaigns, Horowitz, D., May 2005 16 Stern, G., Jan. 2005 10 Burden of Proof – Is Frye Still Generally Accepted?, Military Voting Rights Protection in New York, Bivona, J.; Horowitz, D., May 2006 22 Selkirk, A., Jr., June 2007 24 Burden of Proof – Is There a Doctor in the House? The Physician-Patient National Conference of Commissioners on Uniform State Laws, The – A Privilege May Need One! (Part I)!, Horowitz, D., Jul./Aug. 2007 15 Continuing Work in Progress, Long, R., June 2007 40 Burden of Proof – Is There a Doctor in the House? The Physician-Patient Need for Campaign Finance Reform in New York, The, Privilege May Need One! (Part II)!, Horowitz, D., Sept. 2007 16 Teff, J., Mar./Apr. 2007 36 Burden of Proof – No Interview for You!, Horowitz, D., May 2007 20 Tactics and Strategy for Challenges to Government Action Give Both Sides Much to Consider, Malone, L., Feb. 2004 40 Burden of Proof – “Note to File . . . Obey Court Orders!”, Horowitz, D. Jan. 2006 17 Helpful Practice Hints (see Law Practice) Burden of Proof – Objections & Objectionable Conduct at Depositions, History Horowitz, D., Jan. 2005 20 “A Firm Hand of Stern Repression”: United States v. O’Leary, Burden of Proof – Out With the Bad and in With the Good – New Manz, W., Jan. 2007 10 Depositions Rules to Take Effect October 1, 2006, “A Just Cause for War”: New York’s Dred Scott Decision, Horowitz, D., Oct. 2006 30 Manz, W., Nov./Dec. 2007 10 Burden of Proof – Sidestepping Sanctions, Bentley Kassal: Behind the Lens, Card, S., Sept. 2007 10 Horowitz, D., Mar./Apr. 2007 18 Court of Dreams, Card, S., Mar./Apr. 2005 10 Burden of Proof – Small Shocks & Lots of Static: Developments in Electronic Disclosure, Horowitz, D., Jul./Aug. 2006 18 Death by Statute: The Turbulent History of New York’s Death Penalty, Maggio, E., Feb. 2005 10 Burden of Proof – Spoliation . . . Not Spoilation, Horowitz, D., Mar./Apr. 2006 17 Harness Racing and New York’s Ethics Laws, Liebman, B., May 2007 10 Burden of Proof – “Take My Evidence . . . Please!”, Historical Perspective – Benjamin Cardozo Meets Gunslinger Bat Horowitz, D., Oct. 2007 22 Masterson, Manz, W., Jul./Aug. 2004 10 Burden of Proof – “Will the Gatekeeper Let Daubert In?”, Historical Perspective – Desegregation in New York: The Jamaica School Horowitz, D., June 2006 18 War, 1895–1900, Manz, W., May 2004 10 Burden of Proof – “You’ve Got Mail” (And You Better Not Delete It!): Historical Perspective – Office of N.Y. Attorney General Sets Pace for New Federal Rules Governing Electronic Discovery, Others Nationwide, Weinberg, P., June 2004 10 Horowitz, D., Jan. 2007 20 “I do solemnly swear” The Evolution of the Attorney’s Oath in New York Frye Meets Parker and the Effect on Toxic Exposure Cases, Kern, D.; State, Emery, R., Jan. 2005 48 Kenney, R., Jr., Mar./Apr. 2007 26
56 | November/December 2007 | NYSBA Journal “Of Practical Benefit” – Book Chronicles First 125 Years of New York Law Practice Management: Case Chronologies Create Litigation State Bar Association, Feb. 2004 44 Efficiencies, Krehel, G., Mar./Apr. 2005 40 Owls Shouldn’t Claw at Eagles: Big Ed Reilly and the Lindbergh Law Practice Management: Maintenance of Conflict Procedures, Kidnapping Case, Manz, W., June 2005 10 Rice, M., Jul./Aug. 2007 28 Palsgraf 75th Anniversary – Trial Judge Burt Jay Humphrey Had Long Law Practice Management: Parting May Be Sweet Sorrow, But It’s Career as Jurist, Manz, W., May 2003 10 Getting More Expensive, Giuliani, P., May 2006 32 People v. Gillette: The Trial of the 20th Century Lives on in the 21st, Law Practice Management: Partner Compensation Plans, Smith, T., Jul./Aug. 2006 10 Rose, J., Mar./Apr. 2006 42 Religious Motif in Law and Nation Building: An American Federalist Law Practice Management: Why Practice Management?, Perspective, Kelly, F., Jul./Aug. 2007 24 Munneke, G., Oct. 2007 46 Remembering Brown, Finch, M., Oct. 2005 44 Legal Research: Recent Developments, Manz, W., Mar./Apr. 2006 49 Scenic Standing: The 40th Anniversary of Scenic Hudson and the Birth of Legal Research: Researching New York Records and Briefs, Environmental Litigation, Card, S., Sept. 2005 10 Manz, W., Feb. 2007 30 Insurance Law (see Torts and Negligence) Legal Research: Researching New York State Administrative Rules and Regulations, Manz, W., May 2007 40 Intellectual Property (see also Computers and the Law) Practice Tips: Ensuring an Accurate Transcript, Appropriating Artists Face Uncertainty in Interplay Between First Sale Armstrong, D., Mar./Apr. 2006 40 and Fair Use Doctrines, Sanders, J., Jul./Aug. 2004 18 Preparing for Your First Oral Argument, Bennett, S., Jul./Aug. 2007 44 Wave of the Future or Blatant Copyright Infringement?, The Presentation Skills for Lawyers: Adding Power to PowerPoint Digitalization of Libraries and Other Works, Presentations, Wilcox, E., June 2007 48 Hecker, J., May 2007 44 Presentation Skills for Lawyers: “Our next speaker needs no What Makes a Case “Exceptional”? Awarding Attorney Fees in introduction . . .” (Yes, he does), Wilcox, E., Sept. 2006 46 Trademark Litigation, Holzman, L.; Hsia, S.; Bennett, P.; Burns, M., Mar./Apr. 2006 34 Presentation Skills for Lawyers: Powerful Openings, Wilcox, E., Nov./Dec. 2006 30 International Law Presentation Skills for Lawyers: Speaking “Off the Cuff”, Economic Globalization and Its Impact Upon the Legal Profession, Wilcox, E., Feb. 2007 47 Moore, J., May 2007 35 Presentation Skills for Lawyers: Start With the End in Mind, Russia in Transition – Sharing Legal System Objectives as Russia Revives Wilcox, E., Mar./Apr. 2007 51 Trial by Jury, Marks, P.; Bennett, M.; Puscheck, B.; Presentation Skills for Lawyers: The Joke Shouldn’t Be on You, Reinstein, R., Mar./Apr. 2003 36 Samansky, A.; Samansky, E., Nov./Dec. 2006 36 Trading on the Pink Sheets: The Lesson of Yukos Oil, Presentation Skills for Lawyers: The Power of Eye Contact, Popova, E., Sept. 2007 32 Wilcox, E., Jan. 2007 30 Judiciary / Juries (see Courts) Presentation Skills for Lawyers: The Rule of Three, Labor and Employment Wilcox, E., Sept. 2007 49 Attorney Labor Unions, Rubinstein, M., Jan. 2007 23 Sweeping Changes to Lawyer Advertising Scheduled to Take Effect November 1, 2006, Sept. 2006 20 Consumer Directed Assistance Program Offers Greater Autonomy to Recipients of Home Care, Bogart, V., Jan. 2003 8 Third Series, The: A Review, Lebovits, G., Mar./Apr. 2005 30 “Final Regulations” Set Rules for Distributions From IRAs and Qualified Unintended Consequences: Avoiding and Addressing the Inadvertent Retirement Plans, Neumark, A.; Slater-Jansen, S., Feb. 2003 38 Disclosure of Documents, Barrer, R., Nov./Dec. 2005 35 Grutter and Gratz Decisions Underscore Pro-Diversity Trends in Schools Legal and Medical Malpractice (see Torts and Negligence) and Businesses, Higgins, J., Jan. 2004 32 Legal Education (see Attorney Professionalism) Irregular Migrants and Compensation for Personal Injury: Resolution and Ambiguity, Bhandari, J., Feb. 2007 33 Legal Profession (see Attorney Professionalism) Labor Law: Heightened Regulations and Licensing Requirements Raise the Legal Writing Bar for PEOs, Basso, L., June 2007 42 Academic Legal Writing: How to Write and Publish, Protections for Public Employees Who “Blow the Whistle” Appear to Be Lebovits, G., Jan. 2006 64 Inadequate, Herbert, W., Feb. 2004 20 Apostrophe’s and Plurals’, Lebovits, G., Feb. 2004 64 So What’s ERISA All About?, Ehlers, S.; Wise, D., Oct. 2005 22 Beyond Words: New Tools Can Enhance Legal Writing, Who’s the Boss? New York Defines Roles in the Professional Employer Collins, T.; Marlett, K., June 2003 10 Organization Act, Salkin, B., Jul./Aug. 2005 34 Bottom Line on Endnotes and Footnotes, The, Lebovits, G., Jan. 2003 64 Landlord / Tenant Law (see Real Property Law) Comparisons and Logic, Lebovits, G., Oct. 2006 64 Land-Use Regulations (see Real Property Law) Department of Redundancy Department, The: Concision and Succinctness — Part I, Lebovits, G., Jul./Aug. 2006 64 Law Practice Department of Redundancy Department, The: Concision and Succinctness Developing Associates: “Shadowing” Program Provides Early Mentoring — Part II, Lebovits, G., Sept. 2006 64 Opportunities, Levine, A.; Birnbaum, E., Jul./Aug. 2003 42 Devil’s in the Details for Delusional Claims, The, If It’s Out There: Researching Legislative Intent in New York, Lebovits, G., Oct. 2003 64 Manz, W., Mar./Apr. 2005 43 Do’s, Don’ts, and Maybes: Legal Writing Do’s — Part I, Law Office Management – Yesterday’s Strategies Rarely Answer Lebovits, G., May 2007 64 Tomorrow’s Problems, Gallagher, S.; Sienko, L., Jr., Sept. 2004 40 Do’s, Don’ts, and Maybes: Legal Writing Do’s — Part II, Law Practice Management, Kinard, M., Jan. 2005 41 Lebovits, G., June 2007 64
NYSBA Journal | November/December 2007 | 57 Do’s, Don’ts, and Maybes: Legal Writing Don’ts — Part I, You Can Quote Me: Quoting in Legal Writing – Part I, Lebovits, G., Jul./Aug. 2007 64 Lebovits, G., May 2004 64 Do’s, Don’ts, and Maybes: Legal Writing Don’ts — Part II, You Can Quote Me: Quoting in Legal Writing – Part II, Lebovits, G., Sept. 2007 64 Lebovits, G., June 2004 64 Do’s, Don’ts, and Maybes: Legal Writing Grammar — Part I, You Think You Have Issues? The Art of Framing Issues in Legal Writing Lebovits, G., Nov./Dec. 2007 80 — Part I, Lebovits, G., May 2006 64 Ethical Judicial Writing — Part I, Lebovits, G., Nov./Dec. 2006 64 You Think You Have Issues? The Art of Framing Issues in Legal Writing Ethical Judicial Writing — Part II, Lebovits, G., Jan. 2007 64 — Part II, Lebovits, G., June 2006 64 Ethical Judicial Writing — Part III, Lebovits, G., Feb. 2007 64 Liens (see Real Property Law) Free at Last from Obscurity: Clarity, Lebovits, G., Nov./Dec. 2003 64 Litigation (see Trial Practice) Free at Last from Obscurity: Clarity – Part 2, Lebovits, G., Jan. 2004 64 Matrimonial Law (see Family Law) Ineffective Devices: Rhetoric that Fails, Lebovits, G., Feb. 2003 64 Mortgages and Liens (see Real Property Law) Judicial Jesting: Judicious?, Lebovits, G., Sept. 2003 64 Poetry Language Tips Column, Block, G., Jan. 1999–Dec. 2000; Feb., David Orr – In a Grand Tradition, Finch, M., Jul./Aug. 2005 10 Mar./Apr., June, Jul./Aug., Oct., Nov./Dec. 2001; Jan.–Nov./Dec. 2002; Jan.–May, Jul./Aug., Sept. 2003; Feb., May, June, July/Aug., Point of View Oct. 2004; Jan. 2005–Nov./Dec. 2007 Being Respectful and Respected in the Practice of Law, Learning Disabilities and the Legal Writer, Lebovits, G., Sept. 2005 64 Magner, P., Jr., Nov./Dec. 2003 39 Legal Writing Ethics — Part I, Lebovits, G., Oct. 2005 64 Cardozo Mystery, The, Kornstein, D., May 2003 47 Legal Writing Ethics — Part II, Lebovits, G., Nov./Dec. 2005 64 Chess and the Art of Litigation, Weiner, G., Oct. 2003 46 Legal-Writing Myths — Part I, Lebovits, G., Feb. 2006 64 Conflicts Between Federal and State Law Involving the Spousal Right of Election, Rachlin, M., June 2003 52 Legal-Writing Myths — Part II, Lebovits, G., Mar./Apr. 2006 64 Counterpoint – Pommells: The Facts, Nothing But the Facts, Pox on Vox Pop, A, Lebovits, G., Jul./Aug. 2004 64 Hutter, M.; Horowitz, D., June 2006 42 Problem Words and Pairs in Legal Writing – Part I, Double-Dipping Lives On. Holterman and the Continuation of the Lebovits, G., Feb. 2005 64 O’Brien Dilemma, Rosenberg, L., Sept. 2004 50 Problem Words and Pairs in Legal Writing – Part II, Medicaid Planning: An Obligation to Senior Citizens, Lebovits, G., Mar./Apr. 2005 64 Rachlin, M., Sept. 2004 52 Problem Words and Pairs in Legal Writing – Part III, Move Village Elections to November, Greenawalt, W.; Lebovits, G., May 2005 64 Koenigsberg, D., Nov./Dec. 2006 24 Problem Words and Pairs in Legal Writing – Part IV, New York Addresses Climate Change With the First Mandatory U.S. Lebovits, G., June 2005 64 Greenhouse Gas Program, Sussman, E., May 2006 43 Problem Words and Pairs in Legal Writing – Part V, New York State’s Medical Malpractice Plan: Unfunded, Unworkable, and Lebovits, G., Jul./Aug. 2005 64 Unconstitutional, Haskel, M., Feb. 2006 30 Sentences and Paragraphs: A Revisionist Philosophy, New York’s Judicial Selection Process Is Fine – It’s the Party System That Lebovits, G., Jan. 2005 64 Needs Fixing, Gardner, J., Sept. 2007 42 Short Judicial Opinions: The Weight of Authority, Public Service Tradition of the New York Bar, The, Lebovits, G., Sept. 2004 64 Nathan, F., Jul./Aug. 2003 48 Sin and Virtue in Legal Writing: Vanity and Humility, Representing an Incapacitated Person at a Fair Hearing, Lebovits, G., Mar./Apr. 2007 64 Rachlin, M., Sept. 2003 52 Statements of Material Facts in Summary Judgment Motions Require Re-thinking Retirement, Seymour, W.N., Jr., Jan. 2003 50 Careful Draftsmanship, Campolo, J.; Penzer, E., Feb. 2003 26 Slippery Slope, A: Discovery of Attorney Work Product, Tanbook, Bluebook, and ALWD Citations: A 2007 Update, Gabriel, R., Mar./Apr. 2004 50 Lebovits, G., Oct. 2007 64 Standing Down From the War on Drugs, Weinstein, J., Feb. 2003 55 Technique: A Legal Method to the Madness, Lebovits, G., June 2003 64 State Legislative Power Supercedes Federal Laws in Accounting Reform, Technique: A Legal Method to the Madness – Part 2, Grumet, L., Mar./Apr. 2004 54 Lebovits, G., Jul./Aug. 2003 64 Teed Off: The Rise in Golf Rage and Resulting Legal Liability, That’s the Way It Is: “That” and “Which” in Legal Writing, Lang, R., Oct. 2004 48 Lebovits, G., Mar./Apr. 2004 64 Woe Unto You, Lawyers in the Tax Shelter Business, Uppercasing Needn’t Be a Capital Crime, Lebovits, G., May 2003 64 Lurie, A., Mar./Apr. 2003 48 Write the Cites Right – Part I, Lebovits, G., Oct. 2004 64 Privileges (see Evidence) Write the Cites Right – Part II, Lebovits, G., Nov./Dec. 2004 64 Writers’ Block: The Journal Peeks Behind the Column to Meet One of the Probate (see Trusts and Estates) Nation’s Most Trusted Legal-Writing Advisers: Professional Responsibility (see Attorney Professionalism) Gertrude Block, Card, S., Sept. 2006 10 Real Property Law Writing Clinic – Examine Your Grammatical Acumen, McCloskey, S., Sept. 2004 30 Construction Insurance: Do You Only Get What You Pay For?, Loveless, J., Mar./Apr. 2006 10 Writing Clinic – Make Your Mark With Punctuation, McCloskey, S., Nov./Dec. 2003 18 First Court Case to Interpret Property Condition Disclosure Act Holds Sellers Not Liable, Holtzschue, K., Mar./Apr. 2003 Writing on a Clean Slate: Clichés and Puns, Lebovits, G., Mar./Apr. 2003 64 Metes and Bounds – Has the Court of Appeals Defined What Is Meant by a “Claim of Right” in Adverse Possession Cases?, Maker, W., Jr., Mar./Apr. 2007 48
58 | November/December 2007 | NYSBA Journal Metes and Bounds – Payoff on the Eve of Sale, Bergman, B., Brief Introduction to Florida Tort Law for New York Attorneys, A, May 2006 34 Kirschner, M.; Draper, C., May 2007 23 Metes and Bounds – Predatory Lending for All, Bergman, B., Canceling a Private Passenger Automobile Policy, Lustig, M.; Sept. 2005 46 Schatz, J., May 2005 33 Metes and Bounds – Tax Assessment Proceedings and the Role of the Board Careful Defense Groundwork on Independent Medical Exams Can Help of Assessment Review, Brown, M. Nov./Dec. 2007 51 Balance Trial Testimony, Lang, R. Jan. 2003 17 Metes and Bounds – The Lien Law Trust: Lenders Beware, Berey, M., Feb. Early Review by Medical Experts Offers Opportunity to Develop Theory 2007 40 of the Case More Efficiently, Wilkins, S., Jul./Aug. 2004 42 Metes and Bounds – (True) Purchase Money Mortgage and Usury, Insurance Department Regulations to Stem Fraudulent No-Fault Claims Bergman B., Jan. 2006 30 Upheld by Court of Appeals, Billy, M., Jr.; Short, S., Jan. 2004 40 Paying Off a Mortgage, Bergman, B., Mar./Apr. 2005 47 Know Thine Expert – Expert Witness Discovery in Medical Malpractice So Your Client Wants to Buy at a Foreclosure Sale: Pitfalls and Cases, Wilkins, S., Nov./Dec. 2004 31 Possibilities, Bergman, B., Sept. 2003 43 Litigators Must Prepare for Risk that Insurers May Go Into Rehabilitation Tax Certiorari & Condemnation in the 9th Judicial District, or Liquidation, Gillis, M.; Calareso, J., Jr., Mar./Apr. 2003 20 Dickerson, T., June 2006 22 Medicolegal Aspects of Whiplash – A Primer for Attorneys, This Land Is Your Land? Eminent Domain’s Public Use Limitation, D’Antoni, A., Oct. 2003 10 Wilkes, D.; Cavallaro, J., Oct. 2005 10 Modern Cruise Passenger’s Rights and Remedies, The, – Part I, When a Mortgage Commitment Is Issued But Later Revoked, Who Keeps Dickerson, T., Mar./Apr. 2007 10 the Down Payment?, Penzer, E., Sept. 2004 35 Modern Cruise Passenger’s Rights and Remedies, The, – Part II, Whole Truth, The? The Problem With “Truth in Lending”, Seaquist, G.; Dickerson, T., June 2007 18 Bramhandkar, A., June 2006 30 New Court of Appeals Ruling Bolsters Use of Res Ipsa Loquitur in Yellowstone Injunctions in Federal Court, Yankelunas, E., Sept. 2005 36 Medical Malpractice Cases, Rogak, J., June 2003 28 New York Insurance Department: Discretionary Clauses Violate the Retirement (see Labor and Employment) Insurance Law, Gerber, D.; Whistler, K., Sept. 2006 18 Science and Technology “No-Prejudice” Rule Survives, Somewhat, The, Expert Sourcing: Providing Small Firms With Large Firm Information Timken, N., Feb. 2006 40 Technology Resources, Randall, S., Feb. 2005 36 Not for the Faint of Heart – Additional Personal Injury Protection (APIP) Securities Law (see Commercial Law) Benefits, Pajak, G.; Loftus, K., Mar./Apr. 2006 22 Tax Law Paradigm Shift in No-Fault “Serious Injury” Litigation, Nohavicka, J., Jan. 2006 26 New Scrutiny on Tax Deduction of Settlements, Wood, R., Nov./Dec. 2007 28 Progress Against the Tide: Managing Tort Claims Against the City of New York, Leoussis, F., May 2006 36 Other Shoe, The: IRS Begins Enforcement Action Under Offshore Credit Card and Financial Arrangement Probe, Andersen, R., Remarks at Annual Meeting Dinner, January 22, 2003, Kaye, J., Mar./Apr. 2006 30 Nov./Dec. 2004 35 Settlements and Taxes: The Seven Deadly Sins, Wood, R., Feb. 2004 52 Removal of Personal Injury Actions to New York Federal District Courts, Barrer, R., Oct. 2006 34 Specialty Retirement Plans, Kozol, G., Jul./Aug. 2004 50 Scaffold Law Liability, Pixley, W., Oct. 2005 30 Tax Alert – Major Changes in Rules Governing NQDCAs, Mack, B., Sept. 2005 32 Subrogation Rights of Health Care Providers, Hayes, J., Nov./Dec. 2006 32 Tax Alert – Supreme Court Rules on Tax Treatment of Attorneys’ Contingent Fees, Mannino, L., Feb. 2006 47 Take the Money and Run: The Fraud Crisis in New York’s No-Fault System, Stern, R., Oct. 2003 35 When High-Priced Celebrity Lawyers Are Tax Deductible, Wood, R., Feb. 2007 10 Third Parties Can Have Rights to Property Insurance Proceeds in Specific Circumstances, Binsky, M., Oct. 2003 24 Tax Techniques (see Tax Law) Twenty Years of Decisions Have Refined “Serious Injury” Threshold in Torts and Negligence No-Fault Accident Cases, Centone, A., May 2003 36 2002 Update on Issues Affecting Accidents Involving Uninsured and/or Uninsured Motorist/Supplementary Uninsured and Underinsured Underinsured Motorists, Dachs, J., June 2003 32 Motorist Update – Part I: A Review of Cases Decided in 2006, 2003 Update on Issues Affecting Accidents Involving Uninsured and/or Dachs, J., June 2007 30 Underinsured Motorists, Dachs, J., May 2004 38 Uninsured Motorist/Supplementary Uninsured and Underinsured 2004 Case Update – Part I: Uninsured, Underinsured, Supplementary Motorist Update – Part II: A Review of Cases Decided in 2006, Uninsured Motorist Law, Dachs, J., May 2005 38 Dachs, J., Jul./Aug. 2007 35 2004 Case Update – Part II: Uninsured, Underinsured, Supplementary Trial Practice Uninsured Motorist Law, Dachs, J., June 2005 24 2005: A Banner Year for Juries, Kaye, J., May 2005 20 2005 Update on Uninsured, Underinsured and Supplementary Uninsured Analytical Tools – Distinguishing Intended Deception from Unconscious Motorist Law – Part I, Dachs, J., June 2006 34 Inaccuracy, Teff, J., Mar./Apr. 2004 42 2005 Update on Uninsured, Underinsured and Supplementary Uninsured Analytical Tools – How to Spot a Lie: Checking Substance and Source, Motorist Law – Part II, Dachs, J., Jul./Aug. 2006 22 Teff, J., Jul./Aug. 2003 27 Are Medicare, Medicaid, and ERISA Liens? Resolving “Liens” in Analytical Tools – Human Memory Is Far More Fallible and Malleable Personal Injury Settlements, Hayes, J., Sept. 2007 28 Than Most Recognize, Teff, J., June 2004 38 Banking Law Sets Strict Procedures for Canceling Insurance Policies Paid Class Warfare: Aggregating and Prosecuting Consumer Claims as Class Through Finance Companies, Lustig, M., June 2004 18 Actions – Part I, Dickerson, T., Jul./Aug. 2005 18
NYSBA Journal | November/December 2007 | 59 Class Warfare: Aggregating and Prosecuting Consumer Claims as Class Going Beyond the Will: A Primer on Legacy Planning for Attorneys, Actions – Part II, Dickerson, T., Oct. 2005 36 Friedman, S.; Weinstein, A., Oct. 2007 30 CLE Insights: Current Trends on Rules for Hearsay, Guardian ad Litem Procedures Reflect Traditional Court Concerns for Barker, R., May 2003 28 Those Lacking Representation, Groppe, C., Nov./Dec. 2003 32 CLE Insights: Evidence – Effective Techniques for Impeaching Witnesses, Kinship Proceedings: Proving the Family Tree, Adler, D., June 2005 42 Meagher, W., Jr., Mar./Apr. 2003 28 New Rules Published for Fiduciary Appointments May 2003 42 CLE Insights: Pretrial Expert Disclosure in State Court Cases, Planning Ahead – 2006 New York State Legislation Session Changes Horowitz, D., Sept. 2003 10 Affecting Trust & Estate Law, Rubenstein, J., Jul./Aug. 2007 32 Daubert Debacle, The, Miller, H., Mar./Apr. 2005 24 Planning Ahead – A New Weapon for Objectants? Probate Contests & Defense Lawyer’s Guide to No-Fault Litigation in New York State, A, Waiver of the Attorney-Client Privilege, Cooper, I.; Lustig, M.; Schatz, J., Oct. 2007 40 La Ferlita, J., Oct. 2006 46 Experts in Low Speed Impact Litigation, Maguire, R., Jan. 2005 43 Planning Ahead – Creditors’ Claims – Do They Die With the Debtor?, Is It Junk or Genuine? Precluding Unreliable Scientific Testimony in New Marcuccio E.; Kukol, A., Feb. 2006 18 York, Schwab, H., Nov./Dec. 2004 10 Planning Ahead – Domicile – Estate Planning Issues for the Mobile Is It Junk or Genuine? Part II, Schwab, H., Jan. 2005 25 Client, Michaels, P.; Twomey, L.; Brown, L., Jul./Aug. 2006 37 Jury Nullification, Haskel, M., Jan. 2005 31 Planning Ahead – Estate Planning in the Face of Divorce, Freidman, G., June 2005 39 Jury Trial Innovations in New York State, Krauss, E., May 2005 22 Planning Ahead – Everyone Needs a Will, Litigation Strategies: Dissecting the Deposition: More Than Just a Set of Schlesinger, S., May 2005 30 Questions, Glick, R., Jul./Aug. 2003 10 Planning Ahead – Revocable Trusts: Fact or Fiction, Psychological Testimony on Trial – Questions Arise About the Validity of Whitaker, G., Jul./Aug. 2005 44 Popular Testing Methods, Erickson, S., Jul./Aug. 2003 19 Planning Ahead – The Deductible New York Estate Tax, View From the Bench – Drafting Pendente Lite Motions, Rothberg, R., Feb. 2006 44 Giacomo, W., Jan. 2007 45 Proposed Amendment to EPTL 4-1.4, Cooper, I.; Graber, S., June 2005 34 View From the Bench – Preparing an Expert Witness Is a Multi-Step Process, DiBlasi, J., May 2003 22 Qualified Personal Residence Trusts Offer Helpful Planning Options for Potentially Large Estates, Michaels, P.; Twomey, L., Nov./Dec. 2003 10 View From the Bench – The Role of Trial Court Opinions in the Judicial Process, Nesbitt, J., Sept. 2003 39 State Budget Shortfall in 2003 Was Impetus Behind Many Changes Affecting Trusts and Estates, Rubenstein, J., Jan. 2004 26 Trusts and Estates Surrogate’s Court Discovery – Recent Cases Illustrate Changes Under All in the Family: A How-to Guide on Lending to Family Members, Provisions of SCPA, Bashian, G.; Yastion, J., Nov./Dec. 2004 20 Michaels, P.; Twomey, L., Feb. 2005 38 Trust Glossary – Trusts Provide Variety of Options to Manage and Protect Changes Affecting Trust & Estate Law, Rubenstein, J., Sept. 2005 28 Assets, Mariani, M., Jan. 2003 38 Changes in Estate and Gift Taxes Will Increase Exemption Amounts and When the Baby Boom Boomerangs: Elder Law Section Publishes Long- Lower Federal Rates, Mark, D.; Schlesinger, S., Sept. 2001 37 Term Care Report, Angione, H., Jul./Aug. 2005 28 Dividing Interests in Real Property Can Lead to Differences Among Competing Interests, Donlon, E., Nov./Dec. 2003 27
The Journal’s 2007 Statement of Ownership, Management and Circulation
60 | November/December 2007 | NYSBA Journal INDEX TO AUTHORS 2003–2007
The following index lists the authors of all articles that have appeared in the Journal since the January 2003 edition. Below each author’s name is the general classification category used for the article. The headline describing the content of the article appears under that classifica- tion category in the Index to Articles that begins on page 54.
Abrams, Steven M. 2001; Jan. 2002–Nov./Dec. 2002; Jan.–May, Diamond, Shari Seidman Computers and the Law Feb. 2003 8 Jul./Aug., Sept. 2003; Feb., May–Jul./Aug., Courts Oct. 2006 23 Adler, David N. Oct.–Nov./Dec. 2004; Jan. 2005–Nov./Dec. DiBlasi, John P. Trusts and Estates June 2005 42 2007 Trial Practice May 2003 22 Alcott, Mark H. Blum, Ronald G. Dickerson, Thomas A. Books on Law Jul./Aug. 2005 52 Courts June 2003 44 Consumer Law Sept. 2004 10 Andersen, Richard E. Bogart, Valerie J. Real Property Law June 2006 22 Tax Law Mar./Apr. 2006 30 Labor and Employment Jan. 2003 8 Torts and Negligence Mar./Apr. 2007 10 Angione, Howard Bohorquez, Fernando, A., Jr. Torts and Negligence June 2007 18 Trusts and Estates Jul./Aug. 2005 28 Government and the Law Feb. 2005 24 Trial Practice Jul./Aug. 2005 18 Armstrong, Denise Bramhandkar, Alka Trial Practice Oct. 2005 36 Law Practice Mar./Apr. 2006 40 Real Property Law June 2006 30 DiLorenzo, Louis P. Attorney Professionalism Committee Brennan, Daniel C. Attorney Professionalism Attorney Professionalism, Forum May– Courts Jan. 2006 34 Mar./Apr. 2003 8 Nov./Dec. 2003; Jan. 2004–Nov./Dec. 2007 Brennan, Kerry A. Donlon, Elizabeth Pollina Ayres, Ian Computers and the Law Trusts and Estates Nov./Dec. 2003 27 Commercial Law May 2006 26 Nov./Dec. 2004 23 Dorn, Derek B. Alexis, Gwendolyn Yvonne Brown, Lindsay H. Family Law Jan. 2006 40 Commercial Law Mar./Apr. 2007 22 Trusts and Estates Jul./Aug. 2006 37 Draper, Charles B. Bacon, James Bryan Brown, Marc W. Torts and Negligence May 2007 23 Environmental Law Jan. 2007 32 Real Property Nov./Dec. 2007 51 Effinger, Montgomery L. Bamberger, Phylis Skloot Burns, Michael S. Environmental Law Nov./Dec. 2007 48 Courts Oct. 2006 24 Intellectual Property Mar./Apr. 2006 34 Ehlers, Stephen E. Banks, Glen Buzard, A. Vincent Labor and Employment Oct. 2005 22 Commercial Law Oct. 2007 10 Appeals May 2007 30 Eldridge, J. David Barker, Robert A. Calareso, John P., Jr. Crossword Puzzle Trial Practice May 2003 28 Torts and Negligence Mar./Apr. 2003 20 Mar./Apr. 2003–June 2004 Barrasso, Diane S. Campolo, Joseph N. Emery, Robert A. Computers and the Law Sept. 2006 22 Legal Writing Feb. 2003 26 History Jan. 2005 48 Barrer, Robert A. Card, Skip Erickson, Steven K. Law Practice Nov./Dec. 2005 35 History Mar./Apr. 2005 10 Trial Practice Jul./Aug. 2003 29 Torts and Negligence Oct. 2006 34 History Sept. 2005 10 Fazio, Christine A. Bashian, Gary E. History Sept. 2007 10 Environmental Law Jan. 2006 10 Trusts and Estates Nov./Dec. 2004 20 Legal Writing Sept. 2006 10 Feathers, Cynthia Basso, Louis Cavallaro, John D. Appeals Feb. 2004 36 Labor and Employment Law June 2007 42 Real Property Law Oct. 2005 10 Fedorek, Thomas Beane, Joy Centone, Anthony J. Computers and the Law Feb. 2004 10 Courts Nov./Dec. 2006 10 Torts and Negligence May 2003 36 Feldman, Howard Beha, James A., II Cohen, Ronald H. Banking / Finance Law Sept. 2005 23 Civil Procedure Jan. 2003 22 Family Law Mar./Apr. 2007 31 Fellner, Gary M. Bennett, Mark W. Collins, Thomas G. Commercial Law Oct. 2007 26 International Law Mar./Apr. 2003 36 Legal Writing June 2003 10 Computers and the Law Jul./Aug. 2006 30 Bennett, Philippe Connelly, Chris Finch, Monica Intellectual Property Mar./Apr. 2006 34 Courts Oct. 2006 19 History Oct. 2005 44 Bennett, Steven C. Conway, Gail C. Poetry Jul./Aug. 2005 10 Arbitration Nov./Dec. 2005 26 Family Law Sept. 2007 38 Flora, Jonathan R. Law Practice Jul./Aug. 2007 44 Cooper, Ilene S. Books on Law Jul./Aug. 2005 50 Berey, Michael J. Trusts and Estates June 2005 34 Freidman, Gary B. Real Property Law Feb. 2007 40 Trusts and Estates Oct. 2006 46 Trusts and Estates June 2005 39 Bergman, Bruce J. Dachs, Jonathan A. Friedberg, Eric Real Property Law Sept. 2003 43 Torts and Negligence June 2003 32 Computers and the Law Feb. 2007 42 Real Property Law Mar./Apr. 2005 47 Torts and Negligence May 2004 38 Friedman Rosenthal, Lesley Real Property Law Sept. 2005 46 Torts and Negligence May 2005 38 Commercial Law Nov./Dec. 2007 35 Real Property Law Jan. 2006 30 Torts and Negligence June 2005 24 Computers and the Law Sept. 2003 32 Real Property Law May 2006 34 Torts and Negligence June 2006 34 Friedman, Scott E. Bhandari, Jagdeep S. Torts and Negligence Jul./Aug. 2006 22 Trusts and Estates Oct. 2007 30 Labor and Employment Law Feb. 2007 33 Torts and Negligence June 2007 30 Gabriel, Richard Billy, Michael, Jr. Torts and Negligence Jul./Aug. 2007 35 Point of View Mar./Apr. 2004 5 Torts and Negligence Jan. 2004 40 D’Antoni, Anthony Gallagher, Stephen P. Binsky, Mark Ian Torts and Negligence Oct. 2003 10 Law Practice Sept. 2004 40 Torts and Negligence Oct. 2003 24 DaSilva, Willard H. Gardner, James A. Birnbaum, Eve D. Family Law Nov./Dec. 2007 53 Point of View Sept. 2007 42 Law Practice Jul./Aug. 2003 42 David, Reuben Gerber, Daniel W. Bivona, John C. Family Law May 2003 33 Torts and Negligence Sept. 2006 18 Government and the Law June 2007 24 Davidowitz, Edward M. Gesualdi, James F. Block, Gertrude Courts Nov./Dec. 2006 10 Animal Law Jul./Aug. 2007 20 Legal Writing, Language Tips Jan. Desnoyers, Dale Giacomo, William J. 1999–Nov./Dec. 2000; Feb. 2001–Nov./Dec. Environmental Law Oct. 2004 10 Trial Practice, Jan. 2007 43
NYSBA Journal | November/December 2007 | 61 Gillis, Margaret J. Kaye, Judith S. Torts and Negligence May 2005 33 Torts and Negligence Mar./Apr. 2003 20 Courts Oct. 2006 10 Trial Practice Oct. 2007 40 Giuliani, Peter A. Torts and Negligence Nov./Dec. 2004 35 Mack, Barrett D. Law Practice May 2006 32 Trial Practice May 2005 20 Tax Law Sept. 2005 32 Glick, Robert A. Keating, Robert G.M. Maggio, Edward J. Trial Practice Jul./Aug. 2003 10 Attorney Professionalism May 2005 10 Criminal Law Sept. 2006 30 Goldberg, Barbara DeCrow Kelly, Frank V. History Feb. 2005 10 Civil Practice Mar./Apr. 2007 41 History Jul./Aug. 2007 24 Magner, Philip H., Jr. Golden, Ben Kenney, Robert J., Jr. Point of View Nov./Dec. 2003 39 Family Law Feb. 2003 16 Evidence Mar./Apr. 2007 26 Maguire, Richard R. Golden, Paul Kern, Dwight A. Trial Practice Jan. 2005 43 Commercial Law Oct. 2004 36 Evidence Mar./Apr. 2007 26 Mahler, Peter A. Graber, Staci A. Kinard, M. Lewis Commercial Law Oct. 2004 28 Trusts and Estates June 2005 34 Law Practice Jan. 2005 41 Maker, William, Jr. Greenawalt, William S. Kirschner, Michael B. Real Property Law Mar./Apr. 2007 48 Point of View Nov./Dec. 2006 24 Torts and Negligence May 2007 23 Malone, Lawrence G. Groppe, Charles J. Klass, Gregory Government and the Law Feb. 2004 40 Trusts and Estates Nov./Dec. 2003 32 Commercial Law May 2006 26 Mannino, Laura Lee Grumet, Louis Koenigsberg, David A. Tax Law Feb. 2006 47 Point of View Mar./Apr. 2004 54 Point of View Nov./Dec. 2006 24 Manz, William H. Haas, Erik Kornstein, Daniel Computers and the Law Jan. 2003 42 Computers and the Law Sept. 2006 22 Point of View May 2003 47 Courts Feb. 2006 10 Hahn, Rachel Krane, Steven C. History May 2003 10 Family Law Mar./Apr. 2007 31 Attorney Professionalism May 2005 28 History May 2004 10 Hannaford-Agor, Paula Krauss, Elissa History Jul./Aug. 2004 10 Courts Oct. 2006 19 Courts Oct. 2006 16 History June 2005 10 Haskel, Michael A. Trial Practice May 2005 22 History Jan. 2007 10 Point of View Feb. 2006 30 Krehel, Greg History Nov./Dec. 2007 10 Trial Practice Jan. 2005 31 Law Practice Mar./Apr. 2005 40 Law Practice Mar./Apr. 2005 43 Hayden, Douglas Kukol, Albert B. Law Practice Mar./Apr. 2006 49 Banking / Finance Law Sept. 2005 23 Trusts and Estates Feb. 2006 18 Law Practice Feb. 2007 30 Hayes, J. Michael Kuney, George W. Law Practice May 2007 40 Torts and Negligence Nov./Dec. 2006 32 Commercial Law Sept. 2007 22 Marcuccio, Elizabeth A. Torts and Negligence Sept. 2007 28 Kwieciak, Stanley, III Trusts and Estates Feb. 2006 18 Hecker, Joel L. Family Law Feb. 2005 42 Mariani, Michael M. Intellectual Property Law May 2007 44 La Ferlita, Joseph T. Trusts and Estates Jan. 2003 38 Herbert, William A. Trusts and Estates Oct. 2006 46 Marks, Patricia D. Labor and Employment Feb. 2004 20 Landau, Harvey G. International Law Mar./Apr. 2003 36 Herrmann, Mark Family Law Mar./Apr. 2006 46 Marlett, Karin Courts Oct. 2003 20 Landsman, Stephan Legal Writing June 2003 10 Higgins, John E. Courts Oct. 2006 21 Marrow, Paul Bennett Labor and Employment Jan. 2004 32 Lang, Robert D. Arbitration Nov./Dec. 2005 14 Holzman, Lara A. Point of View Oct. 2004 48 Arbitration Jul./Aug. 2006 40 Intellectual Property Mar./Apr. 2006 34 Torts and Negligence Jan. 2003 17 Arbitration June 2007 44 Holtzschue, Karl B. Lange, Michele C.S. Arbitration Sept. 2007 50 Real Property Law Mar./Apr. 2003 31 Computers and the Law Mar./Apr. 2004 18 Commercial Law Sept. 2003 16 Horowitz, David Paul Lebovits, Gerald Family Law Mar./Apr. 2004 26 Evidence Jan.–Oct. 2005; Jan. 2006– Courts Jul./Aug. 2004 34 Martin, Mia R. Nov./Dec. 2007 Law Practice Mar./Apr. 2005 30 Computers and the Law Nov./ Point of View June 2006 42 Legal Writing Jul./Aug. 2001 8; Dec. 2004 23 Trial Practice Sept. 2003 10 Sept. 2001–Nov./Dec. 2007 McCloskey, Susan Hsia, Sarah C. Leis, H. Patrick, III Legal Writing Nov./Dec. 2003 18 Intellectual Property Mar./Apr. 2006 34 Courts June 2006 10 Legal Writing Sept. 2004 30 Hutter, Michael Leoussis, Fay McGowan, Michael Point of View June 2006 42 Torts and Negligence May 2006 36 Computers and the Law Feb. 2007 42 Kahn, Marcy L. Levine, Arnold J. McGrath, Christopher T. Courts Nov./Dec. 2006 10 Law Practice Jul./Aug. 2003 42 Courts Mar./Apr. 2004 10 Kamins, Barry Lewis, David Courts May 2004 28 Criminal Law Jan. 2006 20 Courts Oct. 2004 42 McGuinness, J. Michael Criminal Law Jan. 2007 39 Liebman, Bennett Criminal Law Oct. 2003 29 Kassal, Hon. Bentley History May 2007 10 Meagher, Walter L., Jr. Appeals Jan. 2004 46 Liotti, Thomas F. Trial Practice Mar./Apr. 2003 28 Appeals Nov./Dec. 2004 28 Books on Law Mar./Apr. 2003 46 Michaels, Philip J. Appeals Nov./Dec. 2005 32 Criminal Law Jan. 2003 29 Trusts and Estates Nov./Dec. 2003 10 Appeals Oct. 2006 42 Loftus, Kevin Trusts and Estates Feb. 2005 38 Appeals Nov./Dec. 2007 44 Torts and Negligence Mar./Apr. 2006 22 Trusts and Estates Jul./Aug. 2006 37 Kassenoff, Jarred I. Long, Richard B. Miller, Henry G. Commercial Law Jul./Aug. 2003 32 Government and the Law June 2007 40 Attorney Professionalism Oct. 2003 42 Kassoff, Mitchell J. Loveless, John J. Books on Law June 2005 51 Commercial Law Jan. 2003 32 Real Property Law Mar./Apr. 2006 10 Trial Practice Mar./Apr. 2005 24 Commercial Law June 2004 22 Lurie, Alvin D. Miranda, David P. Kastner, Menachem J. Point of View Mar./Apr. 2003 48 Computers and the Law Jul./Aug. 2005 42 Commercial Law Jul./Aug. 2003 32 Lustig, Mitchell S. Computers and the Law Oct. 2005 34 Torts and Negligence June 2004 18 Computers and the Law Feb. 2006 28
62 | November/December 2007 | NYSBA Journal Computers and the Law Sept. 2006 44 Salomon, Chester B. Trusts and Estates Jul./Aug. 2006 37 Computers and the Law Jul./Aug. 2007 46 Bankruptcy Nov./Dec. 2007 41 Wagner, Lorraine Moore, James C. Samansky, Art Books on Law Jul./Aug. 2003 47 International Law May 2007 35 Law Practice Nov./Dec. 2006 36 Weber, Richard L. Muldon, Gary Samansky, Eric Civil Practice Jul./Aug. 2007 10 Family Law Jul./Aug. 2004 30 Law Practice Nov./Dec. 2006 36 Wechsler, Michael M. Munneke, Gary A. Schatz, Jill Lakin Computers and the Law Mar./Apr. 2004 18 Law Practice Oct. 2007 46 Torts and Negligence May 2005 33 Weinberg, Philip Nathan, Frederic S. Trial Practice Oct. 2007 40 History June 2004 10 Point of View Jul./Aug. 2003 48 Scheindlin, Shira A. Weiner, Gregg L. Nelson, Sharon D. Civil Procedure Jan. 2004 18 Point of View Oct. 2003 46 Evidence June 2007 10 Schlesinger, Sanford J. Weinstein, Alan G. Nesbitt, Hon. John B. Trusts and Estates May 2005 30 Trusts and Estates Oct. 2007 30 Trial Practice Sept. 2003 39 Schnapf, Larry Weinstein, Hon. Jack B. Neumark, Avery E. Environmental Law Oct. 2004 10 Point of View Feb. 2003 55 Labor and Employment Feb. 2003 38 Schwab, Harold L. Weis, Philip C. Nohavicka, Joseph D. Trial Practice Nov./Dec. 2004 10 Computers and the Law Feb. 2003 8 Torts and Negligence Jan. 2006 26 Trial Practice Jan. 2005 25 Wesley, Richard C. Pajak, Gregory V. Seaquist, Gwen Books on Law Jul./Aug. 2006 50 Torts and Negligence Mar./Apr. 2006 22 Real Property Law June 2006 30 Whistler, Kimberly E. Penzer, Eric W. Selkirk, Alexander M., Jr. Torts and Negligence Sept. 2006 18 Legal Writing Feb. 2003 26 Government and the Law June 2007 24 Whitaker, G. Warren Real Property Law Sept. 2004 35 Seymour, Whitney North, Jr. Trusts and Estates Jul./Aug. 2005 44 Pixley, William G. Point of View Jan. 2003 50 Wilcox, Elliott Torts and Negligence Oct. 2005 30 Shoot, Brian J. Law Practice Sept. 2006; Nov./Dec. 2006; Pollet, Susan L. Courts Mar./Apr. 2004 10 Jan.–Mar./Apr. 2007; June 2007; Sept. 2007 Family Law Feb. 2004 33 Courts May 2004 28 Wilkes, David C. Family Law Jul./Aug. 2004 26 Short, Skip Real Property Law Oct. 2005 10 Family Law Sept. 2005 42 Torts and Negligence Jan. 2004 40 Wilkins, Steven Popova, Elena Siegel, David D. Torts and Negligence Jul./Aug. 2004 42 International Law Sept. 2007 32 Civil Procedure Nov./Dec. 2005 10 Torts and Negligence Nov./Dec. 2004 31 Powers, John G. Civil Procedure June 2006 46 Wise, David R. Commercial Law Feb. 2006 22 Sienko, Leonard E., Jr. Labor and Employment Oct. 2005 22 Puscheck, Bret Law Practice Sept. 2004 40 Wishart, Lynn International Law Mar./Apr. 2003 36 Silbermann, Jacqueline W. Computers and the Law Sept. 2003 24 Rachlin, Marvin Courts Feb. 2004 30 Wolf, Alan Point of View June 2003 52 Silver, Mark S. Computers and the Law Sept. 2003 24 Point of View Sept. 2003 52 Criminal Law Mar./Apr. 2004 32 Wood, Robert W. Point of View Sept. 2004 52 Simek, John W. Tax Law Feb. 2004 52 Radigan, Hon. C. Raymond Evidence June 2007 10 Tax Law Jul./Aug. 2006 44 Courts June 2003 19 Slater-Jansen, Susan B. Tax Law Feb. 2007 10 Ramos, William Labor and Employment Feb. 2003 38 Tax Law Nov./Dec. 2007 28 Civil Procedure Sept. 2006 36 Smith, Thomas G. Yamamoto, Yoko Randall, Scott History Jul./Aug. 2006 10 Commercial Law Oct. 2007 33 Science and Technology Feb. 2005 36 Spivey, Gary D. Yankelunas, Edward P. Redgrave, Jonathan M. Courts Jan. 2006 32 Real Property Law Sept. 2005 36 Civil Procedure Jan. 2004 18 Stadtmauer, Steven A. Yastion, James D. Reinstein, Ronald Civil Practice Feb. 2007 22 Trusts and Estates Nov./Dec. 2004 20 International Law Mar./Apr. 2003 36 Steckman, Laurence A. Young, Sanford J. Rice, Marian C. Commercial Law Oct. 2007 33 Law Practice Jul./Aug. 2007 28 Stern, Gerald Civil Procedure Jan. 2004 10 Ritts, Geoffrey J. Government and the Law Jan. 2005 10 Civil Procedure June 2004 28 Courts Oct. 2003 20 Stern, Robert A. Civil Procedure May 2006 10 Rogak, Joyce Lipton Torts and Negligence Oct. 2003 35 Torts and Negligence June 2003 28 Sullivan, Mariann MEMBERSHIP TOTALS Rose, Joel A. Animal Law Jul./Aug. 2007 17 Law Practice Mar./Apr. 2006 42 Sullivan, Mark D. Rosenberg, Lee Environmental Law Jan. 2006 10 Point of View Sept. 2004 50 Sussman, Edna NEW REGULAR MEMBERS Rosenhouse, Michael A. Point of View May 2006 43 1/1/05 - 9/28/07 ______7,275 Civil Procedure Feb. 2003 30 Teff, Justin S. Rothberg, Richard S. Government and the Law NEW LAW STUDENT MEMBERS Trusts and Estates Feb. 2006 44 Mar./Apr. 2007 36 Rothman, Dennis M. Trial Practice Jul./Aug. 2003 27 1/1/05 - 9/28/07 ______580 Commercial Law Oct. 2007 33 Trial Practice Mar./Apr. 2004 42 Rubenstein, Joshua S. Trial Practice June 2004 38 TOTAL REGULAR MEMBERS Trusts and Estates Jan. 2004 26 Thomsen, Kimberly S. AS OF 9/28/07 ______68,172 Trusts and Estates Sept. 2005 28 Family Law Mar./Apr. 2004 26 Trusts and Estates Jul./Aug. 2007 32 Timken, Nelson E. TOTAL LAW STUDENT MEMBERS Rubinstein, Mitchell H. Torts and Negligence Feb. 2006 40 AS OF 9/28/07 ______2,091 Labor and Employment Law Jan. 2007 23 Turro, Andrew J. Sabino, Anthony M. Courts June 2003 44 TOTAL MEMBERSHIP AS OF Commercial Law Nov./Dec. 2005 20 Twomey, Laura M. Salkin, Barry L. Trusts and Estates Nov./Dec. 2003 10 9/28/07 ______70,263 Labor and Employment Jul./Aug. 2005 34 Trusts and Estates Feb. 2005 38
NYSBA Journal | November/December 2007 | 63 ATTORNEY PROFESSIONALISM FORUM
To the Forum: ter highlights – social goals that can be the Bureau of Labor Statistics, of I am the managing partner of a tangential to their representation. the total number of employed law- fairly large firm in New York City. As if If it is any consolation, your firm is yers in the United States, only 5% meeting associates’ sharply rising sala- certainly not alone in facing demands were black, 2.9% Asian, and 3% ry expectations is not enough, we have for diversity-related information. Some Hispanic. See http://64.233.167.104/ a challenging new issue facing us. corporate clients have been frustrated search?q=cache:_0JxL7T75-sJ:www. Increasingly, we are being pres- by the slow progress made by minori- bls.gov/cps/cpsaat11.pdf+bls.gov,+e sured by important and longstand- ties and women in the legal profes- mployed+lawyers&hl=en&ct=clnk& ing clients to meet certain “diversity sion and these corporations that value cd=1&gl=us. Many factors underlie targets” as a condition for continuing diversity have come to expect a simi- these disproportionately small per- to represent them. Clients are demand- lar commitment from outside coun- centages, including the fact that the ing that the racial, gender and ethnic sel. Various high-profile companies, pipeline leading to minorities practic- composition of our firms’ associates including General Motors, DuPont, ing law is severely damaged. Overall, and partners more closely mirror the American Airlines, Ford, Exxon Mobil, minorities have lower high school and profession’s diversity. Others require and Shell, collect diversity-related data college graduation rates, higher law that our engagement teams on their from the law firms to which they give school attrition rates, and lower bar matters reflect diversity in a meaning- business. Tamara Loomis, Corporate passage rates. See Gary Orfield et al., ful way, with minority and women Counsel Push Law Firms to Diversify: Data Civil Rights Project at Harvard Univ. lawyers having important roles to play Collected on Billable Hours for Minorities et al., Losing Our Future: How Minority at all levels. We are required to fill out & Women, N.Y.L.J., Oct. 25, 2000, at 8 Youth Are Being Left Behind by the detailed questionnaires and disclose (col. 1). Many prestigious New York Graduation Rate Crisis, at 2 (2004), avail- information that, frankly, is of a pro- firms have pledged to comply with able at http://www.civilrightsproject. prietary nature: where we recruit, how client demands for such information. ucla.edu/research/dropouts/drop- many white and minority candidates See Thomas Adcock, Firms Agree to outs04.php#reports; Laura G. Knapp we interview and hire, etc. Give Clients Diversity Data on Lawyers, et al., Nat’l Ctr. for Educ. Statistics, At the same time, we are facing cli- N.Y.L.J., May 13, 2005, at 1 (col. 3) (dis- Enrollment in Postsecondary Institutions, ent pressures from another direction. cussing agreement brokered by New Fall 2004; Graduation Rates, 1998 & At least one government official has York County Lawyers’ Association, in suggested that clients exert their eco- which more than 60 law firms agreed nomic influence by pulling back their to report to their corporate clients the The Attorney Professionalism Committee work from law firms doing pro bono composition of assigned legal teams invites our readers to send in comments work for the Guantanamo detainees. by race, gender, ethnicity and sexual or alternate views to the responses These actual and suggested preference). printed below, as well as additional demands by our clients – to whom we The commendable desire by cor- hypothetical fact patterns or scenarios to owe a duty of loyalty and whose busi- porate counsel to have diverse legal be considered for future columns. Send ness we both want and need – about teams representing their companies your comments or questions to: NYSBA, who we are and what we do apart can, however, pose practical, ethical, One Elk Street, Albany, NY 12207, Attn: from our representation of them, raise and legal problems for law firms. Attorney Professionalism Forum, or by troubling issues that challenge our As a practical matter, law firms e-mail to [email protected]. independence as professionals. What face real constraints in recruiting and This column is made possible through advice do you have for us? keeping diverse talent. According to the efforts of the NYSBA’s Committee on Sincerely, the 2000 U.S. Census, racial and ethnic Attorney Professionalism. Fact patterns, A Besieged Firm Leader minorities comprised approximately names, characters and locations presented 30% of the U.S. population. See http:// in this column are fictitious, and any resem- Dear Besieged Firm Leader: www.cdc.gov/omhd/Populations/ blance to actual events or to actual persons, Undoubtedly, as you state, the legal populations.htm. Minorities comprised living or dead, is entirely coincidental. These profession faces various pressures. At only 9.7% of attorneys, however. See columns are intended to stimulate thought bottom, of course, attorneys are service Elizabeth Chambliss, ABA Commission and discussion on the subject of attorney providers. Intense competition exists on Racial and Ethnic Diversity in the professionalism. The views expressed are among law firms and, over time, cor- Legal Profession, Miles to Go: Progress those of the authors, and not those of the porate buyers of legal services have of Minorities in the Legal Profession, at 5 Attorney Professionalism Committee or become more aggressive about tying (2004), available at https://www.abanet. the NYSBA. They are not official opinions their purchasing power to the fulfill- org/abastore/index.cfm?fm=Product. on ethical or professional matters, nor ment of demands concerning fees, AddToCart&pid=4520014 (Executive should they be cited as such. staffing on matters, and – as your let- Summary). In 2006, according to
64 | November/December 2007 | NYSBA Journal 2001 Cohorts; and Financial Statistics, Profession, Charting Our Progress – The achieve desirable diversity numbers. Fiscal Year 2004, at 11 (2006), avail- Status of Women in the Profession Today, Of course, law firms must resist such able at http://nces.ed.gov/pubsearch/ at 4 (2006), available at http://www. temptations; a firm’s compliance with pubsinfo.asp?pubid=2006155; Gita Z. abanet.org/marketresearch/resource. its ethical obligations must take prece- Wilder, Law Sch. Admission Council, html. However, women as a class lag dence over its laudable diversity goals, The Road to Law School and Beyond: considerably in attaining the upper notwithstanding clients’ demands. In Examining Challenges to Racial and Ethnic echelons of the legal profession. Id. at any event, lowering standards would Diversity in the Legal Profession, at 23, 25 5; see generally ABA Commission on be patronizing and serve no one’s (2003), available at http://www.lsac- Women in the Profession, A Current long-term interests. However, this is net.org/lsac/research-reports/TOC- Glance at Women in the Law (2006), avail- not to say that hiring and promotion research-reports2.htm. Thus, the pool able at http://www.abanet.org/mar- standards should not be re-examined of minority applicants available to law ketresearch/resource.html. Minority to ensure that they accurately measure firms is smaller than it should be. women, in particular, fare poorly in the capacity to practice law at a compe- Moreover, whether out of choice ascending to the highest levels of the tent and effective level. or because of a lack of success in profession. See Charting Our Progress, In addition to ethical obligations competing for law firm jobs, minor- at 6–7. concerning competence, law firms pur- ities begin their careers in govern- Information on lawyers with dis- suing diversity initiatives should also ment or public interest jobs at a higher abilities and on lesbian, gay, bisexual be aware that both the Disciplinary rate than their white counterparts. and transgender (LGBT) lawyers is Rules, DR 1-102(6), and anti-discrimi- See Chambliss, Miles to Go, at 15-16. sparser. EEOC, Diversity in Law Firms, nation statutes such as Title VII of the In terms of competing for law firm at Table 9 (2003), available at http:// Civil Rights Act and the New York State employment, minorities are generally www.eeoc.gov/stats/reports/diversit- Human Rights Law proscribe employ- less likely than whites to have held law/index.html (disabled). It appears ment discrimination on the basis of an judicial clerkships after law school. See that the small number of attorneys applicant’s race, sex, or other protected id. at 14; NALP, Courting Clerkships: The identifying themselves as disabled, id., characteristics. Nevertheless, having a NALP Judicial Clerkship Study (2000), is stagnant or even decreasing. Law diversity program in place – even one available at http://www.nalp.org/con- Firm Diversity Benchmarking Report: stating broad recruitment or hiring tent/index.php?pid=135. 2006 Report to Signatories of Diversity goals – does not support an inference Minority lawyers – especially female Principles, at 6. On the other hand, the of discrimination. See Silver v. City minorities – working at law firms number of openly gay and lesbian University of New York, 947 F.2d 1021, also have high rates of attrition. See attorneys practicing at New York City 1022 (2d Cir. 1991) (per curiam); Blanke Chambliss, Miles to Go, at 32. Therefore, law firms appears to be increasing. v. Rochester Telephone Corp., 36 F. Supp. law firms not only have trouble iden- Law Firm Diversity Benchmarking Report, 2d 589, 597–98 (W.D.N.Y. 1999). Thus, tifying and selecting minority law- at 6. law firms can comply with clients’ yers, but they also battle the problem In light of the catalogue of chal- diversity-related demands without of retaining minority lawyers whom lenges described above, law firms that violating these mandates, but caution they have trained. Id.; N.Y.C. Bar, Law are striving to satisfy corporations’ is required. Firm Diversity Benchmarking Report: pressure to develop more diverse firms For example, the mere collec- 2006 Report to Signatories of Diversity must take care that their efforts to tion and reporting of the racial and Principles, at 15 (2006), available at diversify do not run afoul of state other demographic characteristic data www.abanet.org/minorities/docs/ ethics/disciplinary rules and anti-dis- relating to the composition of teams FirmBenchmarking06.pdf. Mentoring crimination statutes that bar unlawful assigned to clients does not run afoul programs, targeted recruitment efforts, discrimination in hiring or promoting of any antidiscrimination laws. See and a greater awareness of the issues on the basis of, inter alia, race or sex. Gustaitis v. Chao, C.A. No. 05-1210, are all positive developments that may Financial inducements to rapidly 2007 WL 2071901, at *11 (E.D. Pa. July help to ameliorate some of these obsta- diversify can implicate a law firm’s eth- 16, 2007); Reed v. Agilent Technologies, cles. Nonetheless, the problems with ical obligation to ensure that its attor- Inc., 174 F. Supp. 2d 176, 185 (D. Del. the legal pipeline will not disappear neys have the experience and training 2001); Shuford v. Alabama State Board quickly. to competently represent client inter- of Education, 897 F. Supp. 1535, 1552 Women as a whole are less of a ests. See DR 1-101, 6-101; EC 2-30, 6-1. (M.D. Ala. 1995). Much of the informa- challenge because their representation Because of the limited pool from which tion that law firms are being asked to in the profession, particularly in the law firms can recruit diverse talent and provide to their corporate clients (and law schools, is more reflective of their the difficulties in retaining such talent, more) is also sought by the E.E.O.C. on percentages in the overall population. it has been said that law firms may be its EEO-1 forms. Law firms, however, See ABA Commission on Women in the tempted to relax standards in order to should tread carefully with regard
NYSBA Journal | November/December 2007 | 65 to the gathering of data concerning While lawyers certainly owe their pro bono service. See Palmer, Remarks disabled individuals. In contrast to clients a duty of loyalty, the duty of on Detainees. the absence of prohibitions concern- loyalty does not require a law firm to Thus, while firm leaders such as ing the gathering of data concerning turn over proprietary information to yourself no doubt may feel belea- race and gender, the Americans with its clients that is unrelated to the firm’s guered, that is probably inherent to the Disabilities Act limits inquiries into discharge of its professional duties nature of a service profession catering an employee’s medical condition and (e.g., the recruitment, interview, and to clients. As the Guantanamo example the disclosure of such information. 42 hiring information you mention). EC illustrates, knowledgeable clients rec- U.S.C. § 12112(d)(3), (4). 7-17. Your law firm has a choice as ognize and value attorneys’ profes- While increasing your firm’s aware- to whether to share such proprietary sional independence. We believe they ness of diversity issues and providing information (although it may be one also will recognize your good faith data concerning the same does not that is heavily influenced by a fear of efforts to enhance the diversity of the violate any governing laws (subject the consequence of potentially losing profession by engaging in focused but to the caveat concerning disability a valued client). At least with regard lawful recruitment, retention, and pro- information), to the extent a firm uses to certain information that is shared, motion efforts, and through support that information to make decisions such as the schools at which your firm for long-range efforts to increase the concerning hiring, placement, or pro- targets its recruitment efforts, clients flow of underrepresented demograph- motion, it has entered a danger zone. may be willing to agree to maintain the ic groups through the educational sys- When a private employer’s diversity confidentiality of the information. tem into our profession. efforts veer into the affirmative action Finally, as to your concern about a The Forum, by arena, it should be prepared to point suggestion from a government official Kenneth G. Standard, Esq. to a substantial and documented racial that clients withdraw their business Esptein Becker & Green, P.C. and demographic imbalance in a tradi- from law firms doing pro bono work Carrie Corcoran, Esq. tionally segregated employment clas- for the Guantanamo detainees, that Esptein Becker & Green, P.C. sification that it seeks to remedy. See seems to have been wishful thinking We received the following response to this Johnson v. Transportation Agency, 480 on the official’s part. You presumably question from a reader in Jamesville: U.S. 616, 630 (1987); Taxman v. Board are referring to early 2007, when a Re: A Besieged Firm Leader, of Education of Township of Piscataway, then-Pentagon official made a predic- Attorney Professionalism Forum, New 91 F.3d 1547, 1557–58 (3d Cir. 1996) tion that has not come to pass. This York State Bar Association Journal, (barring non-remedial affirmative official publicly listed the names of September 2007 action plans under Title VII); Frost law firms representing detainees and Undoubtedly filling out question- v. Chrysler Motor Corp., 826 F. Supp. predicted that “when corporate CEOs naires is time-consuming and tire- 1290, 1296 (W.D. Okla. 1993) (program see that those firms are representing some. And, we all prefer to conduct held invalid in part because Chrysler the very terrorists who hit their bottom our professional lives with indepen- failed to show such an imbalance). The line back in 2001 . . . [they] are going to dence. (No one enjoys being told what “imbalance” is not measured against make those law firms choose between to do, whom to hire, or what standards the general population, but against representing terrorists or representing to use.) the “relevant qualified labor pool.” reputable firms.” See Anna Palmer, Our duty to our clients goes beyond See John F. Buckley IV & Michael R. Remarks on Detainees Cement Bond solving their specific legal problems. Lindsay, Reverse Discrimination Because Between Firms and Corporate Clients, We.must also counsel them with regard of Affirmative Action Obligations, 1 Legal Times, Jan. 24, 2007, available to best conducting their work – be it in Defense of Equal Employment Claims, at http://www.law.com/jsp/ihc/ the corporate, academic, or govern- at § 3:86 (2006). Private employer PubArticleIHC.jsp?id=1169546555702 ment milieu. affirmative action plans also must not (quoting Charles “Cully” Stimson). The world our clients operate in “unnecessarily trammel[] the rights of These statements were “universally is diverse, and will be increasingly [non-minority] employees or create[] rejected” and the Pentagon official multi-cultural in the coming decades. an absolute bar to their advancement.” has since apologized and resigned. Firm partners and associates – male Johnson, 480 U.S. at 637-38. Therefore, Id.; Official Resigns Over Gitmo Lawyer and female, and of all races and ethnic be sure to focus your firm’s efforts on Remarks, CBS News, Feb. 7, 2007, avail- backgrounds – perceive and analyze attracting candidates and staunching able at http://www.cbsnews.com/ jurisprudential matters through the attrition and steer clear of making race- stories/2007/02/02/terror/main framework of their own varied life or gender-based decisions, unless the 2428473.shtml. In fact, rather than pun- experiences. firm is acting pursuant to a defensible ish their outside counsel, companies Your clients may be doing you a affirmative action policy. have recognized the “great tradition[] favor, helping in the education of a 21st in the American legal profession” of
66 | November/December 2007 | NYSBA Journal century attorney. Perhaps you should matching such increase? What effect INDEX TO combine “grateful” with “besieged.” does this have on the lives of lawyers Sincerely, – partners as well as associates – work- ADVERTISERS Karen DeCrow, Esq. ing at those firms? What effect does A-A-A Attorney Referral Attorney-at-Law this have on the clients of such firms Service 73 Alive and Kicking by Jamesville, NY and what, if any, responses are such Hegland & Fleming 53 Another reader weighed in on the Forum’s clients likely to make? What effect Bank of America 13 answer to the attorney who was contem- does this have on the other lawyers in Bertholon-Rowland Corp. 4 plating representing a friend in a personal New York State, who do not work at Cannon, Heyman and injury case, although it was not his area such large law firms? What cumula- Weiss, LLP 73 of practice: tive effect does this have on the overall Center for International Legal Re: Attorney Professionalism legal culture in New York? And, if you Studies 73 Forum, Journal, Sept. 07, pgs. 52-3 view this with concern and worry, and Jewish Guild for the Blind 29 “Buddy’s Friend” believe the overall effects of such an Land America 1031 Exchange 51 Lawbook Exchange, Ltd. 73 As a now retired attorney, I feel increase are negative, what antidotes WKGJL 73 that Mr. Hayes missed the most criti- would you suggest? Law Offices of Ken Lawson 73 cal issue. I was a six year member Send your comments to: NYSBA, Lawsuites.net 73 (one year chairperson) of COPS, the One Elk Street, Albany, NY 12207, Attn: Lexis-Nexis 7, 15 Committee on Professional Standards, Attorney Professionalism Forum, or Mail it Safe cover 3 App. Div., 3d Dept. Buddy’s Friend by e-mail to [email protected]. Please New York Law School 21 “never handled a negligence case” and put “Attorney Professionalism Forum” Stewart Tilghman Fox & 17 is undertaking a “slip and fall” case vs in the subject line. Comments and Bianchi, P.A. a retail store. Though I was predomi- views will be included in the Attorney Stewart Title Insurance Co. 25 nantly a real property lawyer too, I Professionalism Forum published in The Company Corporation 73 (early on) took on some PI cases but the January 2008 issue of the Journal. West, A Thomson Business cover 4 WKGJL 73 learned to avoid practicing in areas Wolters Kluwer Law outside of my competence and experi- & Business 2 ence. These cases are a major breeding ground for complaints to COPS. So my Your CLE advice to “Buddy’s Friend” would be forget about the retainer – etc. – don’t Classroom MOVING? take this case – let your friend seek competent counsel, etc., etc. let us know. Sincerely, Notify OCA and NYSBA of any changes Theodore Drew, Esq. to your address or other record Guilderland, NY information as soon as possible! OCA Attorney Registration QUESTION FOR THE PO BOX 2806 Church Street Station NEXT ATTORNEY New York, New York 10008 PROFESSIONALISM FORUM: TEL 212.428.2800 FAX 212.428.2804 The Attorney Professionalism Email [email protected] Forum and the Committee on Attorney Professionalism is soliciting read- New York State Bar Association ers’ views about the increase in the MIS Department salaries for first-year associates at One Elk Street Albany, NY 12207 large Manhattan law firms, currently Come click for CLE credit at: TEL 518.463.3200 $160,000, and higher. FAX 518.487.5579 What does this increase mean for www.nysbaCLEonline.com Email [email protected] the legal profession in New York? What sense, if any, does such an increase make for the law firms initiating such or to purchase CDs call 800.582.2452 increase? What sense, if any, does such an increase make for the law firms
NYSBA Journal | November/December 2007 | 67 LANGUAGE TIPS BY GERTRUDE BLOCK
uestion: What is the meaning when he said, “All of today’s problems tary grades. A child who cheats “has of the word robust? That word require a robust, effective, strong feder- great ingenuity, but needs direction in Qseems to be popping out in al government.” Gavin Fitzsimmons, a approved methods of succeeding.” A numerous sentences, where it wasn’t Duke University marketing professor, liar “has great imagination but needs previously used. Have you noticed described recent research findings as direction in distinguishing reality from this, or am I imagining it? “the most robust (did he mean “impor- fantasy.” And a bully “shows great Answer: You are not imagining it. tant”?) result in my career.” leadership but needs direction in learn- What you’ve noticed is the tendency Thus the adjective robust, which ing consideration for others.” of the media to become fascinated was first only used to describe people (Does anyone recognize a politician with a word or phrase that a promi- who were healthy, sturdy, buxom, and you know in those definitions?) nent individual may have used in an strong, currently can also describe con- unusual way. The media popularize cepts and conduct as “brave, broad, From the Mailbag: the word and expand its meaning, it is courageous, powerful, and effective.” My thanks to Baltimore attorney adopted by the American public, and These synonyms, however, may disap- Anthony F. Vittoria, who noticed the it becomes a fad word. But often its pear when robust is no longer needed coinage to spectate and “kind of liked popularity then subsides (as may now as a euphemism. it.” As he pointed out, it resembles the be occurring with robust), and only the Government is good at euphemism, backformations that were discussed original sense may survive. applying it widely and expertly. For in the July/August “Language Tips.” The word robust is derived from example, a federal interagency com- Kobe Bryant coined a backformation in robustus, a Latin adjective meaning mittee is said to be considering doing a recent interview when he comment- “strong,”which came from the Latin away with the word poverty. One offi- ed in answer to a question, “It depends noun robur “strength” taken from cial explained, “All we are trying to do on how you interpretate it.” robur, the name for “oak tree.” The is to improve the meaning of the term. English adjective robust is therefore tra- Poverty is a value-laden word and Potpourri: ditionally defined as “strong, healthy, that’s not the kind of word we like. We Have you noticed the difference in the able-bodied, athletic, hale and hearty.” would like a less value-laden concept meaning of certain word-pairs? Presume, Antonyms are “frail, ailing, delicate, like ‘income distribution’ or ‘mean’ or the verb, means something quite differ- feeble, sick, and weak.” (Roget’s “New ‘median’ or some other word devoid of ent from presumptuous, the adjective. Millennium” Thesaurus, 2007). emotional complications.” The verb means “to assume as true in But when Vice President Cheney Our own City Commission wants to the absence of proof to the contrary.” used robust in September 2001, it was discard “The Public Relations Depart- But the adjective has unfavorable con- with a different meaning. Immediately ment.” “The word PR to me means notations: “assuming unwarranted after 9/11, Mr. Cheney called for “robust we’re having to cover up something, liberties.” The unslanted verb precipi- interrogation” (that is, “torture”) to we’re having to hide something, we’re tate means “to cause to happen before extract intelligence from captured sus- trying to sell a bill of goods,” one Com- anticipated.” But the adjective precipi- pects, thus “freeing President Bush to missioner said. (Thus far, however, no tous is pejorative. It means “abrupt and fight the war on terror.” He used the one has found a satisfactory substitute.) ill-considered.” The verb contemplate adjective robust as a euphemism, substi- The practice of changing the name means “to ponder,” But the adjective tuting a pleasant word for a harsh one, of something to improve its percep- contemplative describes the personality a common practice among politicians. tion is so common that the National of the individual doing the pondering. Later, speaking about UN involve- Council of Teachers of English annu- Then there is assign and assignation. The ment in the war, President Bush com- ally gives an award for “twisting the verb assign means “to designate”; the mented, “I’d like to see more robust UN English language.” Among its awards: noun assignation can mean “an appoint- action.” (He seemed to mean “puni- To the Pentagon, an award for refer- ment for a meeting of lovers, a tryst.” tive.”) In 2004, Secretary of State Colin ring to the neutron bomb as a “radia- Better not confuse those two. ■ Powell commented that our soldiers tion enhancement weapon.” To the and marines were providing “robust Central Intelligence Agency, a run- GERTRUDE BLOCK is lecturer emerita at the (“ample”) support” to the Iraqis. ner-up award for the name it report- University of Florida College of Law. She is the Currently, robust still appears fre- edly gave its experiments in human author of Effective Legal Writing (Foundation quently in radio, television, and behavior control: “The Society for the Press) and co-author of Judicial Opinion Writing newspapers. In a July 2007 Public Investigation of Human Ecology.” (American Bar Association). Her most recent Broadcasting program, commenta- Euphemism also pervades reports book is Legal Writing Advice: Questions and tor Mark Shields could have omitted from teachers to parents about the Answers (W. S. Hein & Co., 2004). robust from his string of adjectives progress of their children in elemen-
68 | November/December 2007 | NYSBA Journal NEW MEMBERS WELCOMED
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NYSBA Journal | November/December 2007 | 69 Maria Beatriz Martinez Daphna Renan Daniel Edmund Stokes Jason Robert Vollbracht James Darrow Jeremy Andrew Masys Erica Jean Richards Amy Lynn Stutius Jean Marie Vrola Geoffrey Patrick Moran Brian Joshua Matthews Lara M. Rios Mekhala Subramanian Howard Allan Wachtel Davenport Erik Daniel Mayans Sam Roberts Ryan William Suda Justin Wagner Carl Edward Ekberg Charles Jacob Glen Mazer Justin Henry Roeber Maureen Suzanne Sullivan Marc Alfred Wallenstein Kim Marie Flotteron Ryan Austin McCaffrey Jason David Rogers Shannon Elisabeth Kaitlin Rose Walsh Yoko Goto Julie Ann McCane Craig Lawrence Rokuson Sullivan Matthew Joseph Walsh Kristi Marc Gugliano- Carolyn Kim McCarthy Matthew Roose Lauren Emily Sypek Alexander David Walter Breloff Keith Brian McDonnell Marc Brian Rosen Bartlomiej Michael Julius Joanna Wasick Priscilya Marie Hawkes Joanna Aitken McGinley Joshua Daniel Roth Szewczyk David Da-Fan Wei Sheridan Natasha Jack- Michael Edward McGuire Ralph Marios Rush Sophia Danielle Tawil Jordan David Weiss Browne Christopher Paul McHugh Jessica Butler Russell Michael F. Taxin Neil Weiss Joshua Eric Johnson Jorge Alberto Medina Michael David Saily Amy Sylvia Taylor Stefanie Weiss Sean L. 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70 | November/December 2007 | NYSBA Journal FOURTH DISTRICT Jonathan E. Edwards Leslie-Ann Chanliongco James Arthur Casey Adam Michael Fontana Aaron Edwards Joshua P. Feiler Andaya Selena Marie Casinelli Michael John Forunato Kathleen McGeehan Maritza Darlen Hernandez April J. Anderson Matthew Angelo Catania Michael William Charles Hofmann Jason Hodrinsky Theodore Carl Anderson Liza Arlene Chanco Fourte Krystal K. Hubbell Latoya Roberta-angela Benjamin Joseph Angelette Vineet Chander Yahya Ahmad Fouz Lia Barbara Mitchell James Marc Anthony Antonucci Chia-wei Chang Gabriel Bram Freiman David Caleb Previte Eugene Klochkoff Nana Akua Antwi Eugenia Hsu Chang Ana Lucas Frischtak Sarah C. Schellinger Erin Bernadette Kowtna Augusto Pio Aragone Catheryne Yun Ju Chen Kelly Brook Gaertner Andrew Marc Lamkin Daniel Hailemichael Emma Cordelia Cheuse Sandra Sylvie Gagna FIFTH DISTRICT Aimeemarie Loinig Assega Stacy Chiang Anthony Louis Gallia Adam J. Fumarola Tiara Faith McCray Kiesha T. Astwood Sang Jee Choi Len Matthew Garza Jordan N. Gray Christopher Frederick Jeremy Christopher Austin He-young Jane Chon Amanda Rachel Gaynor Suzanne Kathleen Lehman Miehl Fidelis Ekata Azeke Myung Soon Chung Daniel M. Genet SIXTH DISTRICT James Scott Polk Richard William Badillo Zarja Cibej Geoffrey David Gentilucci Kelly Ilene McGovern Gregory John Popadiuk Moo Yeol Baek Zack Allen Clement Ekaterina Nikolaeva Adam Ford Tucker Amanda Roberts Reilly Steven Baldassano Kyle Wagner Compton Georgieva Anne Samuelson William Keith H. Richman Kristin Lynette Baldwin Thomas Gerard Connolly Erica Maria Gerlando SEVENTH DISTRICT Lanielle Desiree Roach Joseph Aaron Ball Vinodh Sabesan Siska Ghesquiere Christo J. Balouris Kathryn M. Rose Kathryn Laurel Ballintine Coomaraswamy Elaine Cooper Gibson Vincent Anthony Frassetto Michael Rott Timothy Arnold Barnes Douglas William Coon Daniel Tran Gien Steven A. 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Digiulio Eriko Hayashi John Thomas Murray Rachel A. Kish Sheera Borenstein Kevin Scott Dilallo John Dennis Hendricks Omid H. Nasab Dana Renee Levin Erika Leigh Borkowski Lindsay Faye Ditlow Jennifer Leilani Higa Craig Katelin Brooks O’Rourke Colleen Marie Richman Vanessa Bovo Mara Dianne Domanski Heather Anne Hill Georgios Konstantinou Laura Megan Trachtman Jill C. Bowden Nuala Mary Doyle Cindy Ann Holahan Panagiotopoulos OUT OF STATE Adam James Boyle Eamon Duffy Robert Henry Holt Marjorie Mary Santelli Erwin Kyle Inigo Abalos Andrew David Bradt Kathleen Kelly Duffy Dai Won Hong Lauren Claire Santucci Kinji Adachi Brett Allen Broge Adam Lee Dunlop Benjamin Dodge Horne Michael Anthony Savino Adedotun Oluwatosin Jason Everett Brooks Thomas Michael Dyer Barbara Hou Jana M. 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NYSBA Journal | November/December 2007 | 71 Raymond R. Janairo Annie Elizabaeth Leeks Arata Nakajima Markus Roehrig David Paul Thiruselvam Kevin Lee Jayne Yu Lei John Boatner Nance Michelle Lee Romano Nathan Adam Tilden Paul Pouria Jebely Amara Danielle Lennon Badri Lakshmi Kumaran Stephen Ralph Romine Brian Russell Tipton Mark Anthony Jefferis Erica J. Lerner Narayanan Zvi Shmuel Pinchas Rosen Geremy Jeron Toliver Margaret Ann Jennings David Jordan Levine Matthew Robert Nash Jay David Rosenbaum Yingqiong Tong Christian John Jensen Agnes C. Li William Lafayette Nash Justin Adam Rosenberg Stephen Gillis Townley Tara Jensen Ebone Alexis Liggins Deana Abdalla Nassar Paul Andrew Rosenthal Mayra Trinchet Curtis Evan Jewell Jonathan Gien-wei Lin Evan Scott Neadel Michael W. Ross Zachary D. Tripp Kendra Formosa Jhu Holly Carol Lincoln Jonathan Stephen Needle Michael Angelo Rueda Rodney Dana Troyan Tomislav Joksimovic Joy Lindley Timothy James Nestler Marilyn Mkiwa Jennifer Chin-ju Tsai Melanie Joustra James Allan Liotta Aurelien Takendo Ngonga Rweyemamu Yu-te Tsai Sun Jin Jung Robert Samuel Lipschitz Donald Harold Nichols Sabina Dalila Sacco Mark Gregory Turner Charles Roy Jurd Zhe Liu Justin Grant Niswander Aquino Tyler Evan Ulrich Tania J. Kachikwu-Oweh Hsiu-pei Lo Munachim Olisa Nsofor David Ian Satine Stacie Lynn Vacca Alexandra Deborah Kalb Joshua Loh Elizabeth Cole Thomas Manuel Schmid Julia Vaughters Jennifer Anne Kalcevic Jennifer Lynn Longley Nuttycombe Ronald Schreiber Larina Venter Edward Francis Liz Maria Lopez London Scott O’Dowd Melissa Ann Schubert Joseph A. Villani Kammerer T.H. Lyda Sarah O. O’Neal Charles Walter Schwartz Richard Francis Vitarelli Aida Kane Jennifer Anne Lythgoe Patrycja Ochman Kimberly Jane Seluga Jonathan P. Vuotto Owen Paul Kane Gerald Leonard Maatman Suejung Alexa Oh Jason Immanuel Ser Anthony King Wang Han Sung Kang Patrick James Mackey Saori Okada Marco Gabriel Serrano Hin-cheng Wang Peter Donghoon Kang Theodore Ewen Macveagh Hideyuki Okamoto Caroline Sara Shackleford Yizhi Wang Omario S. Kanji Allison Anne Maimona Kotaro Okamoto Jennifer Gayle Shapiro Arthur Dee Warady Allan Kanner Adam Vincent Maiocco Mikiko Osumi David Michael Shea Kimberly Lashawn Ward Sheena Kapoor David Makso Ronald Christopher Michelle H.W. Shen Glenford Washington Robert L. Keates Elnur Mammadov Owens Aliza Shana Sherman Warmington Sarah Nicole Kelly Anthony James Marcavage Alexandra Garcia Pagan Hwa Young Shin Michael Robert Warshal James Luke Kerwin Katherine Emily Markeson Ieback Paick Sue-hyung Shin Melissa Marie Welsh Allon Asis Khakshouri Michael Joseph Marone Anna Agnieszka Rintaro Shinohara Chen Wen Rassul Emil Khalilzadeh- Ladawn Marie Marsters Pankiewicz Batia Shneerson Jennifer Clare Wheater schabestari Constance Lillian Martin Hyung Jun Park Skyler Stuart Showell Alyssa Leith Whitbeck Jai Young Kim Solange Marie Martin Seungkyoo Park Steven Howard Shulman Christopher Lee Wilson Sung Bae Kim Nitin Richard Masilamani Sung Duck Park Mark Russell Sigmon Martin Louis Wilson Sungho Kim Rabie Rajai Masri Ameet I. Patel Sze Kuan Sim Douglas Musto Wink Benjamin W. 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Ramos Mariette Jantine Stigter Arthur Christopher Young Seboong Kwag Stacy Ann Mikulik Leah McCallister Ray Patrick Stoltz Brittany Elizabeth Young Brittany La Raymond Milani Michael John Reck Ishaiahu Strausz Wayne Conrad Young Justin Collier Larson Darren J. Mills Karen Miller Reese James Scott Kenneth Jie Yuan Christine Lasalde Peter Milne Lamine Manuel Reese Strickland Andrew Aaron Zashin Lester Lau Shinichi Miyoshi Christopher Reilly Arshi Suhail Kejie Zhang Jean-Pierre S. Lavielle Carol Molnar Genevieve Hernandez Lana Sukhman Ling Jia Zhang Ariel Norman Lavinbuk Megan Moran-Gates Reyes Kevin P. Sullivan Yue Zhou Aubrey Guy Lawson Stephen Joseph Moroz Natalia Carolina Reyna Timothy Vincent Sullivan Dayou Zhu Jennifer Phuong Nam Le Kokoro Motegi Erin Marie Reynolds Amy K. Sung Katarina Goerke Zivkovic Julian Todd Lee Christian Mueller Barry Wood Rickert Yutaka Suzuki Mary Jungeun Lee Catherine D. Mulrow David M. 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72 | November/December 2007 | NYSBA Journal CLASSIFIED NOTICES
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NYSBA Journal | November/December 2007 | 73 THE LEGAL WRITER sentence makes sense if you say “They Incorrect: “Someone used their pen to CONTINUED FROM PAGE 80 argued the motion.” Therefore: “He and deface the judge’s bench.” Becomes: they argued the motion.” Incorrect: “Someone used his pen to deface the “The courtroom’s acoustics (acoustical “Mary and me went to court.” In this judge’s bench.” To eliminate the sexist qualities) are poor.” (Plural.) Example: example in which “Mary” replaces a language, change to “Someone used a “Athletics (athletic training) isn’t pronoun, follow the same rule: Delete pen to deface the judge’s bench.” part of law school.” (Singular.) Or: “Mary.” The sentence makes sense if The “one” exception: “Attorney “Athletics (sports) are popular with you say “I went to court.” Therefore: Able is one of those jurists who knows sports attorneys.” (Plural.) Example: “Mary and I went to court.” Incorrect: what he is doing.” Becomes: “Attorney “Politics affects every aspect of our “The judge played softball with Henry Able is one of those jurists who know lives.” (Singular.) Or: “His politics and I.” The sentence doesn’t make what they are doing.” (opinions) aren’t going to affect our sense if you delete “Henry and.” The The “not one” exception: If “none” decision.” (Plural.) sentence would be, incorrectly: “The means “no one” or “not one,” the verb 2. Pronouns. Pronouns substitute judge played softball with I.” Therefore: is singular. If “none” refers to more for nouns. Some common singular “The judge played softball with Henry than one person or thing, the verb is pronouns: “he,” “her,” “hers,” “him,” and me.” plural. Examples: “None of us [mean- “his,” “I,” “it,” “me,” “mine,” “my,” Never use these nonstandard reflex- ing not one of us] knows grammar.” and “she.” Some common plural pro- ive and intensive pronouns: “their- “None of the attorneys know how to nouns: “its,” “our,” “ours,” “their,” self,” “theirselves,” “themself,” and write the brief.” “theirs,” “them,” “they,” “us,” and “themselfs.” A “pair” of exceptions: “A pair of “we.” Some pronouns stay the same Pronouns must agree with their socks” but “three pairs of socks.” whether they’re singular or plural: antecedents in gender, person, and “Both,” “few,” “many,” “others,” “you,” “your,” and “yours.” number. An antecedent is the noun to and “several” are always plural. “All,” “any,” “more,” “most,” “none,” and “some” are singular or Legal writers will object to you plural depending on the noun or pro- noun to which they refer. Incorrect: “All fusing participles. the attorneys eats lunch at Forlini.” Becomes: “All the attorneys eat lunch at Forlini.” Incorrect: “All the pizza in the Use reflexive and intensive pro- which the pronoun refers. Example of judge’s chambers are gone.” Becomes: nouns only to refer back to a pronoun. a singular antecedent with a singular “All the pizza in the judge’s chambers Some common reflexive and inten- pronoun: “Jane [singular antecedent] is gone.” sive pronouns: “myself,” “yourself,” alleges that XYZ Corp. violated her Collective nouns in American usage “yourselves,” “ourselves,” “herself,” [singular, feminine pronoun] consti- take a singular verb. Some common “himself,” “themselves,” and “itself.” tutional rights.” Example of a plu- collective nouns: “appellate court,” Examples: “I said that to myself.” ral antecedent with a plural pronoun: “army,” “assembly,” “audience,” (Reflexive pronoun.) “I myself said “Mary and Jane [plural antecedent] “board,” “committee,” “couple,” that.” (Intensive pronoun.) Incorrect: allege that XYZ Corp. violated their “crowd,” “family,” “jury,” “major- “The judge and me [or myself] went [plural pronoun] rights.” ity,” “number,” and “team.” Incorrect: to the courtroom.” It’s not “me [or Indefinite pronouns don’t refer to “The jury was right. They decided cor- myself] went to the courtroom.” It’s “I any specific person or thing. Here are rectly.” Becomes: “The jury was right. went to the courtroom.” Therefore: “The some common indefinite pronouns: It decided correctly.” Or: “The jurors judge and I went to the courtroom.” “all,” “any,” “anyone,” “anybody,” were right. They decided correctly.” Here’s a tip when you write a sen- “anything,” “each,” “either,” “every- Incorrect: “The family won the case. tence with two or more pronouns: one,” “everybody,” “everything,” They celebrated.” Becomes: “The family Delete the first pronoun. Then ask “little,” “much,” “neither,” “nobody,” won the case. It celebrated.” whether the sentence reads with an “no one,” “none,” “nothing,” “other,” “We” versus “us.” To determine “I,” “me,” “he,” “him,” “she,” “her,” “one,” “somebody,” “someone,” and when to use the pronouns “we” or “they,” or “them.” Incorrect: “She and “something.” These indefinite pro- “us,” drop the noun or noun phrase him went to court.” Delete “she.” The nouns are always singular. Incorrect: before the pronoun. Incorrect: “Us sentence makes sense if you say “He “Everyone has their price.” Becomes: attorneys can no longer tolerate the went to court.” Therefore: “She and he “Everyone has his price.” To eliminate firm’s policies.” If you drop the noun went to court.” Incorrect: “He and them the sexist language, rewrite the sen- “attorneys,” the sentence wouldn’t argued the motion.” Delete “he.” The tence. Correct: “Everyone has a price.” make sense: “Us can no longer toler-
74 | November/December 2007 | NYSBA Journal ate the firm’s policies.” Correct: “We The writer did not mean to write, exam if she had studied harder.” “The attorneys can no longer tolerate the “The judge feared the Constitution.” suspect acted as if he were guilty.” firm’s policies.” If you drop the noun Becomes: “The judge feared that the “The judge requested Mrs. Doe’s pres- “attorneys,” the sentence makes sense: Constitution would become a shield ence at the hearing.” “We can no longer tolerate the firm’s for lawlessness.” Or: “The judge feared 5. Irregular verbs. For most verbs, policies.” Incorrect: “The firm has given the Constitution’s becoming a shield form the past tense by adding a “d” we paralegals no alternative.” If you for lawlessness.” or “ed” at the end of the verb. “Talk” drop the noun “paralegals,” the sen- 4. Verb Tenses and Moods. Verbs becomes “talked.” “Play” becomes tence wouldn’t make sense: “The firm have six tenses: present, past, future, “played.” Other verbs are irregular. has given we no alternative.” Correct: present perfect, past perfect, and future Irregular verbs change a vowel and “The firm has given us paralegals no perfect. The last three tenses (pres- add “n” or “en”; change a vowel and alternative.” If you drop the noun, the ent perfect, past perfect, and future add “d” or “t”; or don’t change at all. sentence now makes sense: “The firm perfect) are also known as the past To form the past participle, use a has given us no alternative.” participle form. The present refers to helping verb: “is,” “are,” was,” or “has 3. Fused Participles. Fused parti- actions occurring when the writer is been.” Then add the principal part of ciples occur when a writer fails to use writing. The past refers to actions that the verb. a possessive form of a noun or pro- occurred before the writer wrote. The Examples: “Arise” (present tense) noun to introduce a gerund. Use logic future refers to actions that will occur becomes “arose” (past tense) becomes to solve fused-participle problems after the writer writes. The present “arisen” (past participle). “Bear” by eliminating miscues. Ask yourself perfect refers to actions that began in becomes “bore” becomes “born” or where the reference and stress should the past and were completed before “borne.” “Beat” becomes “beat” be. Incorrect: “The People objected to the present. Use the past perfect when becomes “beaten.” “Become” becomes the defendant leaving the courtroom one past action was completed before “became” becomes “become.” “Begin” a free man.” The gerund “leaving” another past action began. Use the becomes “began” becomes “begun.” is fused into the noun “defendant.” future perfect when an action that “Bite” becomes “bit” becomes “bit- “Leaving” is the object of the preposi- started in the past will end at a certain ten.” “Blow” becomes “blew” becomes tion “to”; “leaving” doesn’t modify the time in the future. “blown.” “Break” becomes “broke” noun “defendant.” In this sentence, the An example of the verb “talk” using becomes “broken.” “Choose” becomes reader might incorrectly believe that the different tenses: “talk” (present); “chose” becomes “chosen.” “Come” the People objected to the defendant. “talked” (past); “will talk” (future); becomes “came” becomes “come.” “Do” Therefore: “The People objected to the “have talked” (present perfect); “had becomes “did” becomes “done.” “Draw” notion that the defendant would leave talked” (past perfect); and “will have becomes “drew” becomes “drawn.” the courtroom a free man.” Or insert talked” (future perfect). “Drink” becomes “drank” becomes an apostrophe: “The People objected to Form the present perfect by using “drunk.” “Drive” becomes “drove” the defendant’s leaving the courtroom “have” or “has” before the past parti- becomes “driven.” “Eat” becomes “ate” a free man.” ciple. Form the past perfect by adding becomes “eaten.” “Fall” becomes “fell” Fused participles affect pronouns. “had” before the past participle. Form becomes “fallen.” “Fly” becomes “flew” Incorrect: “Do you mind us getting all the future perfect by adding “will becomes “flown.” “Forget” becomes “for- these cases?” In this example, the writ- have” before the past participle. got” becomes “forgotten.” “Forgive” er didn’t mean to write “Do you mind Three moods exist in English: indic- becomes “forgave” becomes “forgiven.” us?” But that’s what the reader under- ative, imperative, and subjunctive. Use “Freeze” becomes “froze” becomes “fro- stands. Becomes: “Do you mind our the indicative for statements of facts zen.” “Get” becomes “got” becomes getting all these cases?” Incorrect: “The or questions. Use the imperative for “gotten” or “got.” “Give” becomes police objected to them possessing con- orders or commands. Use the subjunc- “gave” becomes “given.” “Go” becomes traband.” In this example, the writer tive to express a wish, an idea contrary “went” becomes “gone.” “Grow” did not mean, “The police objected to to fact, a requirement, or a sugges- becomes “grew” becomes “grown.” them.” Becomes: “The police objected to tion or recommendation. Examples of “Hide” becomes “hid” becomes “hid- their possessing contraband.” Incorrect: indicative mood: “Julia researches in den.” “Know” becomes “knew” becomes “My parole officer objected to me liv- the library.” “Sarah writes all day.” “known.” “Lie” (horizontal position) ing alone.” The writer did not mean Examples of imperative mood: “Be quiet.” becomes “lay” becomes “lain.” “Ride” to write, “My parole officer objected to “Argue the motion.” Examples of sub- becomes “rode” becomes “ridden.” me living.” Becomes: “My parole officer junctive mood: “She wishes her part- “Ring” becomes “rang” becomes “rung.” objected to my living alone.” Incorrect: ner were here.” “If John were more “Rise” becomes “rose” becomes “risen.” “The judge feared the Constitution aggressive, he’d be a better attorney.” “Run” becomes “ran” becomes “run.” becoming a shield for lawlessness.” “Ashley would have passed the bar “See” becomes “saw” becomes “seen.”
NYSBA Journal | November/December 2007 | 75 “Shake” becomes “shook” becomes the past: “I was,” “you were,” “he (or phrase contained in a subject affects “shaken.” “Shrink” becomes “shrank” she or it) was,” “we were,” and “they the number of the verb that follows. becomes “shrunk.” “Sing” becomes were.” The past participle: “I have When you use “neither . . . nor,” “sang” becomes “sung.” “Sink” becomes been,” “you have been,” “he (or she “either . . . or,” or “not only . . . but “sank” becomes “sunk.” “Speak” becomes or it) has been,” “we have been,” and also,” make sure that the verb agrees “spoke” becomes “spoken.” “Spring” “they have been.” with its nearest subject. When all the becomes “sprang” becomes “sprung.” 6. Gerunds. A gerund is the sub- elements are singular, the verb should “Steal” becomes “stole” becomes “sto- ject or object of a verb, infinitive, or also be singular. When all the elements len.” “Strive” becomes “strove” becomes preposition that ends in “ing.” Use are plural, the verb should be plu- “striven.” “Swear” becomes “swore” gerunds to avoid nominalizations, or ral. When the elements are different becomes “sworn.” “Swim” becomes converting verbs to nouns. Incorrect: in number, the verb takes the num- “swam” becomes “swum.” “Take” “The impeachment of his testimony ber of the closer. Incorrect: “Neither becomes “took” becomes “taken.” “Tear” will be difficult.” Becomes: “Impeaching the judge nor his court attorney are becomes “tore” becomes “torn.” “Throw” his testimony will be difficult.” in chambers.” Becomes: “Neither the becomes “threw” becomes “thrown.” A gerund error occurs when the judge nor his court attorney is in cham- “Wake” becomes “woke” or “waked” gerund modifies the wrong word in bers.” Incorrect: “Neither the judge nor becomes “woken” or “waked.” “Wear” the sentence. Solve a gerund error in his court attorneys was in chambers.” becomes “wore” becomes “worn.” one of three ways: (1) degerundize Becomes: “Neither the judge nor his “Write” becomes “wrote” becomes “writ- and place the verb after the subject; court attorneys were in chambers.” ten.” (2) bifurcate the sentence; or (3) sub- Incorrect: “Neither the judges nor ordinate. Incorrect: “The court granted their court attorney were in cham- the motion to suppress finding that the bers.” Becomes: “Neither the judges nor Parallel structure police lied.” This sentence suggests their court attorney was in chambers.” that the motion to suppress found Incorrect: “Neither you nor I are in is both intelligent that the police lied. Here’s a way to chambers.” Becomes: “Neither you nor correct the sentence by degerundizing I am in chambers.” and a necessity. the verb after the subject: “The court Multiple subjects modified by found that the police lied and therefore “each,” “every,” and “many” take a granted the motion to suppress.” You singular verb. Correct: “Every court Some irregular verbs stay the same may also split the sentence into two: attorney and every law clerk has been in the past tense and past partici- “The court found that the police lied. told to attend.” ple. Examples: “Bend” becomes “bent” It therefore granted the motion to sup- 8. Parallelism. Sentences are paral- (past) becomes “bent” (past participle). press.” Another way to correct the sen- lel when nouns match nouns, verbs “Bring” becomes “brought” in both tence is to subordinate: “After finding match verbs, gerunds match gerunds, forms. “Catch” becomes “caught.” that the police lied, the court granted and so on. Incorrect: “A rule that is both “Creep” becomes “crept.” “Dig” the motion to suppress.” intelligent and a necessity.” Becomes: becomes “dug.” “Dive” becomes “dived” 7. Agreement. A verb must agree “A rule both intelligent and necessary.” or “dove” becomes “dived.” “Fight” in numbers with its subjects. Incorrect: Incorrect: “The rule is found in the becomes “fought.” “Hold” becomes “The color of the clouds are gray.” cases, statutes, and in the contracts.” “held.” “Kneel” becomes “knelt.” Becomes: “The color of the clouds is Becomes: “The rule is found in the cases, “Lay” becomes “laid.” “Lead” becomes gray.” (Color is gray.) Incorrect: “The dif- statutes, and contracts.” Incorrect: “No “led.” “Lie” (falsehood) becomes “lied.” ference between Cardozo and Holmes, drinking, smoking or food.” Becomes: “Lose” becomes “lost.” “Prove” becomes and between Frankfurter and Jackson, “No drinking, smoking, or eating.” “proved” becomes “proved” or “prov- are striking.” Becomes: “The differ- Parallelism requires that paral- en.” “Say” becomes “said.” “Show” ence between Cardozo and Holmes, lel coordinates form matching pairs: becomes “showed” becomes “showed” and between Frankfurter and Jackson, “although/nevertheless,” “although/ or “shown.” “Teach” becomes “taught.” is striking.” (Difference is striking.) yet,” “as/as,” “both/and,” “either/ Some irregular verbs stay the same Incorrect: “Justice Jackson, as well as or,” “if/then,” “just as/so,” “neither/ in the present, past, and past participle: the hundreds of judges who emulate nor,” “not/but,” “not only/but also,” “burst” and “hurt.” his writing style, rely on plain Anglo- and “whether/or.” Incorrect: “Not only The trickiest verb in English is “to Saxon English.” Becomes: “Justice do I like landlord-tenant practice but be.” Here are the variations in the Jackson, as well as the hundreds of also family law.” Becomes: “Not only present: “I am,” “you are,” “he (or judges who emulate his writing style, do I like landlord-tenant practice, but she or it) is,” “we are,” “you are,” and relies on plain Anglo-Saxon English.” I also like family law.” Or: “I like not “they are.” Here are the variations in (Justice Jackson relies.) Nothing in a only landlord-tenant practice but also
76 | November/December 2007 | NYSBA Journal family law.” Or, in the positive: “I like or independent, clause, the clause consistent. Consistently false.” Use landlord-tenant practice and family becomes a subordinate, or dependent, sentence fragments for commands. law.” clause. Example of a main clause: Examples: “Stop!” “Evacuate the build- Exceptions: Use “neither . . . or,” “The attorney questions the witness.” ing!” “Get out!” Use sentence frag- “not . . . or,” or “not . . . nor” only if Subordinate clause: “When the attor- ments as a transition. Example: “First, the first negative doesn’t carry over ney questions the witness.” Attach the facts. Second, the law.” Use sen- to the second negative or for dramatic subordinate clauses to main, or inde- tence fragments to negate: “The wit- emphasis. pendent, clauses. Example: “When the ness’s testimony was honest. Not.” 9. Sentence Fragments. A sentence attorney questions a witness [subor- Also use sentence fragments to answer fragment isn’t a short sentence. It’s a dinate clause], the judge will interrupt questions: “Have you told us the truth? sentence that can’t stand on its own, the testimony [main clause].” Here’s Probably not.” an incomplete sentence. A sentence a list of other subordinating conjunc- 10. “And” versus “To.” Don’t use fragment lacks a subject or a verb. tions: “after,” “as,” “as if,” “as long as,” “and” to show causality or in an infini- Example: “The attorney questioning “as soon as,” “as though,” “because,” tive phrase. Use “to.” Incorrect: “I went the witness.” “Questioning” is a parti- “before,” “even if,” “even though,” to the courthouse and got the judg- ciple modifying “attorney.” To create a “if,” “if only,” “in order that,” “in that,” ment.” Becomes: I went to the court- complete sentence, change “question- “no matter how,” “now that,” “once,” house to get the judgment.” Incorrect: ing” from a participle to a main verb “provided,” “rather than,” “since,” “Look and see whether the judge is or add a main verb. Becomes: “The “so that,” “than,” “that,” “though,” on the bench.” Becomes: “Look to see attorney questioned the witness.” Or: “till,” “unless,” “whenever,” “where,” whether the judge is on the bench.” “The attorney was questioning the wit- “whereas,” “wherever,” and “while.” In the next issue, the Legal Writer ness.” Exceptions: Use sentence fragments will continue with a second set of 10 Sometimes a fragment is a subor- for stylistic effect. Examples: “The rape grammar issues. Following that col- dinate clause posing as a complete victim had the courage to testify. More umn will be columns on punctuation sentence. If you add “although,” courage than most people would have and usage controversies. ■ “when,” or “until” in front of a main, had.” “The witness’s testimony was
FAMILY LAW have to be filed. If the client is unable wedding or bar mitzvah party. If the CONTINUED FROM PAGE 53 or unwilling to explain the question- income is lower than the expenses, to destroy the claims and, worse, the able assets, then the attorney has the there should be an explanation for the credibility of the client. Had the attor- obligation to advise the client of the source of the money used to make up ney taken the trouble and time to pre- consequences. If the client insists upon the shortfall. This may appear in the pare the initial net worth affidavit with continuing the concealment, the attor- form of debt (commonly credit card care and with proper documentation, ney has no alternative other than to dis- debt), a financial windfall, such as an then the disaster facing both the attor- continue representation of the client. inheritance or a recovery in a personal ney and client at the time of trial could Taking the “high road” is not only injury action or, perhaps, lottery win- have been averted. mandated, it also minimizes the risk nings. Or, it is possible the expenses The rewards for the attorney who of the attorney being censured, sanc- are listed inaccurately. The numbers carefully attends to the contents of the tioned, or something worse! It elimi- must jive and make sense. initial statement of net worth are sig- nates the horror of being confronted Consequently, extreme care, which nificant, and the attorney will know at the time of trial with two conflicting often requires considerable time, must from the outset of the case that all of the net worth affidavits without an ade- be taken in order to prepare the initial financial information is “on the table” quate explanation for the differences. net worth statement so that both the and that he or she may certify the finan- Experienced matrimonial attorneys client and the attorney can live with it cial statement with peace of mind. do not take the client’s word but require comfortably throughout the duration What happens if the client admits at documentation to support the figures, of the case, even if there are changes in the outset that there is “hidden” money particularly those that appear to be out the client’s finances during the course or assets? The answer is obvious. The of line. Income will be approximately of the litigation. The net worth state- attorney must explain that it is neces- the same as expenses, or it may be ment is frequently the most neglected sary to be truthful and forthright and higher or lower. If income is higher document, yet it is probably the most that the issue of credibility is a primary than the expenses, there should be important one in the resolution of consideration in the proper presenta- assets to explain the accumulation of financial issues in practically every tion of the client’s case, whether it the additional funds or the expendi- matrimonial case. ■ be on a motion, a conference or a ture for “one time” expenses, such trial. Amended income tax returns may as remodeling the house or a lavish 1. N.Y. Domestic Relations Law § 236 Pt. B 4a.
NYSBA Journal | November/December 2007 | 77 HEADQUARTERS STAFF EMAIL ADDRESSES THE NEW YORK BAR FOUNDATION
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78 | November/December 2007 | NYSBA Journal 2007-2008 OFFICERS MEMBERS OF THE HOUSE OF DELEGATES
FIRST DISTRICT Longo, Mark A. Edmunds, David L., Jr. KATHRYN GRANT MADIGAN Aaron, Stewart D. Romero, Manuel A. Embser, James T. President Abernethy, Samuel F. Sunshine, Hon. Jeffrey S. Evans, Lydia V. Binghamton †* Alcott, Mark H. Sunshine, Hon. Nancy T. Fisher, Cheryl Smith Alden, Steven M. Szochet, Diana J. * Freedman, Maryann Saccomando Anello, Robert J. Gerstman, Sharon Stern BERNICE K. LEBER THIRD DISTRICT Badner, Lisa Ray Ayers, James B. * Hassett, Paul Michael President-Elect Badway, Ernest Edward Breen, Michael L. Lamantia, Stephen R. New York Barson, Alan D. Casserly, Timothy E. Manias, Giles P. Bartlett, Linda G. Cloonan, William N. McCarthy, Jeremiah J. JAMES B. AYERS Bienstock, Peter Copps, Anne Reynolds McCarthy, Joseph V. Blanchard, Kimberly S. Davidoff, Michael Meyer, Harry G. Treasurer Borsody, Robert P. Dolin, Thomas E. O’Donnell, Thomas M. Albany Boyers, Hon. Seymour Doyle, Hon. Cathryn M. Porcellio, Sharon M. Brett, Barry J. Farley, Susan E. Sconiers, Hon. Rose H. MICHAEL E. GETNICK Brown Spitzmueller, Janiece Fernandez, Hermes Subjack, James P. Brown, Geraldine Reed Young, Oliver C. Secretary Gold, Majer H. Brown, Peter Greenberg, Henry M. NINTH DISTRICT Utica Burns, Howard W., Jr. Greenthal, John L. Burke, Patrick T. + Campos-Galvan, Manuel Higgins, John Eric Byrne, Robert Lantry MARK H. ALCOTT Caraballo, Dolly Higgins, Patrick J. Campanaro, Patricia L. Chambers, Hon. Cheryl E. Immediate Past President Kelly, Matthew J. Casey, Bridget M. Cheng, Pui Chi Kretser, Hon. Rachel Dohn, Robert P. New York Chin, Sylvia Fung Lally, Sean P. Enea, Anthony J. Christian, Catherine A. Liebman, Bennett M. Fontana, Lucille A. Cohen, Carrie H. Lynch, Margaret Comard Gordon Oliver, Arlene Anoinettette VICE-PRESIDENTS Collazo, Ernest J. Meislahn, Harry P. Gouz, Ronnie P. * Cometa, Angelo T. Miranda, David P. Kranis, Michael D. Crespo, Louis FIRST DISTRICT Moy, Lillian M. Lagonia, Salvatore A. Davis, Tracee E. Netter, Miriam M. Markhoff, Michael S. Claire P. Gutekunst, New York Donoghue, Gail Perino, Justina Cintron Marwell, John S. Draper, Thomas G., Jr. Potter, James T. * Miller, Henry G. Susan B. Lindenauer, New York Drayton, Joseph Michael Powers, John K. Murray, Conal E. Eppler, Klaus Salkin, Prof. Patricia E. †* Ostertag, Robert L. SECOND DISTRICT Finerty, Hon. Margaret J. Sandner, James R. Sciortino, Sandra B. Fink, Rosalind S. Barry Kamins, Brooklyn Schofield, Robert T., IV Selinger, John * Forger, Alexander D. †* Tharp, Lorraine Power †* Standard, Kenneth G. Frank, Paul M. Thornton, Timothy B. Thornhill, Herbert L., Jr. THIRD DISTRICT Fries, Richard S. * Williams, David S. Townley, Rosemary A. Gesinsky, Loren M. * Yanas, John J. Van Scoyoc, Carol L. Hon. Rachel Kretser, Albany * Gillespie, S. Hazard FOURTH DISTRICT Wallach, Sherry Levin Grays, Taa R. Welby, Thomas H. OURTH ISTRICT Breedlove, Brian H. F D Gredd, Helen A. Wilson, Leroy, Jr. Gross, Marjorie E. Burke, J. David Nicholas E. Tishler, Niskayuna TENTH DISTRICT Gutekunst, Claire P. Caffry, John W. * Bracken, John P. Haig, Robert L. Coffey, Peter V. Buonora, John L. FIFTH DISTRICT Hariton, David P. Cullum, James E. Cartright, Valerie M. Harris, Joel B. Ferradino, Stephanie W. David M. Hayes, Syracuse Castillo, Nelson A. Hoffman, Stephen D. Haelen, Joanne B. Chase, Dennis R. * King, Henry L. Rider, Mark M. SIXTH DISTRICT Clarke, Lance D. Kobak, James B., Jr. Rodriguez, Patricia L. R. Elder-Howell, Andrea M. Kougasian, Peter M. Sterrett, Grace David A. Tyler, Ithaca Fishberg, Gerard †* Krane, Steven C. Tishler, Nicholas E. Franchina, Emily F. Kuntz, Dr. William F., II FIFTH DISTRICT SEVENTH DISTRICT Gann, Marc Larson, Wallace L., Jr. Gall, Erin P. Giorgio, Frank, Jr. David M. Schraver, Rochester + Leber, Bernice K. Getnick, Michael E. Gross, John H. Leo, Robert J. Greeley, Kristin B. +* Levin, A. Thomas IGHTH ISTRICT Lieberman, Ellen Hayes, David M. E D Levy, Peter H. Lindenauer, Susan B. Larose, Stuart J. Luskin, Andrew J. Sharon Stern Gerstman, Buffalo * MacCrate, Robert Longstreet, Ami S. Makofsky, Ellen G. Martin, Edwina Frances McClusky, James P. Margolin, Linda U. NINTH DISTRICT Mazzarelli, Hon. Angela M. Mitchell, Richard C. Mihalick, Andrew J. McEnroe, Diane Crosson Pellow, David M. * Pruzansky, Joshua M. John S. Marwell, Mount Kisco Miller, Michael Peterson, Margaret Murphy Purcell, A. Craig Millett, Eileen D. Priore, Nicholas S. * Rice, Thomas O. TENTH DISTRICT Minkowitz, Martin Richardson, M. Catherine Robinson, Derrick J. Moreland, Thomas H. Stanislaus-Fung, Karen John H. Gross, Hauppauge Smolowitz, Barry M. Morril, Mark C. SIXTH DISTRICT Steinberg, Harriette M. Nathanson, Eugene LEVENTH ISTRICT Cummings, Patricia A. Stempel, Vincent F., Jr. E D O’Neill, Paul J., Jr. Denton, Christopher Thompson, Charlene R. * Patterson, Hon. Robert P., Jr. Seymour W. James, Jr., Kew Gardens Egan, Shirley K. Walsh, Owen B. Paul, Gerald G. Gorgos, Mark S. Winkler, James R. TWELFTH DISTRICT Reed, Thomas A. † Madigan, Kathryn Grant ELEVENTH DISTRICT Rifkin, Richard Marris, Karin Huntley Cohen, David Louis Steven E. Millon, Bronx Robertson, Edwin David May, Michael R. Dietz, John R. Rosenthal, Lesley Friedman Sheehan, Dennis P. Goldblum, A. Paul Rosner, Seth Smyk, Stephen D. Haskel, Jules J. Rothstein, Alan Tyler, David A. MEMBERS-AT-LARGE OF THE Russell, William T., Jr. James, Seymour W., Jr. EXECUTIVE COMMITTEE * Seymour, Whitney North, Jr. SEVENTH DISTRICT Leinheardt, Wallace L. Sherman, Carol R. Barney, Brian J. Lomuscio, Catherine Vincent E. Doyle, III Sherwin, Peter J.W. Brown, T. Andrew Lonuzzi, John A. Sigmond, Carol Ann Buholtz, Eileen E. Nashak, George J., Jr. David L. Edmunds, Jr. Silkenat, James R. †* Buzard, A. Vincent Terranova, Arthur N. Smith, Hon. George Bundy Castellano, June M. Wimpfheimer, Steven Hermes Fernandez Doyle, Hon. John D. Sonberg, Hon. Michael R. TWELFTH DISTRICT Lawrence, C. Bruce Michael Miller Steinberg, Lewis R. Chavez, Daniel M. Lightsey, Mary W. Stenson, Lisa M. Friedberg, Alan B. David P. Miranda * Moore, James C. Tesser, Lewis Millon, Steven E. * Palermo, Anthony R. Wachtler, Lauren J. * Pfeifer, Maxwell S. Peter J.W. Sherwin Reynolds, J. Thomas Williams, Bryan R. Schwartz, Roy J. Schraver, David M. Lauren J. Wachtler Younger, Stephen P. Stansel, Lynn Schultz, Jill K. Zulack, John F. Summer, Robert S. Stephen P. Younger Smith, Thomas G. SECOND DISTRICT Weinberger, Richard * Vigdor, Justin L. Adler, Roger B. * Witmer, G. Robert, Jr. OUT OF STATE Branda, RoseAnn C. Cahn, Jeffrey Barton Cohn, Steven D. EIGHTH DISTRICT * Fales, Haliburton, II Golinski, Paul A. Brady, Thomas C. Tilton, Samuel O. Kamins, Barry Doyle, Vincent E., III * Walsh, Lawrence E.
† Delegate to American Bar Association House of Delegates * Past President
NYSBA Journal | November/December 2007 | 79 THE LEGAL WRITER BY GERALD LEBOVITS
GERALD LEBOVITS is a judge of the New York City Civil Court, Housing Part, in Manhattan and an adjunct professor at St. John’s University School of Law. He thanks court attorney Alexandra Standish for assisting in researching this column. Judge Lebovits’s e-mail address is [email protected].
Do’s, Don’ts, and Maybes: Legal Writing Grammar — Part I
n four of the last five columns, the “books.” Add “es” if the noun ends in dren.” “Foot” becomes “feet.” “Goose” Legal Writer discussed the things “s,” “sh,” “ch,” or “x.” “Dress” becomes becomes “geese.” “Man” becomes “men.” Iyou should and shouldn’t do in “dresses.” “Wish” becomes “wishes.” “Mouse” becomes “mice.” “Ox” becomes legal writing. We continue with 10 “Church” becomes “churches.” “Fox” “oxen.” “Person” becomes “people.” grammar issues and, in the next col- becomes “foxes.” “Tooth becomes “teeth.” “Woman” umn, with 10 more. Studying these 20 If the noun ends in a “y” and a con- becomes “women.” grammar issues offers a framework to sonant precedes the “y,” change the Some nouns stay the same whether write comprehensible, intelligent doc- “y” to “i” and add “es.” “Baby” becomes they’re singular or plural. Example: uments. Good grammar is a good start, “babies.” “Beauty” becomes “beauties.” “deer,” “fish,” “moose,” “Portuguese,” although good legal writing demands If the noun ends in a “y” and a vowel “series,” “sheep,” and “species.” much more. Knowing grammar won’t precedes the “y,” add an “s.” “Alley” Some words maintain their Latin or make you a good legal writer. But becomes “alleys.” “Attorney” becomes Greek form in the plural. “Nucleus” you’re a poor legal writer if you don’t “attorneys.” becomes “nuclei”; “syllabus” becomes know grammar. Pluralize most nouns ending in “f” “syllabi” (“syllabuses” is accept- Grammar is a system or set of rules by adding “s.” “Brief” becomes “briefs.” able); “focus” becomes “foci”; “fun- that govern a language. English cat- “Proof” becomes “proofs. “Roof” becomes gus” becomes “fungi”; “cactus” becomes egorizes words into eight different “roofs.” “Dwarf” becomes “dwarfs.” “cacti” (“cactuses” is acceptable); “the- parts of speech according to how the Exception: Change some nouns end- sis” becomes “theses”; “crisis” becomes words function in a sentence: nouns, ing in “f” or “fe” to “v” and add “es.” “crises”; “phenomenon” becomes “phe- pronouns, verbs, adverbs, adjectives, “Elf” becomes “elves.” “Knife” becomes nomena”; “index” becomes “indices” conjunctions, interjections, and prepo- “knives.” “Leaf” becomes “leaves.” (“indexes” is acceptable); “appendix” sitions. Nouns refer to an event, idea, “Life” becomes “lives.” “Wolf” becomes becomes “appendices” (“appendixes” person, place, quality, substance, or “wolves.” is acceptable); “criterion” becomes “cri- thing. Pronouns are used in place of If a name ends in “f,” add an “s” to teria.” a noun. Verbs name an action, occur- form the plural. “Mr. and Mrs. Wolf” rence, or state of being. Adverbs mod- becomes “the Wolfs.” A verbs must agree ify verbs, adjectives, clauses, sentenc- To pluralize compound words, es, and other adverbs. Adverbs don’t make the main word plural. “Attorney with its subject. modify nouns. Adjectives modify general” becomes “Attorneys general.” nouns or pronouns. A conjunction con- “Court-martial” becomes “courts-mar- If a noun ends in “ics” and refers nects two words, phrases, or clauses. tial.” “Passerby” becomes “passersby.” to a body of knowledge, a science, or An interjection shows strong emotion. “Sister-in-law” becomes “sisters-in course of study, it’s usually singular. A preposition links to another word in law.” Two exceptions: (1) if the com- Examples: “mathematics,” “phonetics,” the sentence a noun or a pronoun fol- pound word has no noun, add an and “semantics.” If a noun ends in “ics” lowing the preposition. “s” to the end of the word; (2) if the and refers to concrete activities, prac- Here are the most common gram- compound word ends in “ful,” add an tices, or phenomena, it’s usually plural. mar errors — not the controversies; “s” at the end. Examples: “Dress-up” Examples: “athletics,” “mechanics,” only the recognized, accepted errors becomes “dress-ups.” “Takeoff” becomes and “acoustics.” Sometimes whether — and how to fix them. takeoffs.” “Teaspoonful” becomes “tea- nouns are singular or plural depends 1. Singular and plural nouns. For spoonfuls.” “Cupful” becomes “cup- on their meaning. Example: “Acoustics most nouns, add “s” to form the plu- fuls.” is the study of sound.” (Singular.) Or: ral. “Bat” becomes “bats.” “Window” Some nouns change when they becomes “windows.” “Book” becomes become plural. “Child” becomes “chil- CONTINUED ON PAGE 74
80 | November/December 2007 | NYSBA Journal
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