Bridge the Gap Day 1 & 2

BRIDGE THE GAP DAY 1 & 2

NSTITUTE Prepared in connection with a Continuing Legal Education course presented at New York County Lawyers’ Association, 14 Vesey Street, New York, NY I scheduled for March 21st and March 28th, 2014

Faculty: Richard Grayson, Law Offices of Richard Grayson; Stephanie Waschitz, Thomson Reuters; Ronnie Powell, Bressler Amery & Ross; Glenn Christofides, Bressler Amery & Ross; Andrew Cabasso, JurisPage; Phillip Smallman, Law Office of Phillip CLE Smallman; Briana Denney, Newman & Denney PC; Jonathan Pressment, Haynes and Boone LLP; Judge Gerald Lebovits, New York City Civil Court

NYCLA

This course has been approved in accordance with the requirements of the New York State Continuing Legal Education Board for a maximum of 16 Transitional and Non-Transitional credit hours; 7 Professional Practice/Law Practice Management;. 6 Skills; 3 Ethics This program has been approved by the Board of Continuing Legal education of the Supreme Court of New Jersey for 16 hours of total CLE credits. Of these, 3 qualify as hours of credit for ethics/professionalism, and 4 qualify as hours of credit toward certification in civil trial law, criminal law, workers compensation law and/or matrimonial law. ACCREDITED PROVIDER STATUS: NYCLA’s CLE Institute is currently certified as an Accredited Provider of continuing legal education in the States of New York and New Jersey.

Information Regarding CLE Credits and Certification New York Bridge the Gap March 21st and March 28th, 2014; 9:00 AM to 5:00 PM

The New York State CLE Board Regulations require all accredited CLE providers to provide documentation that CLE course attendees are, in fact, present during the course. Please review the following NYCLA rules for MCLE credit allocation and certificate distribution.

i. You must sign-in and note the time of arrival to receive your course materials and receive MCLE credit. The time will be verified by the Program Assistant.

ii. You will receive your MCLE certificate as you exit the room at the end of the course. The certificates will bear your name and will be arranged in alphabetical order on the tables directly outside the auditorium.

iii. If you arrive after the course has begun, you must sign-in and note the time of your arrival. The time will be verified by the Program Assistant. If it has been determined that you will still receive educational value by attending a portion of the program, you will receive a pro-rated CLE certificate.

iv. Please note: We can only certify MCLE credit for the actual time you are in attendance. If you leave before the end of the course, you must sign-out and enter the time you are leaving. The time will be verified by the Program Assistant. Again, if it has been determined that you received educational value from attending a portion of the program, your CLE credits will be pro-rated and the certificate will be mailed to you within one week.

v. If you leave early and do not sign out, we will assume that you left at the midpoint of the course. If it has been determined that you received educational value from the portion of the program you attended, we will pro-rate the credits accordingly, unless you can provide verification of course completion. Your certificate will be mailed to you within one week.

Thank you for choosing NYCLA as your CLE provider!

New York County Lawyers’ Association Continuing Legal Education Institute 14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646

New York Bridge the Gap March 21st and March 28th , 2014 9:00AM – 5:00PM

AGENDA

March 21st:

9:00 AM – 10:40 AM Avoiding Common Ethical Pitfalls; Richard Grayson, Law Offices of Richard Grayson NY CLE: 2 Ethics Credits;

10:50 AM - 12:30 PM WestLaw Next Stephanie Waschitz, Esq., Thomson Reuters NY CLE: 2 Skills

12:30 PM – 1:00 PM LUNCH

1:00 PM - 2:40 PM Basic Estate Planning in New York (tentative) Ronnie Powell, Bressler Amery & Ross Glenn Christofides, Bressler Amery & Ross NY CLE: 1.5 Professional Practice/.5 Ethics

2:50 PM – 4:30 PM Your Law Firm’s Internet Presence; Andrew Cabasso, JurisPage How to Use Your Bar Membership to Benefit Your Practice 1.5 Professional Practice; .5 Ethics

New York Bridge the Gap March 21st and March 28th, 2014 9:00AM – 5:00PM

AGENDA

March 28th:

9:00 AM – 10:40 AM What You Must Know to Defend Your Client Successfully; Phillip Smallman, Law Office of Phillip Smallman NY CLE: 2 PP

10:50 AM – 12:30 PM An Introduction to Matrimonial Law Practice Briana Denney, Newman & Denney PC NY CLE: 2 PP

12:30 PM – 1:00 PM LUNCH

1:00 PM – 2:40 PM How to Conduct an Effective Deposition; Jonathan Pressment, Haynes and Boone LLP 2 Skills

2:50 PM – 4:30 PM Effective and Persuasive Legal Writing Judge Gerald Lebovits, New York City Civil Court NY CLE: 2 Skills Continuing Legal Education Institute 14 Vesey Street, New York, N.Y. 10007

New York Bridge the Gap March 21st and March 28th, 2014 9:00 AM – 5:00 PM

COURSE MATERIALS

Section

Avoiding Common Ethical Pitfalls in Your Practice 1

WestLaw Next 2

Basic Estate Planning in New York 3

Your Law Firm’s Internet Presence 4

What You Must Know to Defend Your Client Successfully 5

An Introduction to Matrimonial Law Practice 6

How to Conduct a Successful Deposition 7

Effective and Persuasive Legal Writing 8

Avoiding Common Ethical Pitfalls in Your Law Practice 1 Richard Grayson, Esq.

WestLaw Next 2 Stephanie Waschitz, Esq.

Stephanie Waschitz

Stephanie Waschitz is a Corporate Research Specialist for Thomson Reuters. In this role she provides research and training support to corporate in-house counsel and their support staff. She works with an array of corporate entities including banks, non-profit organizations, corporate security and compliance departments. Prior to joining Thomson Reuters Stephanie was a contract attorney for the firm Simpson, Thacher & Bartlett. She also served as Law Clerk to the Honorable N. Peter Conforti in New Jersey Superior Court. She holds a J.D. from New England School of Law in Boston where she served as a Senior Literary Editor for the New England Journal on Criminal and Civil Confinement. Stephanie earned a bachelor’s degree in political science from Boston University and is a member of the New York and New Jersey State Bars.

Legal Research on WestlawNext NYCLA – March 21, 2014

AGENDA

I. Brief History of Westlaw A. West, the publishing company B. West Editorial Enhancements 1. Case synopsis 2. Headnotes 3. Topic and Key Numbers 4. Editorial scrutiny C. Development of the WestlawNext platform 1. West Search a. 100+ years of editorial analysis of the law b. Emulating best practices of legal researchers c. West Key Number System – the foundation of West Search d. KeyCite e. West Secondary Sources II. Introduction to Legal Research on WestlawNext A. Logging In B. Home Page Overview 1. Global Search Box a. Plain Language Searching b. Terms and Connectors c. Citations d. Key Cite e. Find a database 2. Folder 3. Favorites 4. Frequently Used Items C. Plain Language Searching 1. How it differs from Westlaw Classic a. Based on Key Cite, Key Numbers, Document Linking, Customer Usage Patterns b. No need to choose a database c. Can choose jurisdiction 2. Overview Page a. Most relevant sampling from 14 content sets b. Related Documents c. Narrow 1) Left-side of screen shows filtering options 2) Options change depending on content set 3. Viewing a document a. KeyCite integration b. Tabs c. Toolbar d. New Functions 1) Folders 2) Highlighting 3) Add notes 4) Copy with reference 5) Eye glasses D. Advanced Searching on WestlawNext 1. What is advanced search? 2. Why run an advanced search? 3. Advantages of using advanced search 4. How to run an advanced search a. Advanced search link b. Global search bar E. Browsing to Content 1. Topical research F. Favorites 1. Adding content to your favorites 2. Searching from your favorites III. Key Number System A. WestSearch integration B. When to start your research with the West Key Number System C. How to access the West Key Number System 1. Search for Key Numbers 2. Browse 3. Link IV. Statutory & Regulatory Research on WestlawNext A. Retrieving a statute – by citation, TOC, index, popular name table B. Viewing a statute 1. Toolbar – section arrows, TOC 2. KeyCite 3. Notes of Decisions 4. KeyCite Integration 5. Tabs V. Dockets & News A. Global search bar or Advanced search link B. Create WestClip Alerts to monitor company, individual, industry activity VI. Transactional Tools A. Forms – text forms, checklists, clauses, official PDF forms B. Sample Agreements VI. Research Trail A. Automatically saved for 1 year B. Automatically have trail emailed to you at log-off VII. Folders A. Saved for lifetime of your subscription B. Automatic KeyCite updates C. Share VIII. Mobile Devices A. App for iPad and iPhone B. Mobile site for android phones To get started: www.next.westlaw.com WestlawNext

Basic Estate Planning in New York 3 Ronnie Powell, Esq. Glenn Christofides, Esq.

Attorney At Law | Ronnie Ann Powell | Bressler, Amery, & Ross Page 1 of 2

New Jersey | New York | Florida | Alabama FIRM PRACTICES ATTORNEYS NEWS & EVENTS CAREERS LOCATIONS CONTACT

EDUCATION RONNIE ANN POWELL J.D., Boston University School of Law, AREAS OF PRACTICE Member 1983 New Jersey | New York Taxation A.B., Vassar College, 1980 Tel: 973-514-1200 | Direct: 973-245-0682 Trusts & Estates Fax: 973-514-1660 BAR ADMISSIONS [email protected] NEWS & EVENTS Download vCard New Jersey, 1983 Firm Announcements Legal Assistant: Theresa Kougasian New York, 1984 Speaking Engagements Tel: 973-514-1200, ext. 2276 COURT ADMISSIONS Alerts [email protected] U.S. District Court, District of New Jersey, 1983 Ms. Powell chairs the firm’s Trusts and Estates practice group and serves on the firm's Executive Committee. She has over 25 years of experience in estate planning, trust and estate administration, PROFESSIONAL AFFILIATIONS federal income, estate and gift taxation law, premarital and post-marital agreements, guardianship proceedings, fiduciary litigation and elder law. Ms. Powell implements the full range of lifetime and New Jersey State Bar Association, Real Property, Trusts and Estates Section testamentary estate planning techniques for clients, including estate planning for unmarried couples, same sex married couples, civil union partners and domestic partners, and post-mortem planning. Ms. Powell New York State Bar Association, Trusts oversees all aspects of estate administration, including probate, marshaling and valuation of assets, and Estates Law Section accountings, settlement agreements, will contests, intestacy matters, proceedings in Surrogate's Courts, Essex County Bar Association preparation of federal and state estate and gift tax returns, and Internal Revenue and state audits of estate, Township of Montclair Parking gift and inheritance tax returns. Authority, Commissioner, 2002-2012 Montclair Center Business Improvement Ms. Powell has lectured for the New Jersey Institute of Continuing Legal Education (ICLE) and also Center, Board Member, 2006-2012 conducts seminars in estate planning and estate administration for various organizations. Planned Giving Advisory Group of the Family Service of Morris County, In 2006, Ms. Powell was the recipient of the Partners in Hope Award, bestowed by Partners for Women Member, 2011 and Justice, a not-for-profit organization, for her pro bono work with low-income and abused women in need of legal advice.

Ms. Powell was a Commissioner of the Township of Montclair Parking Authority from 2002-2012, and was a Board Member of the Montclair Center Business Improvement Center from 2006-2012.

Honors/Awards

• Listed in Super Lawyers, 2012-2014 * • Rated AV Preeminent by Martindale-Hubbell *

News & Events

FIRM ANNOUNCEMENTS

Bressler, Amery & Ross Attorneys Named To The 2014 New Jersey Super Lawyer List

Bressler, Amery & Ross Attorneys Named To The 2013 New Jersey Super Lawyer List

Ronnie Powell & Danielle Greene to Speak at NYCLA: New Jersey Bridge the Gap

Eleven Bressler, Amery & Ross Attorneys Named to the 2012 New Jersey Super Lawyer List

Ronnie Powell and Danielle Greene Speak at New Jersey Bridge the Gap – Sponsored by the New York County Lawyers’ Association

SPEAKING ENGAGEMENTS

New Jersey Bridge The Gap, Basic Estate Planning

Estate Planning for Same Sex Couples Seminar, April 17, 2013

NYCLA: New Jersey Bridge the Gap, November 30, 2012

New Jersey Bridge the Gap Sponsored by the New York County Lawyers Association, December 2011

Basic Estate Planning, November 2011

Basic Estate Planning, September 2011

Estate Planning for Unmarried Couples, May 2011

Bridge the Gap:Sponsored by the New York County Lawyers' Association, May 2011

Calling all Collectors: Succession Planning for your Collection, October 2010

New Jersey and New York Bridge the Gap Estate Planning: Sponsored by the New York County Lawyers Association, August 2010

What to Look for When Reviewing an Estate Plan, March 2009

Estate Planning Basics Sponsored by Partners for Women and Justice, October 2008

Estate Planning: An Overview Sponsored by Merrill Lynch, September 2008

Living Wills, Health Care Directives and Powers of Attorney Sponsored by Colgate-Palmolive, November 2007

http://www.bressler.com/AttorneyProfile/RonnieAnnPowell-26.htm 3/18/2014 Attorney At Law | Ronnie Ann Powell | Bressler, Amery, & Ross Page 2 of 2

What To Look For When Reviewing An Estate Plan Sponsored by Future Financial Planners, Inc., June 2007

Civil Unions Under New Jersey Law As it Relates to Trusts & Estates Law

What to Look for when Reviewing an Estate Plan Sponsored by Financial Planning Association of New Jersey, February 2007

ALERTS

Taxation and Trusts & Estate Alert Trusts and Estates Alert, February 24, 2011

HORIZONS

http://www.bressler.com/AttorneyProfile/RonnieAnnPowell-26.htm 3/18/2014 Attorney At Law | Glenn Christofides | Bressler, Amery, & Ross Page 1 of 2

New Jersey | New York | Florida | Alabama FIRM PRACTICES ATTORNEYS NEWS & EVENTS CAREERS LOCATIONS CONTACT

EDUCATION GLENN J. CHRISTOFIDES LL.M. in Taxation, New York University AREAS OF PRACTICE Associate School of Law, 2013 New Jersey | New York Corporate and Business Law J.D., Rutgers University School of Law - Tel: 973-514-1200 | Direct: 973-660-4471 Executive Compensation & Newark, 2007 Fax: 973-514-1660 Employee Benefits B.A., summa cum laude, Rutgers [email protected] College, Rutgers University, 2004 Taxation Download vCard Trusts & Estates Legal Assistant: Theresa Kougasian Tel: 973-514-1200, ext. 2276 BAR ADMISSIONS NEWS & EVENTS [email protected] New Jersey, 2007 Firm Announcements New York, 2009 Speaking Engagements Glenn J. Christofides engages in a practice focused on the needs of individual clients and business Publications entities. He counsels clients regarding Taxation, Trusts and Estates, and Corporate and Business matters. COURT ADMISSIONS Alerts Mr. Christofides advises owners of closely-held entities on the income tax consequences of transactions U.S. District Court, District of New such as stock redemptions, sales, acquisitions, reorganizations and sales to grantor trusts. He drafts Jersey, 2007 shareholders agreements and operating agreements for ventures involving unrelated individuals, as well as PROFESSIONAL AFFILIATIONS for family business enterprises which require provisions to facilitate estate planning and obtain creditor protection. He assists clients in controversies with tax authorities through the submission of protests and American Bar Association, Section of appeals of tax assessments. Mr. Christofides has counseled clients at all stages of the business life cycle. Taxation He prepares plans for business transactions and the attendant agreements and filings. He routinely is New Jersey State Bar Association, Real called upon to prepare opinion letters regarding transactions, and when necessary, obtains formal guidance Property, Trusts & Estates Section, from regulatory authorities through private ruling requests. Taxation Section New York State Bar Association, Mr. Christofides engages in a comprehensive Trusts and Estates practice. He advises clients on a range Taxation Section of topics, including lifetime gifting, testamentary planning and transactions designed to facilitate tax efficient inter-generational wealth transfer. He prepares the necessary documents to achieve clients’ goals, including wills, revocable trusts, and irrevocable trusts, designed to address estate, gift and generation- skipping transfer tax objectives. He also prepares advanced directives for health care and powers of attorney. He regularly prepares estate and gift tax returns.

Mr. Christofides advises fiduciaries and beneficiaries of estates and trusts regarding administration and litigation issues. He has provided valuable assistance in a number of matters in New Jersey and New York Probate Courts. Mr. Christofides is familiar with issues relevant to estate disputes, including undue influence claims, contracts to enter into testamentary dispositions and objections to fiduciary conduct.

Mr. Christofides earned his advanced legal degree, the LL.M (in Taxation), from the New York University School of Law. He is a graduate of Rutgers University School of Law, Newark, where he was a Dean’s Merit Scholar, a recipient of the Aaron Lasser and Honorable Lawrence L. Lasser Scholarship and a member of the Rutgers Federal Taxation Clinic. As a member of the Rutgers Federal Taxation Clinic, he represented clients in disputes with the Internal Revenue Service. Prior to law school, Mr. Christofides attended Rutgers College, Rutgers University, where he completed his undergraduate studies in three years and graduated first in the class of 2004. During his time at Rutgers College, he was named a Henry Rutgers Scholar and an Edward McNall Burns Scholar. Appointments included undergraduate associate of the Eagleton Institute of Politics and an undergraduate teaching assistant of Political Science.

Honors/Awards

• Listed in Super Lawyers – Rising Stars, 2013-2014 *

News & Events

FIRM ANNOUNCEMENTS

Bressler, Amery & Ross Attorneys Selected as 2014 New Jersey Rising Stars

Bressler, Amery & Ross Attorneys Selected as 2013 New Jersey Rising Stars

Bressler Welcomes Glenn J. Christofides to its New Jersey Office

SPEAKING ENGAGEMENTS

New Jersey Bridge The Gap, Basic Estate Planning

PUBLICATIONS

Opportunities and Pitfalls When Doing Business in Pass-Through Entities New Jersey Law Journal, September 19, 2011

ALERTS

Taxation and Trusts & Estate Alert Labor & Employment Law Alert, January 16, 2012 Trusts and Estates Alert, February 24, 2011

http://www.bressler.com/AttorneyProfile/GlennChristofides-122.htm 3/18/2014 Attorney At Law | Glenn Christofides | Bressler, Amery, & Ross Page 2 of 2

HORIZONS

http://www.bressler.com/AttorneyProfile/GlennChristofides-122.htm 3/18/2014

BASIC ESTATE PLANNING

RONNIE ANN POWELL, ESQ. GLENN J. CHRISTOFIDES, ESQ.

Bressler, Amery & Ross, P.C. www.bressler.com

325 Columbia Turnpike Florham Park, NJ 07932 (973) 514-1200 ----- 17 State Street New York, NY 10004 (212) 425-9300

I. OVERVIEW.

A. State law, rather than Federal law, governs property succession at death.

B. In New York, the laws which set forth the intestate distribution scheme, the requirements of a valid Will, rules of construction and interpretation, and the methods of estate administration are found in the New York Estate, Powers and Trusts Law (EPTL) and the Surrogate’s Court Procedure Act (SCPA).

C. Probate Transfers – Controlled by provisions of decedent’s Will or by New York law.

1. Intestate succession. If a decedent dies without a Will, or if a decedent’s Will does not dispose of all of the decedent’s probate assets, New York law directs disposition of such property by intestacy. See Article 4 of the EPTL.

2. Transfers by Will. If a decedent dies with a valid Will, assets are disposed of as provided thereunder.

D. Non-Probate Transfers – Controlled by contract or title ownership.

1. Joint tenancies and tenancies by the entirety. Examples include:

a. House owned by husband and wife as tenants by the entirety

b. Multi-party account with right of survivorship

2. Contracts (with a designated beneficiary other than the owner’s/decedent’s Estate). Examples include:

a. Life Insurance

b. Annuities

c. Retirement Plans

II. INFORMATION GATHERING.

A. Before the Initial Meeting. It is useful to gather information about the clients. This can be done by the clients completing an estate planning questionnaire on which the clients provide information about the their family, their assets and the ownership/registration of their assets. Some clients are overwhelmed by the whole process and do not feel comfortable with completing the questionnaire in advance of the meeting.

B. The Initial Meeting. The attorney’s goal is to put the clients at ease. Estate planning involves knowing personal affairs of and sensitive facts about the clients.

1 If the clients are not at ease, they might not disclose all relevant information, which is necessary for the attorney to draft an efficient estate plan.

The attorney should listen to the objectives of the clients. Some objectives are tax driven, some objectives are not.

Important information to obtain from the client includes the following:

• Name, citizenship, addresses, dates of birth and social security numbers of the clients, their children, their grandchildren and any other beneficiaries of the clients’ estate plans;

• Current marital status of clients, children and grandchildren;

• Prior marriages, including any rights or obligations pursuant to any divorce or property settlement agreement;

• Prior transfers, including whether any gift tax returns were filed;

• Any special situations or health concern of the clients, their children and any other beneficiary;

• Names and contact information of financial advisors;

• Whether the clients expect to receive any large sums in the foreseeable future, by inheritance or through employment;

• Information on employment, including all types of compensation;

• List of all assets with current values and details regarding the registration and the beneficiaries designated (if applicable);

• List of all liabilities; and

• Current estate planning documents and any premarital agreement.

C. The Retainer Agreement (Engagement Letter). After meeting with the clients, the attorney should send the clients a retainer agreement setting forth the scope of the engagement, who will perform the services and the billing information. Estate plans can be done on an hourly fee, in which case the retainer agreement should list the hourly rates of the individuals who will perform the services. Estate plans can also be done on a fixed or flat fee. To determine the amount to charge if using a fixed fee, the attorney must project the anticipated hours it will take the persons performing the services to complete the job.

2 III. NON-TAX BENEFITS OF AN ESTATE PLAN.

A. Control over Disposition. Without a Will, the intestacy laws of the State of the decedent’s residence will determine who receives the decedent’s property. Under New York law, if you are survived by a spouse, your spouse will receive your entire estate only if you are not survived by any issue (descendants). If you are survived by a spouse and issue, your spouse will get $50,000 plus one-half of the residue of your estate, and your issue will receive the balance of the residue of your estate. This is not the choice that most individuals would make voluntarily.

B. Guardians for Minor Children.

1. Without a Will, you cannot name a guardian for your minor children. In such a case, a Court would determine who will be the guardian.

2. With a Will, you have control over the person you want to raise and care for your children.

C. Trusts for Minor Children.

1. Timing for receipt of property.

2. Spendthrift protection.

D. Choice of Executor. Under a Will, you can choose the Executor, the person who is responsible for administering the estate. The Executor’s duties include:

1. Marshaling assets - The assets belonging to the estate will be transferred into the name of the estate.

2. Payments of debts and expenses - Any outstanding debts will be paid by the Executor from the assets of the estate.

3. Distribution of assets - After all liabilities and taxes have been paid, the estate assets will be distributed in accordance with the terms of the Will.

E. Choice of Trustee. Under a Will, you can choose the Trustee, the person who is responsible for managing the assets for your children until your children reach a certain age.

IV. KEY TAX RULES.

A. Gift Tax Exemption. For 2014, each individual is allowed to transfer during lifetime up to $5,340,000 ($5,000,000 indexed for inflation) of assets without incurring Federal gift tax.

The 2014 Federal gift tax rate for gifts over the exemption is 40%.

3 There is no New York gift tax.

B. Federal Estate. The unified credit shields property from estate tax, regardless of to whom such property passes. The amount shielded by the unified credit is known as the “applicable exclusion.” For 2014, the Federal applicable exclusion amount is $5,340,000 ($5,000,000 indexed for inflation).

The top 2013 Federal estate tax rate is 40%.

C. New York Estate Tax. New York enacted legislation which freezes the applicable exclusion amount for New York estate tax at $1,000,000. Therefore, a taxable estate of $1,500,000 will not be subject to Federal estate tax, but may be subject to New York estate tax of approximately $65,000. Thus, careful estate planning must be done to maximize estate tax savings while minimizing the estate tax due to the State of New York.

The New York estate tax rate is a progressive rate that maxes out at 16% for an estate in excess of $10,040,000.

D. Marital Deduction. Qualifying transfers between spouses are effectively exempt from Federal estate and gift tax through the use of the marital deduction. However, if the spouse is not a U.S. citizen (i.e. resident or non-resident alien), special rules apply.

E. Generation-Skipping Transfer Tax. The Generation-Skipping Transfer (GST) tax is a separate tax imposed when an individual transfers property to someone two or more generations below the generation of the transferor (e.g., a grandfather leaves assets to his grandchildren rather than to his children). For 2014, the GST tax exemption is $5,340,000 ($5,000,000 indexed for inflation).

There are additional exceptions and special rules. This technique may be used to save estate taxes at the death of children.

F. Annual Exclusion Gifts. The annual exclusion provides an individual with the opportunity to gift to any number of people the annual exclusion amount (currently $14,000) each year without making a taxable gift.

The donee is not required to pay income taxes on the amount of the gift. See I.R.C. §102.

In addition to his or her own annual exclusion, an individual may use his or her spouse’s annual exclusion with the spouse’s consent.

G. School Tuition and Medical Expenses. Under Internal Revenue Code §2503(e), a gift tax exclusion exists for gifts made on behalf of an individual for educational or medical expenses provided that such payments are made directly to the educational institution or the medical provider.

4 V. ESTATE PLANNING DOCUMENTS.

A. Will. Consideration should be given to non-tax concerns, as well as appropriate tax planning. Non-tax issues would include naming guardians for minor children, distribution of assets outright or in trusts for beneficiaries, and the appointment of the fiduciaries who will handle the estate and trust administration. Attention should also be paid to asset equalization and beneficiary designations.

The Will only governs the disposition of probate assets. The probate estate includes assets that are owned a client in his or her individual name, assets that are owned by a client as a tenant in common without any right of survivorship, and assets that are payable to the client’s estate upon his or her death.

A Will can incorporate tax planning through the inclusion of trusts (see below).

B. Health Care Proxy (Living Will). The purpose of a Health Care Proxy and Living Will is primarily for an individual to express his or her desires as to whether so-called “heroic measures” (e.g., CPR, mechanical respiration, administration of food or water) should be undertaken to keep him or her alive. In addition, an individual may designate some other person to make health care decisions for him or her in the event that he or she is unable to do so. These powers include such decisions as to what hospital and what doctor should treat the individual, whether certain procedures should or should not be undertaken, and whether “heroic measures” should be administered.

1. Designation of Health Care Agent. A Designation enables you to designate the individual to make health care decisions on your behalf if you are not able to do so.

2. Living Will. Under your Living Will, you can indicate under what circumstances you do not want any heroic measures taken.

3. Health Insurance Portability and Accountability Act of 1996 (HIPAA).

a. Limits the access to health records.

b. Federal protection for privacy of records.

c. Language is included in the Living Will to ensure that the individual named as Health Care Agent may have access to your medical records.

4. Guardian of the Person.

C. Power of Attorney. The purpose of this document is to enable another person to take all actions (primarily financially related) that the individual would be permitted to take, in order to avoid the delay and cost involved in having a guardian appointed. There are two types of Powers of Attorney – Durable and Springing.

5 1. Designation of Attorney-in-Fact. A Power of Attorney enables you to name an agent to handle your financial affairs.

2. Guardian of the Property/Conservator.

D. Beneficiary Designation Forms. A client may have assets that pass to beneficiaries by beneficiary designation forms. These assets may include life insurance, retirement plans and annuities. It is important for the attorney to review the beneficiaries the client has designated to assure that such designations are consistent with the client’s overall estate plan. If they are not, the beneficiary designations should be updated.

E. Trusts. Trusts are legal entities created under State law. A trust can be created by a Will (called a testamentary trust) or by a separate document (called an inter vivos or lifetime trust).

1. Revocable Trusts. A Revocable Trust is usually a trust for the benefit of the Grantor. It often provides for the Grantor’s needs during the Grantor’s life, then provides for the disposition of its assets after the Grantor’s death. The Grantor may amend or revoke the Revocable Trust at any time. A transfer of assets to a Revocable Trust does not provide additional savings of estate taxes. A client may create a Revocable Trust for the following reasons:

a. Unlike a Will, a Revocable Trust is not a public document.

b. Assets held in a Revocable Trust avoid probate and ancillary probate.

c. Under most circumstances, the Surrogate’s Court does not govern the administration of a Revocable Trust.

d. During the life of the Grantor, a Revocable Trust can be easily amended with fewer formalities than a Will.

2. Irrevocable Trusts. An Irrevocable Trust is usually a trust for the benefit of any one or more persons, other than the Grantor. The Grantor may not revoke an Irrevocable Trust. Irrevocable Trusts could result in a reduction of estate taxes at the Grantor’s death.

3. By-Pass Trusts (also called Family Trusts or Credit Shelter Trusts). A By-Pass Trust can be created under a Will or by another testamentary document. With proper structuring in an estate plan, a husband and wife can pass a combined value of $10,680,000 (in 2014 – adjusted for inflation) without incurring any Federal estate tax, and can pass $2,000,000 without incurring any New York estate tax. Some drafting techniques for By-Pass Trusts include:

a. The testamentary document should provide that assets with a total value of not more than the applicable exclusion amount in effect for the year of death (less the amount of any taxable gifts during life) pass into the “By-Pass Trust.” 6

b. The dispositive provisions of the By-Pass Trust may provide for income and principal to be paid from the By-Pass Trust to the surviving spouse (and issue) at the discretion of the Trustee during the surviving spouse’s lifetime.

c. Alternatively, the By-Pass Trust provisions may provide for the mandatory payment of income and the discretionary payment of principal to be paid to the surviving spouse.

d. The surviving spouse may have a limited power of appointment over the trust assets.

e. The assets in the By-Pass Trust are not included in the surviving spouse’s estate at the surviving spouse’s subsequent death.

f. Upon the surviving spouse’s death, the balance of the By- Pass Trust is payable to the decedent’s children or other beneficiaries (either outright or in trust).

g. A married couple may pass twice the applicable exclusion amount to their children (or any other beneficiaries) free of estate tax, while enabling the surviving spouse to have the benefit of the assets through the By-Pass Trust during his or her lifetime.

h. Asset ownership must be reviewed and assets retitled, if necessary. Each spouse should own, in his or her individual name, assets with the value equal to the Federal and/or New York applicable exclusion amount that will pass under his or her Will.

4. Disclaimer Trusts. A Disclaimer Trust can be created under a Will or by another testamentary document, such as a Revocable Trust. A disclaimer is a refusal to accept property or interest in property.

Federal Law. A qualified disclaimer is permitted under the Internal Revenue Code pursuant to §2518. The required elements of a qualified disclaimer include:

• The disclaimer must be made in writing;

• The disclaimer must be received by the transferor of the interest no later than nine months from the date on which the transfer creating the interest is made (or, in the case of an individual under the age of 21 years, nine months after the disclaimant reaches the age of 21 years);

• The disclaimant may not accept the interest or any or any benefits of the disclaimed property; must identify the property, or interest in property that is being disclaimed; and

7 • As a result of the disclaimer, the interest must pass without any direction on the part of the person making the disclaimer.

New York Law. A disclaimer (called a renunciation in New York) is permitted under New York law pursuant to EPTL §2-1.11. The New York statute includes many of the same elements as §2518.

Drafting Techniques for Disclaimer Trusts:

a. The testamentary document will provide that the residuary estate (the balance of the estate after the payment of all debts and administration expenses, and any specific bequests) pass outright to the surviving spouse.

b. The surviving spouse has the ability to “disclaim” all or a portion of assets distributed to the spouse.

c. The surviving spouse will disclaim an amount not greater than the decedent’s available Federal applicable exclusion amount.

d. The amount disclaimed by the surviving spouse is held in a “Disclaimer Trust” for the surviving spouse’s benefit.

e. The provisions of the Disclaimer Trust can be similar to those of a By-Pass Trust. However, the surviving spouse cannot have any power to appoint the assets of the Disclaimer Trust.

f. Disclaimer Trusts provide maximum flexibility to the surviving spouse, who can determine at the first spouse’s death how much to shield from Federal and New York estate tax.

5. QTIP Trusts. A QTIP Trust can be created under a Will or by another testamentary document. Qualifying transfers between spouses are exempt form Federal and State estate and gift tax through the use of the marital deduction. See IRC §2056. Assets qualifying for the marital deduction may pass from the first spouse to the surviving spouse outright or in a qualifying trust.

IRC §2056(b)(7) allows property which is held in trust for the surviving spouse, rather than distributed to the surviving spouse outright, to qualify for the unlimited marital deduction against the Federal estate tax.

For a trust to qualify as a QTIP Trust under IRC §2056(b)(7), the following requirements must be met:

• Property must “pass” from the deceased spouse to the surviving spouse.

• The surviving spouse must be entitled to all of the income from the entire property interest (or a specific portion thereof) payable at least annually for life. 8

• No power may be held by any person (including the surviving spouse) to appoint any part of the property to any person other than the surviving spouse during the surviving spouse’s life.

• The Executor must elect that the interest be treated as Qualified Terminable Interest Property (see below).

Under the Code, the surviving spouse must have a qualifying income interest for life. There is no requirement for principal to be distributed to the surviving spouse.

The surviving spouse can require that the Trustee invest the property held in the QTIP Trust in income producing assets.

The surviving spouse may have a limited power of appointment over the trust assets.

The assets remaining in the QTIP Trust at the death of the surviving spouse are included in the surviving spouse’s gross estate.

The QTIP election is made on a timely filed Federal Estate Tax Return (Form 706) by the Executor or personal representative of the estate. The Executor or personal representative may make a partial QTIP election. If no Federal Estate Tax Return is required to be filed, the QTIP election may be made on a timely filed New York estate tax return.

6. Qualified Domestic Trusts. If a surviving spouse is not a citizen of the United States, special rules apply regarding the availability of the marital deduction. See IRC Section 2056A. Assets many only be held in a QTIP Trust for a surviving spouse who is not a citizen of the United States, and must also qualify as a Qualified Domestic Trust (“QDOT”) under Code Section 2056A, in order to qualify for the marital deduction.

In order to qualify as a QDOT, the following requirements must be met:

a. At least one Trustee must be a United States citizen or a United States bank.

i. If the QDOT has assets equal to or less than $2,000,000, no more than 35% of the value can be in real property outside the United States, unless: • The Trustee is a United States bank;

• The individual United States Trustee must furnish a bond for 65% of the value of the QDOT assets at the Transferor's demise; or

9 • The individual United States Trustee must furnish an irrevocable letter of credit to the United States government for 65% of the value.

ii. If the QDOT holds more than $2,000,000:

• The Trustee must be a United States bank;

• The individual United States Trustee must furnish a bond for 65% of the value of the QDOT assets at the Transferor’s demise; or

• The individual United States Trustee must furnish an irrevocable letter of credit to the United States government for 65% of the value of the trust.

b. The Executor of the decedent’s estate must make an irrevocable QDOT election to qualify the marital deduction on the decedent’s timely filed Federal Estate Tax Return (Form 706).

7. Irrevocable Life Insurance Trusts. An Irrevocable Life Insurance Trust (“ILIT”) is an inter vivos trust a client (the Grantor) will create to remove life insurance from the Grantor’s taxable estate. Any insurance policies on the Grantor’s life which are obtained directly by the Trustee of the ILIT will not be included in the Grantor’s taxable estate. Any insurance on the Grantor’s life which is transferred to the ILIT will be excluded from the Grantor’s estate three years from the date of transfer.

The provisions of the ILIT can be similar to those of a By-Pass Trust, providing for the surviving spouse and children.

8. Qualified Personal Residence Trusts. A Qualified Personal Residence Trust (“QPRT”) is an inter vivos trust a client (the Grantor) will create to remove a primary residence and/or vacation home from the Grantor’s taxable estate. The Grantor will transfer all or a percentage of the Grantor’s undivided interest in the property to the QPRT. The trust will have a term of year. The Grantor is usually the Trustee of the QPRT during the QPRT term. The Grantor has the right to occupy the residence transferred to the QPRT during the term of the trust.

The gift tax value of the Grantor’s gift may be reduced by a non-marketability discount if the residence is a fractional interest in a residence. The gift tax value of the transfer to the QPRT is less than its true value because of the retention by the Grantor of the right to occupy the property.

After the term of the trust ends, the property can be distributed to children or other beneficiaries, outright or in continuing trusts. If the Grantor desires to occupy the property after the term ends, the Grantor can rent the property from the beneficiaries for fair rental value. Rental payments further reduce the Grantor’s estate.

10 The value of the property held in the QPRT is includible in the Grantor’s estate should the Grantor die during the term of the QPRT. In such a case, there is a full restoration of the applicable exclusion amount which had been applied to the initial transfer (gift) to the QPRT.

9. Grantor Retained Annuity Trusts. A Grantor Retained Annuity Trust (“GRAT”) is an inter vivos trust a client (the Grantor) will create to remove asset appreciation, usually from shares of stock, from the Grantor’s taxable estate. The assets that are transferred to the GRAT should be appreciating assets. The Grantor will transfer assets to the GRAT. The trust will have a term of years. During the term of the trust, the Grantor will receive an annuity, at least annually. The Grantor is usually the Trustee of the GRAT during the GRAT term.

The gift tax value of the transfer to the GRAT is less than its true value because of the annuity payments to the Grantor.

After the term of the trust ends, the property can be distributed to children or other beneficiaries, outright or in continuing trusts.

The value of the property held in the GRAT is includible in the Grantor’s estate should the Grantor die during the term of the GRAT.

10. Special Needs Trusts. If a client has a disabled child or other beneficiary, it may be necessary to provide that child’s or beneficiary’s share of the client’s estate be held in a Special Needs Trust. A Special Needs Trust may be created in a separate document or under a Will. The Special Needs Trust is important because it will allow the client to provide for his or her disabled child or other beneficiary without risking disqualification from any governmental benefits the child or other beneficiary is currently receiving or may receive in the future. The assets in a Special Needs Trust cannot be used to support the disabled child or other beneficiary. Rather, it can only be used to supplement the disabled child’s or other beneficiary’s lifestyle.

VI. Special Considerations.

A. Same-Sex Marriage. The Marriage Equality Act was passed by the New York State Legislature on July 24, 2011. Under the Act, all marriages (same-sex couples and different-sex couples) are treated equally under New York law. This includes, among other things, the unlimited marital deduction (for New York estate tax purposes) for assets passing between spouses.

B. United States v. Windsor. Prior to the Windsor decision, New York’s marriage law had no effect on federal tax determinations. Same sex couples were ineligible for the federal unlimited marital deduction pursuant to the provisions of DOMA. Subsequent to the 2013 Windsor decision, same sex couples are entitled to the full New York and federal marital deductions.

C. Elective Share. Under Article 5 of the EPTL, New York law provides that the surviving spouse of a New York domiciled decedent has a personal right to elect 11 against the decedent’s estate. This is called an elective share. EPTL §5-1.1-A provides that for a decedent dying on or after September 1, 1992, an elective share is an amount equal to the greater of (i) $50,000; and (ii) one-third of the decedent’s net estate.

The right to an elective share does not exist in cases where the surviving spouse waived his or her rights in a document, such as a valid prenuptial or postnuptial agreement, or under any other waiver of elective share rights document.

An attorney should be aware of this right when drafting a client’s documents if the client is married and is not providing for his or her spouse.

Your Law Firm’s Internet Presence 4 Andrew Cabasso, Esq.

Andrew Cabasso (631) 606-0052 | [email protected]

Experience

JurisPage New York, NY, January 2013 – Present Founder Provide internet marketing services to small and medium-sized law firms, including mobile-ready website design, SEO, Adwords campaign management. Publish a blog at jurispage.com/blog covering topics related to law firm website design, search engine optimization, internet marketing, legal tech startups, and law practice management.

Aventura Technologies Hauppauge, NY, October 2012 – June 2013 In-House Counsel Managed day-to-day corporate legal affairs. Selected and supervised outside counsel. Drafted pleadings and motions in commercial litigation cases. Reviewed and revised contracts with technological partners and vendors. Managed company’s IP portfolio. Acquired non-resident immigration visa for employee.

Entertainment Software Rating Board (ESRB) New York, NY, August 2011 – December 2011 Privacy Online Legal Intern Advised member videogame companies on online privacy issues. Researched, analyzed and reported COPPA compliance recommendations for Privacy Online program members. Drafted cease and desist letters to protect organization’s intellectual property.

Media Coalition New York, NY, Summer 2011 First Amendment Legal Intern Drafted and edited litigation documents in First Amendment cases seeking to invalidate unconstitutional statutes. Authored complaint, declarations, motions for summary judgment, and supporting briefs for cases in three states. Advised clients on state legislation, how it affected their rights, and whether to pursue litigation.

Lincoln Square Legal Services, Inc. New York, NY, January 2011 – May 2011 Sammuelson-Glushko Intellectual Property and Information Law Legal Intern Drafted amicus brief for the Second Circuit in Viacom v. YouTube. Researched and counseled clients on various intellectual property matters including copyright, trademark, and Internet privacy. Outlined arguments for a successful motion to quash a subpoena in an Internet privacy case.

Grameen America New York, NY, Summer 2010 Legal Intern Facilitated expansion of microfinance organization with in-depth analysis of lending laws in several states. Authored grant applications and policy papers on immigration and welfare law reform. Created framework for a new internship program that would lower operating costs significantly. Reviewed documents and contracts including commercial co-venture agreements.

IPwebTV, Inc. Hauppauge, NY, 2007 – 2008 Founder / CEO Founded and incorporated IPwebTV, a content-delivery technology company. Managed daily operations domestically and internationally while attending school. Contracted independent sales representative firms covering 41 states. Sold product to CNN, Turner, and DirecTV in the first year of business. Designed distance learning application for sale to universities and institutions. Page 1 of 2

Selected Publications and Speaking Engagements

Tech Tips for Attorneys: Your Firm’s Internet Presence, Live CLE (January 2014)

JurisPage Blog, jurispage.com/blog (2013-Present)

Get New Law Firm Clients, Slideshare Presentation slideshare.net/jurispage (August 2013)

Search Engine Optimization for Lawyers: Utilize SEO to Get New Clients Today, eBook (February 2013)

Piercing Pennoyer with the Sword of a Thousand Truths: Jurisdictional Issues in the Virtual World, 22 Fordham Intell. Prop. Media & Ent. L. J. 383 (2012)

Education

Fordham University School of Law, Juris Doctor May 2012 Leitner Scholar, Archibald R. Murray Public Service Award summa cum laude, International Law Journal Business and Articles Editor, Research Assistant to Professor Olivier Sylvain

Northeastern University, Bachelor of Science in Business Administration, Major in Entrepreneurship May 2009 Honors: summa cum laude, Northeastern University’s 100 Most Influential Seniors, Honors Program Student of the Year 2009

Bar Admissions

New York, New Jersey, District Court of New Jersey

Page 2 of 2

Your Law Firm’s Internet Presence CLE Outline By Andrew Cabasso, JurisPage

1. Overview a. Email b. Social Media c. Website d. SEO e. Internet Marketing (Google Adwords) f. Ethics 2. Email a. Avoiding using @aol.com (or Hotmail, Yahoo) email addresses for correspondence i. Unprofessional 1. Doesn’t represent your firm’s brand well 2. Other firms from large-sized firms to solo practitioners are using @yourlawfirmname.com email addresses 3. Client may wonder if their confidential emails are going to your personal email account ii. Outdated 1. Suggests unfamiliarity with Internet and current technology b. Get a domain-specific email address i. Buy a domain through a registrar if you don’t have one yet 1. Enom.com, Nameacheap.com, Godaddy.com are examples 2. You can even get coupon codes (Retailmenot.com) to buy the names at a further discount ii. Two ways of getting your email set up – paid or free iii. Paid 1. Google Apps (google.com/apps) a. $5 per user per month b. Can send emails @yourfirm.com using Gmail’s interface and platform 2. Zoho Mail (zoho.com) a. Alternative to Google Apps - $2.50 per month b. Free for up to 5 users c. You’ll likely be less familiar with it than Google, but it does essentially the same things 3. Mail servers in your office a. Gives you complete control over your email, allowing you to have backups and create as many user accounts as you want for no additional charge (great for larger firms) i. Most practical for mid-size and large firms ii. Recommended for an office with 20+ people b. Requires technical knowledge (an IT person on-call) c. Pricey to purchase and set up servers d. Likely the most expensive option i. Even if you are quoted a price for getting the server up and running, it will need to be maintained and it will break at some point e. Doesn’t guarantee security f. Ultimately, not practical for solos and small firms iv. Free 1. Create a free account at Zoho (for 5 people at your firm or less) 2. Forward all your Zoho email to your email platform of choice 3. Use your email platform’s “send mail as” option to be able to send mail from your email platform as “@yourfirm.com” v. Mechanics 1. If cloud-based service: a. Sign up for an account online b. Follow their instructions for changing the “MX Records” c. Once good to go, add other user accounts d. Follow instructions to configure your mobile devices 2. If hardware-based: a. Find a recommended IT person who can create and set up email servers for your firm b. Get a quote, call another guy, get a second quote c. Equipment does not need to be expensive for a mail server (less than $1,000 is possible, make sure you specify that you only need it for email hosting) d. If you have other servers, for example, Quickbooks, or data servers for client data, don’t try to add email to that server to save some money i. Emails get viruses, email servers can get viruses – if your client data is on your email server, you’re putting your confidential data at risk 3. Social media a. Why i. Gets new clients ii. Good for SEO b. Strategy i. Use it or don’t, but don’t half-use it c. Some ethics issues to consider (will touch upon later), but they should not scare you away from social media d. Platforms i. Facebook ii. Twitter 1. Tweet at people in your practice area / field 2. Engage in conversation about your area 3. Post links to new content 4. Ask questions 5. Answer questions iii. LinkedIn 1. Share content with your groups 2. Network with group members 3. Find friends of friends who may need your services iv. Quora 1. Q&A platform 2. Answer questions that people post 3. Have your blog article answer a question and link to it v. Esqspot 1. New site for attorneys to interact 2. Complements in-person meeting 3. Based in NYC vi. Google+ 1. Google is partial to Google+ in terms of SEO value 2. Better visibility for SEO with posting to G+ than other sites 3. Can get G+ “authorship” so that your picture appears alongside your blog posts in Google search results vii. Hootsuite 1. Social media management platform 2. One location to send out messages on different social media platforms so you don’t need to log in to each one separately 3. Can schedule social media posts and/or blast content to several platforms simultaneously 4. Saves time 4. Your Website a. Why have one? i. It’s your firm’s brand ii. It validates you to prospective clients – both from referrals and from search engine traffic 1. Referrals will most likely look your firm up online 2. Without a web presence, referrals may go to other firms 3. Website validates your firm to all prospective clients, even if someone told the client they should use your firm iii. Not having one suggests your firm is not tech-savvy, current iv. It’s a source for potential clients 1. If you’re marketing via print, radio, or TV, you should be marketing online 2. Quantitative results and analytics to track how many clients hire your firm per dollar spent in online marketing a. You can see how effective your ad dollars are, and you can specifically target your intended audience b. Your website’s purpose i. Provide information to prospective clients to get them to trust your firm and call you rather than another firm 1. That’s it 2. Your website’s goal is to get clients comfortable with your firm to get off the website and onto the phone to hire you, and not go with another firm 3. Your website must be client-focused, not made to please you c. Website elements i. Domain (via registrar like GoDaddy) ii. Hosting iii. Content management system (CMS like Wordpress) iv. Website design d. Types of websites i. D-I-Y builders 1. E.g. GoDaddy, 1&1, Wix, Weebly 2. They combine hosting and CMS, but you’re locked into their interface and cannot take your site with you if you want to change service providers 3. Ethics issues a. You have to know the ethics issues yourself, going in b. Site builders won’t offer you guidance on ethics 4. Learning curve to using a site builder, even with a visual site- builder, it often takes many hours to get a site layout 5. Professionalism a. Site-builder sites can look like cheap cookie-cutter sites b. Make sure your site at least looks like you spent some money on it ii. Web developers 1. Find some with legal industry experience 2. Competition? a. Make sure they’re not servicing a client in the same practice area and town as you if you’re doing internet marketing or SEO b. Competing against yourself can be especially costly e. Must-have website elements i. Elements 1. Mobile-ready site 2. Verdicts / settlements / testimonials (social proof) 3. Contact 4. Bios 5. Very specific practice area pages 6. Professional-looking design/layout ii. Mobile-ready site 1. Up to 40% of web traffic is mobile-based 2. Non-mobile website designs mean less traffic and fewer conversions 3. Google's algorithm now penalizes websites that aren't "responsive" - easily viewable in mobile devices 4. To tell if your site is responsive, view your website in your favorite browser, now make the browser window smaller (but not minimized). Drag the browser size with your cursor to make the browser smaller and smaller. If it is responsive, your site shouldn't lose its content when you make the window narrower. You should never have to scroll horizontally if your site is responsive. 5. Alternative – iphonetester.com 6. If your site isn't responsive, talk to your web designer or, if you are using a D-I-Y website builder, consider alternative services 7. Can be done with “Responsive” or “Mobile-ready (optimized)” layouts iii. Testimonials / verdicts / settlements 1. Social proof 2. People want to hire people they know will do a good job 3. If someone recommends or vouches for you, it alleviates hesitation 4. The client needs to know you’re capable iv. Contact 1. Where on your website does it tell someone to contact you? a. A contact form on a contact page alone is insufficient 2. There should be a contact form embedded on every page a. Either on the side (called the “sidebar”) or the bottom (“footer”) of each page b. If someone stumbles upon a page on your firm’s website, they should easily be able to reach you – the more clicks you require before someone can reach you, the larger drop-off there will be i. E.g. if the user clicks on your firm’s website, then has to go to a contact page to find your phone number, there’s a chance you’re losing potential clients 3. Your firm’s phone number should be at the top of every page (in the “header”) a. This is a bit technical, but your phone number in the header should not be an image, but rather should be text i. You can tell if it’s text if you can easily highlight the phone number, copy it, and paste it into a Word document ii. It should be text rather than an image because search engines like Google cannot “read” images. They only read text v. Bios 1. Practice areas 2. Experience 3. Typical cases 4. Settlements / verdicts vi. Practice areas 1. Be specific, for SEO and client interest 2. Clients need to know that you can handle their exact, specific matter 3. You won’t rank well in Google with a single practice area page f. Layout i. Your site is your business card g. A second website? i. Useful for class actions ii. Direct visitors specifically to a website discussing their type of matter iii. Great for firms with varied practice areas, allowing you to focus on one particular type of client iv. Defendants don’t necessarily want to know that their potential law firm also takes cases for plaintiffs that might sue people like the defendants h. Landing Pages i. These are the pages people “land on” to find your firm 1. E.g. Most common landing page is your homepage 2. Better than your homepage would be a specific practice area- related landing page that speaks to what keywords the visitor searched for in Google / Bing to reach your website ii. For firms advertising in Google Adwords, landing pages are necessary 1. Does your homepage provide relevant content for the visitor? 2. What type of ad did the person click on? a. The landing page should speak to the ad 5. SEO a. Overview i. Difference between SEO and Internet marketing 1. Google search vs. ad box ii. Using your knowledge of Google’s algorithm to ensure your website is what people find 1. PageRank overview 2. “Backlinks” a. More high-quality links to your website = better visibility b. Backlinks from .edu and .gov websites get better results iii. Elements of SEO 1. Keywords 2. Backlinks 3. Local SEO 4. On-page SEO b. Keywords i. Basis of SEO ii. “Lawyer vs. Attorney” c. Backlinks i. Overview 1. Blogging 2. Guest posting 3. Social media 4. Directories 5. Forum comments 6. RSS 7. Press releases ii. Blogging 1. Be an authority 2. Differentiate yourself 3. Networking and referrals 4. Hurdles to blogging a. Busy i. Outsource b. Unsure what to write about i. New cases ii. Recent laws iii. Recent controversies iv. Information on your practice area for the non- lawyer / potential client 5. Tips a. Current b. Consistent c. Write interesting, readable content iii. Guest posting 1. Reach out to other blogs with high PageRank 2. Pitch 3. Byline – link to your blog iv. Social media 1. Either use social media sites or don’t, but don’t sort-of use one 2. Low usage is not worth it; you’d be better off with no presence 3. LinkedIn may be good for your networks 4. Twitter –reach out, discuss your practice area with other attorneys, authorities in the field v. Lawyer directories 1. Free a. Avvo 2. Paid a. Superlawyers b. Martindale / Lawyers.com / Lexis c. Findlaw vi. Forum comments vii. RSS 1. Feedburner.com lets you create a feed for your website that people can follow to see when you have new content viii. Press Releases 1. Overview a. Make announcements, get exposure b. Press releases rank well 2. Sites a. Prlog.com b. Prweb.com d. Local SEO i. Local directory placement 1. Google Places 2. Getlisted.org 3. Yelp.com a. Yelp can be positive and negative ii. Tips 1. Stay consistent e. On-site SEO i. Sitemap submission 1. Through Google Webmaster Tools ii. Page title 1. Keyword focus iii. Meta description iv. Headings -

tags v. Alt tags vi. Image names vii. Anchor text viii. Privacy policy ix. ToS f. SEO Tools i. Google Analytics ii. Google Webmaster Tools iii. Google Keyword Tool iv. Feedburner v. PageRank Checker vi. Keyword Position Tool g. Implementation i. D-I-Y 1. To-do checklist every week/month ii. SEO co. 1. Get referrals 2. See what they’ve done for companies other than themselves a. Often SEOs will show you that they rank well for themselves, but not show customers 6. Internet Marketing a. Overview i. Also called PPC or pay-per-click ii. Google Adwords ads iii. What is Adwords 1. Ad boxes on top or right side of search results 2. Placement is determined by bidding 3. Each click costs you b. Terminology i. CTR, PPC, CPC, conversion, Adsense ii. Clicks vs. impressions c. Steps i. Create account ii. Create campaign 1. Specify region a. Don’t advertise out-of-state or states where you don’t practice b. Can specify state-wide or county-wide c. Can exclude areas 2. Ad networks a. Do search only b. Don’t select “Google Partners” i. Clickfraud issues iii. Choosing keywords with Google’s Keyword Planner Tool 1. Competitiveness a. More competitive keywords cost more 2. Keyword match type a. Phrase match b. Broad match c. Exact match iv. Creating ad box content 1. Gear it towards the specific keywords you’re using 2. This is your “advertisement” v. Billing 1. As-you-go or prepaid 2. Budget a. You can spend as much or as little as you want vi. Set up your home screen 1. Creating columns vii. Landing page creation viii. Conversion optimization ix. Analytics d. Maintenance i. Review keywords periodically 1. Some may not be on the first page if other people outbid you ii. Some ads can get flagged iii. See which ads perform well and create new, similar ads iv. Watch the CTR (clickthrough rate) v. First page cost vs. top page cost vi. Review alongside Google Analytics 7. Ethics a. Websites i. ATTORNEY ADVERTISING 1. 7.1 (f) 2. “Prior results do not guarantee a similar outcome” 7.1(e) a. 7.1(e) ii. Creating an expectation 1. Cmt. 11 to 7.1 a. “Prior results do not guarantee a similar outcome” 2. Cmt. 12 to 7.1 a. Non-comparative characteristics are permissible statements even though not factually supported b. “Hard-working” “dedicated” = yes c. “Best” “hardest-working” = no d. “Big $$$” “We win big” = no – expectation iii. Place Attorney Advertising in the footer of each page iv. Place the word “disclaimer” with a link to a page where you mention that “prior results do not guarantee a similar outcome” b. Fake positive reviews (aka Astroturfing) i. Firms pose as other individuals to write positive reviews on sites like G+ and Yelp ii. Firms pose as other individuals to write negative reviews on competitors’ review pages iii. NY AG Schneiderman brought suit against 19 companies that offer fake review posts 1. NY AG press release: http://www.ag.ny.gov/press- release/ag-schneiderman-announces-agreement-19- companies-stop-writing-fake-online-reviews-and iv. Yelp CA suit (Yelp v. McMillan Law Group) 1. Yelp sues a San Diego law firm that had previously sued Yelp for coercion (the firm alleged that Yelp demanded the firm pay Yelp for favorable reviews) 2. Yelp alleged that the law firm’s employees and friends created Yelp profiles and provided fake positive reviews for the firm on Yelp 3. Yelp’s ToS prohibits this, the complaint alleges: a. Breach of contract b. Intentional interference with contract c. CA unfair competition d. CA false advertising 4. Article about the case: http://about.bloomberglaw.com/law- reports/yelp-sues-firm-that-sued-it-for-coercion-alleging- posting-of-fake-favorable-reviews/ 5. The complaint: http://about.bloomberglaw.com/files/2013/09/Yelp.pdf v. Relevant ethics rules 1. Model ABA Rule 7.1 a. Rule 7.1 prohibits making “a false or misleading communication about the lawyer or the lawyer’s services.” 2. Model ABA Rule 7.2 a. prohibits giving “anything of value to a person for recommending the lawyer’s services . . .” c. Specialties i. Yelp / LinkedIn ii. NYSBA Op 972 (6/2/13) iii. You can’t list “expertise” or “specialties”, but by the time the op was issued, LinkedIn removed them and replaced with “skills and expertise” which NYSBA specifically refused to comment on d. Blogs i. Advertising ethics issues 1. A blog is not an attorney advertisement unless the “primary purpose” is for the retention of the lawyer 2. NYSBA Opinion 967 (6/5/13) 3. “Advertisement” a. Any public or private communication made by or on behalf of a lawyer or law firm about the lawyer or law firm’s services, the primary purpose of which is for the retention of the lawyer or law firm 4. Hunter v. VA State Bar a. VA criminal defense lawyer had a blog where every post was about the firm b. No First Am. defense ii. Clients 1. Need written permission if discussing about an on-going matter 2. In re Pershek (2009) a. Public defender mentioned a client in a blog, tried to anonymize, did a bad job b. Anyone could have figured it out 3. Non-confidential information may still be embarrassing to the client iii. Stock photos 1. 7.1(c) 2. No fictionalization of a law firm without disclosure iv. Advertising 1. 7.1(q) a. “A lawyer may accept employment that results from participation in activities designed to educate the public to recognize legal problems, to make intelligent selection of counsel or to utilize available legal services.” 2. 7.1(r) a. Without affecting the right to accept employment, a lawyer may speak publicly or write for publication on legal topics so long as the lawyer does not undertake to give individual advice. 3. “Recognition of legal problems” (Cmt. 9 to 7.1) a. Lawyers should encourage and participate in educational and public-relations programs concerning the legal system, with particular reference to legal problems that frequently arise. A lawyer’s participation in an educational program is ordinarily not considered to be advertising because its primary purpose is to educate and inform rather than to attract clients. e. Domain names / URLs i. 7.5 (e) – Website URL 1. A lawyer or law firm may utilize a domain name for an internet web site that does not include the name of the lawyer or law firm provided: (1) all pages of the web site clearly and conspicuously include the actual name of the lawyer or law firm; (2) the lawyer or law firm in no way attempts to engage in the practice of law using the domain name; (3) the domain name does not imply an ability to obtain results in a matter; ii. Cmt. 2 to 7.5 1. Can always use your firm name or an abbrev. 2. Can use practice area (e.g. realestatelaw.com) a. Must have firm name on every page b. Can’t say “contact realestatelaw.com” unless firm name is included in the ad c. No implied results 3. E.g. no “win-your-case.com” iii. Formal Opinion 2003-01: Lawyers’ and Law Firms’ Selection and Advertising of Internet Domain Names 1. A lawyer or law firm may use a domain name that does not include or embody the firm’s name or that of any individual lawyer, under certain conditions: the web site bearing the domain name must clearly and conspicuously identify the actual law firm name; the domain name must not be false, deceptive or misleading; the name must not imply any special expertise or competence, or suggest a particular result; and, it must not be used in advertising as a substitute identifier of the firm. 2. You can’t call yourself an “expert” or suggest a particular result on your law firm’s website or in your domain name 3. http://www.nycbar.org/ethics/ethics-opinions-local/2003- opinions/817-lawyers-and-law-firms-selection-and- advertising-of-internet-domain-names f. Referral Fees i. 7.2 1. Totalbankruptcy.com referral fees case 2. 5 attorneys found to violate 7.2 (in CT) 3. Paying “subscription fees” for advertisements 4. The line: paying “per referral” 5. Subscription services 6. Martindale/Lexis, Avvo, Superlawyers, Findlaw, Totalattorneys g. Outsourcing Marketing i. Willful ignorance of your marketing firm’s activities is no excuse 1. You can’t outsource ethics – you have to be aware of what your marketing firm is doing 2. If they call you an “expert” on your website then you could be in trouble 3. http://www.newyorkpersonalinjuryattorneyblog.com/2009/ 11/outsourcing-marketing-outsourcing-ethics-5-problems- with-outsourcing-attorney-marketing.html h. Retention i. 7.1(k) 1. Retain computer-based ads for 1 year 2. Retain website redesigns for at least 90 days i. Judges i. Overview 1. Don’t tweet during a trial 2. Don’t friend a judge 3. 3.5, 3.6, 8.1, 8.2, 8.4 ii. Blog post about a judge 1. NY lawyer suspended 5 years 2. Lawyer tried to get public pressure on the judge to free the lawyer’s client 3. Irrespective of the respondent’s sincerity in his beliefs, his overzealous behavior which took the form of disparaging remarks on the court, false accusations about Judge Amodeo disseminated in a public forum as part of a campaign to pressure the court into changing its rulings, and noncompliance with multiple court orders, truly constituted conduct prejudicial to the administration of justice. iii. Rule 8.4 (d) 1. A lawyer shall not: . . . engage in conduct that is prejudicial to the administration of justice iv. Rule 8.5 1. (a) A lawyer shall not knowingly make a false statement of fact concerning the qualifications, conduct or integrity of a judge or other adjudicatory officer or of a candidate for election or appointment to judicial office. v. Rule 3.5 (a) 1. A lawyer shall not: 2. (1) seek to or cause another person to influence a judge, official or employee of a tribunal by means prohibited by law vi. Rule 3.6 1. No extrajudicial statements the lawyer “knows or reasonably should know” will be publicly disseminated and can prejudice the matter vii. Rule 8.1 1. No false statements concerning the judge’s quality, integrity or conduct viii. Facebook friends with a judge = bad news and possibly 1. Judge saw that attorney was lying regarding need for a continuance (attorney posted beach photos when the attorney said a family member was sick 2. Ex parte a. Matter of Terry (NC 2009) ix. Florida State Bar v. Conway 1. Blog criticizing judge as “unfair witch” 2. Public reprimand j. Advertising i. Matter of Dannitte Mays Dickey (SC 2012) 1. Attorney made false statements on his website 2. Used the word “specialist” 3. Public reprimand What You Must Know to Defend Your Client Successfully 5 Phillip Smallman, Esq.
Philip J. Smallman, Esq.
32 Court Street Suite 1702 Brooklyn, New York 11201
Phone: 718 222-3073 Fax: 718-222-3056
Email: [email protected]
Work History • 1994 to Present, Private Law Practice, numerous Supreme Court Trials of Class ‘A’ Felony Cases, Article 81 Proceedings, Supreme Court Trial Matters, Family Court and Surrogates Court, General Civil Matters; • 1992-1884 Law Secretary to Acting Supreme Court Justice Seymour Gerschwer, Kings County; • 1991-1992 Private Law Practice; • 1990-1991 Assistant District Attorney, Kings County • 1988-1900 Special Assistant Attorney General, Office of the Special State Prosecutor for Corruption in the New York City Criminal Justice System • 1985-1988 Assistant District Attorney, Queens County • PRO BONO EXPERIENCE I devoted significant parts of four years to conduct an investigation which led to overturning a wrongful conviction and freeing an innocent man who had served nine years of an eighteen year jail sentence
Education J.D. Pace University Law School, 1982 B.A. Fordham University, 1977 Guest Lecturer, Pace Law School and Brooklyn Law School Volunteer Associate at “The Second Look Program” of Brooklyn Law School
Philip J. Smallman
32 Court Street Suite 1702 Brooklyn, New York 11201
Phone: 718 222-3073 Fax: 718-222-3056 347-498-2307
BIOGRAPHY
Phil Smallman was born, raised and is a lifelong Brooklyn resident. He is married, an the proud father of three and a grandfather. He graduated from Xaverian High School, Fordham University and Pace University School of Law, (J.D. 1982). He has been admitted to the practice of law in the Courts of New York State as well as the Southern and eastern Districts of the Federal Courts.
His employment history includes staff, operational and management duties at the New York Daily News.
Phil Smallman’s law enforcement work history includes service as a Deputy U.S. Marshal, (S.D.N.Y.) and Assistant District Attorney in both Queens and Kings Counties, and a Special Assistant Attorney General for the Office of the Special Prosecutor for Corruption.
In the private practice of law, Phil has tried in excess of fifty Class A felony matters many of which were also newsworthy. In the course of his practice, he conducted an investigation of the conviction of Gerald Harris, a young man who served nearly a decade for a crime he did not commit. After nearly four years of work, Phil’s motion to vacate his wrongful conviction was joined by the Queens District Attorney and Mr. Harris was freed.
Phil volunteers his time to coach 78th Precinct basketball and baseball and has served on their Executive Board. He coached AYSO youth soccer and started and coached the first sports team in the history of Dominical Academy High School to two consecutive championships.
He also served as President of the Genesis School Parents Advisory Committee as a member of the Father’s guild of Xavier High School. Phil is a member of Bar Associations and fraternal organizations. NEW YORK CRIMINAL PROCEDURE
Hon. Barry Kamins
1. Arrests
a) Arrests without a Warrant - CPL 140.10
b) Desk Appearance Tickets - CPL 150
c) Arrest Warrant - CPL 120
i) Payton v. New York, 445 US 573 (1980)
2. Commencement of the Criminal Action
a) Prosecutor’s Information - CPL 1.20
b) Misdemeanor Complaint - CPL 1.20
c) Information - CPL 1.20
d) Simplified Traffic Information - CPL 1.20
e) Felony Complaint - CPL 1.20
People v. Alejandro, 70 NY2d 133 (1987)
3. Arraignment
a) Bail - CPL Articles 510, 520 and 530
b) Orders of Protection - CPL 530.12
c) Notices
−1− CPL 190.50 CPL 710.30 - People v. O’Doherty, 70 NY2d 479 (1987)
d) Request for Article 730 examination
4. Preliminary Examination - CPL 180.50-80 People v. Hodge, 53 NY2d 313 (1981)
5. Release of Defendant in Custody CPL 180.80, 170.70
6) Grand Jury - CPL Article 190
a) Composition and Quorum People v. Collier, 72 NY2d 298
b) Evidence
c) Powers of Grand Jury People v. Lancaster, 69 NY2d 20 (1986)
1) Standard of Proof People v. Lopez, 79 NY2d 402
d) Transactional Immunity Matter of Rush v. Mordue, 68 NY2d 348 (1986)
1) Waiver
e) Defendant’s Right to Testify People v. Evans, 79 NY2d 407 (1992)
f) Secrecy
−2− Matter of DA of Suffolk Co., 58 NY2d 436 (1985)
g) Prosecutor’s Duty to Present Exculpatory Evidence People v. Hansen, 99 NY2d 339 (2003)
h) Prosecutor’s Role as Advisor People v. DeFabio, 79 NY2d 836 (1992)
i) Order of Witnesses Morgenthau v. Altman, 58 NY2d 1057 (1983)
j) Quorum People v. Collier, 72 NY2d 298
k) Waiver of Indictment - CPL 195 People v. Boston, 75 NY2d 585 (1990)
l) Sandoval in the Grand Jury People v. Smith, 87 NY2d 715 (1996)
m) Resubmission to the Grand Jury People v. Aarons, 2 NY3d 547 (2004)
7) Indictments - CPL 200, 210, 240
a) Amendments - People v. Taylor, 43 AD2d 519
b) Superceding - People v. Maye, 79 NY2d 104
c) Specificity - People v. Keindl, 68 NY2d 410 (1986)
8) Discovery
a) Constitutional - Brady v. Maryland (1963)
−3− b) Statutory - CPL 240.20
c) Public Policy - People v. Rosario, 9 NY2d 286 (1961) 9) Guilty Pleas
a) Voluntariness - People v. Selikoff, 35 NY2d 227 (1974)
b) Serrano Pleas - People v. Serrano, 15 NY2d 304 (1965)
c) Immigration Consequences Padilla v. Kentucky, _ US _, 130 S Ct 1473 (2010)
10) Pre-Trial Hearings
A) Suppression of Physical Evidence (Mapp Hearing) Mapp v. Ohio, 367 US 643 (1961)
1) Motion to Suppress
a) Motion must be made as part of omnibus motion within 45 days of Criminal Court or Superior Court arraignment. (Court can also grant extension for “good cause”).
b) Motion must state a legal basis for suppression (CPL 710.60(1)). Suppression can be based upon an unlawful search and seizure under the federal or state constitutions.
c) Legal basis for suppression must be supported by sworn allegations of fact (CPL 710.60(1).
1) Factual sufficiency is evaluated under the three-pronged test of People v. Mendoza, 82 NY2d 415 (1993).
−4− a) The defendant must allege facts rather than conclusions.
b) The defendant’s allegations must be read in context with the prosecutor’s theory of the case.
c) The court must consider the defendant’s access to information necessary to support suppression.
2) The facts must establish both a substantive theory of suppression and the defendant’s standing to challenge the unlawful conduct.
3) A suppression court can summarily deny a motion to suppress when the defendant uses boilerplate or conclusory language (People v. Vega, 210 AD2d 41 (1st Dept. 1994).
d) Prosecution is not required to file a written answer to the motion (CPL 710.60(I); however the court can then determine the motion on the undisputed assertions of the defense.
1) If the prosecution files a written response, the failure to deny the truth of a fact alleged by the defense is deemed an admission (People v. Gruden, 42 NY2d 214 (1977). However, the People can assert that they “controvert” a particular allegation without filing a specific denial. (People v. Weaver, 49 NY2d 1012).
2) Disposition of Motion to Suppress
−5− a) Court must summarily grant a motion to suppress (no hearing is necessary) when
1) The prosecution concedes the allegations of fact or the legal basis for suppression (CPL 710.60(2)(a)
2) The prosecution stipulates that it will not offer the physical evidence against the defendant (CPL 710.60(2)(b)
b) Court may summarily deny a motion to suppress when
1) The defense fails to allege sworn allegations of fact to support a legal basis for the motion.
2) The defense fails to allege a legal basis for the motion
c) If a court does not summarily grant or deny a suppression motion, it must conduct a hearing. (CPL 710.60(4).
3) The Hearing
a) A defendant has an absolute right of counsel at a Mapp hearing (People v. Anderson, 16 NY2d 282) (1965).
b) While a defendant can forfeit his right to attend the hearing by absconding, he does not forfeit his right to the hearing itself. (People v. Whitehead, 143 AD2d 1066 (2d Dept. 1988).
c) Hearsay is admissible at the hearing (CPL 710.60(4).
d) The defendant is entitled to Brady and Rosario material at the hearing (People v. Geaslen, 54 NY2d 510 (1981); People v. Banch, 80 NY2d 610 (1992).
−6− e) The prosecution has the burden of going forward to establish the legality of police conduct (People v. Malinsky, 15 NY2d 86 (1965).
1) The prosecution must present credible testimony. The burden will not be met if the testimony is:
a) incredible as a matter of law; b) has all the appearances of having been tailored to nullify constitutional objections;
c) evasive or disingenuous;
d) physically impossible;
e) contrary to experience;
f) self-contradictory.
f) Once the prosecution meets its burden, the defendant has the ultimate burden, by a fair preponderance of the evidence, to establish the illegality of the police conduct. (People v. Berrios, 28 NY2d 361 (1971).
g) There are several exceptions to the rule placing the ultimate burden on the defense. In the following situations, the People have the ultimate burden:
1) The defendant consents to a search (People v. Whitehurst, 25 NY2d 389 (1969) (by clear and positive evidence).
2) The defendant abandons property (People v. Howard, 50 NY2d 583 (1980).
−7− 3) The three exceptions to the “fruit of the poisonous tree” doctrine.
a) Inevitable Discovery Doctrine (People v. Bookless, 120 AD2d 950 (4th Dept. 1986).
b) Attenuation (People v. Martinez, 37 NY2d 662 (1975).
c) Independent Source (People v. Arnau, 58 NY2d 27 (1982).
4) The Court’s Ruling
a) The suppression court must state on the record its finding of fact, conclusions of law and the reasons for its determination (CPL 710.60(6).
b) The ruling must be made prior to jury selection (CPL 710.40(3) . c) Defendant has the right to a transcript of the hearing prior to the commencement of a trial provided the request is made before the hearing concludes. (People v. Sanders, 31 NY2d 463 (1973).
B) Suppression of Statements (Huntley Hearing) (People v. Huntley, 15 NY 72 (1965)
1) Motion to Suppress
a) Motion must be made as part of omnibus motion within 45 days of Criminal Court or Superior Court arraignment. The 45 day period begins to run from date when statement or identification notice is served. (Court can also grant extension for “good cause”).
−8− b) Motion must state a legal basis for suppression (710.60(1)). Suppression can be based on one of the following grounds:
1) A violation of Miranda v. Arizona, 384 US 436 (1966) (5th Amendment).
2) A violation of traditional involuntariness rules (14th Amendment). 3) A violation of the New York right to counsel rules (Article 1, Section 6, New York State Constitution).
4) A violation of the prohibition against illegal searches and seizures (4th Amendment) (See also CPL 60.45 that discusses suppression of statements “involuntarily made”). c) Legal basis for suppression must normally be supported by sworn allegations of fact (CPL 710.60(1)).
1) When a Huntley hearing is requested there is an exception to the factual pleading requirement. (CPL 710.30(3)(b) and 710.20(3)).
2) The absence or inadequacy of factual allegations is not a basis on which the court may summarily deny the motion.
3) The exception does not apply when the defendant seeks to suppress a confession as fruit of an unlawful search or seizure; the defendant must allege sufficient sworn allegations of fact. (People v. Rosario, 245 AD2d 151 (1st Dept. 1997); People v. Mendoza, 82 NY2d 415 (1993).
−9−
d) Prosecution is not required to file a written answer to the motion (CPL 710.60(1)); however the court can then determine the motion on the undisputed assertions of the defense.
1) If the prosecution files a written response, the failure to deny the truth of a fact alleged by the defense is deemed an admission (People v. Gruden, 42 NY2d 214 (1977)). However, the People can assert that they “controvert” a particular allegation without filing a specific denial. (People v. Weaver, 49 NY2d 1012)
2) Disposition of Motion to Suppress
a) Court must summarily grant a motion to suppress (no hearing is necessary) when:
1) The prosecution concedes the allegations of fact or the legal basis for suppression (CPL 710.60(2)(a)).
2) The prosecution stipulates that it will not offer the statement against the defendant (CPL 710.60(2)(b)) . b) The court may summarily deny a motion to suppress if the defense fails to allege a legal basis or ground for suppression . c) If a Court does not summarily grant or deny a suppression motion, it must conduct a hearing. (CPL 710.60(4)).
3) The Hearing
a) A defendant has an absolute right to counsel at a Huntley hearing (People v. Anderson, 16 N&2d 282 (1965)).
−10− b) While a defendant can forfeit his right to attend the hearing by absconding, he does not forfeit his right to attend the hearing itself. (People v. Logan, 271 AD2d 549 (2d Dept. 2000)). c) Hearsay is admissible at the hearing (CPL 710.60(4)). d) The hearing is not designed to determine the truth or accuracy of a statement or whether the defendant actually made the statement; those issues are to be determined at trial (People v. Schompert, 19 NY2d 300 (1967)).
e) The defendant is entitled to Brady and Rosario material at the hearing (People v. Geaslen, 54 NY2d 510 (1981)); People v. Banch, 80 NY2d 610 (1992)).
f) The prosecution has the burden of going forward to establish either a lawful rationale for the conduct of the police or some other basis for averting suppression of a statement. (People v. Wesley, 73 NY2d 351 (1989)); People v. Chavis, 147 AD2d 582 (2d Dept. 1989)).
g) With respect to traditional voluntariness issues (14th Amendment), the prosecution has the ultimate burden to establish, beyond a reasonable doubt, that the statement was voluntary (People v. Huntley, 15 NY2d 72 (1965)); People v. Valeruis, 31 NY2d 52 (1972)). h) With respect to a violation of Miranda:
1) The people have the burden of going forward to establish:
a) That the defendant was adequately advised of his Miranda rights (People v. Ringer, 140 AD2d 642
−11− (2d Dept. 1988)); People v. Gonzalez, 55 NY2d 720 (1981).
2) Once the People meet this burden, the defendant has the ultimate burden of establishing:
a) The rights were not given or understood (People v. Love, 85 AD2d 799 (3d Dept. 1981)).
b) The defendant was in custody at the time he was interrogated. (Berkemer v. McCarty, 468 US 420 (1984)); cf People v. Alls, 83 N&2d 94 (1993).
c) When the defendant has made two statements, and the first is obtained unlawfully, but the second lawfully, the first statement taints the later one (People v. Tanner, 30 NY2d 102 (1972)).
I) With respect to New York’s right to counsel rules, once the prosecution has met its burden of going forward, the defense has the ultimate burden of persuasion to establish that the defendant’s right to counsel had attached at the time of the statement (People v. West, 81 NY2d 370 (1993)).
1) Once the defendant carries this burden, the prosecution then has the burden to establish:
a) That the representation by counsel had ceased (People v. West, 81 NY2d 370 (1993)).
b) That the right to counsel was validly waived if waiver was possible (People v. Davis, 75 NY2d 517 (1990)).
4) The Court’s Ruling
−12−
a) The suppression Court must state on the record its findings of fact, conclusions of law and the reasons for its determination (CPL 710.60(6)).
b) The ruling must be made prior to jury selection (CPL 710.40(3)).
c) Defendant has the right to a transcript of the hearing prior to the commencement of a trial provided the request is made before the hearing concludes (People v. Sander, 31 NY2d 463 (1973)).
d) A ruling suppressing a statement at trial is different from a preclusion order that prevents the People from introducing a statement because the People failed to serve proper notice of the evidence (CPL 710.30(3)).
1) The people may appeal a suppression ruling but may not appeal a preclusion order (CPL 450.20). (People v. Laing, 79 NY2d 166 (1992)).
C) Suppression of Identification Evidence (Wade Hearing) U.S. v. Wade, 388 US 218 (1967)
1) Motion to Suppress
a) Motion must be made as part of omnibus motion within 45 days of Criminal Court or Superior Court arraignment. The 45 day period begins to run from date when statement or identification notice is served. (Court can also grant extension for “good cause”).
−13− b) Motion must state a legal basis for suppression (710.60(1)). Suppression can be based on one of the following three grounds:
1) Product of an unduly suggestive identification procedure (lack of due process) (14th Amendment).
2) Violation fo an accused person’s right to counsel (Sixth Amendment).
3) Fruit of an unlawful search or seizure (Fourth Amendment).
c) Legal basis for suppression must normally be supported by sworn allegations of fact (CPL 710.60(1)).
1) When a Wade hearing is requested, there is an exception to the factual pleading requirement (CPL 710.60(3)(b) and 710.120(6)).
2) The absence or inadequacy of factual allegations is not a basis on which the court may summarily deny the motion.
3) The exception does not apply when the defendant seeks to suppress identification evidence as fruit of an unlawful search or seizure; the defendant must allege sufficient sworn allegations of fact. (People v. Mendoza, 82 NY2d 415 (1993)). d) Prosecution is not required to file a written answer to the motion (CPL 710.60(1)); however, the court can then determine the motion on the undisputed assertions of the defense.
−14− 1) If the prosecution files a written response, the failure to deny the truth of a fact alleged by the defense is deemed an admission. (People v. Gruden, 42 NY2d 214 (1977)). However, the People can assert that they “controvert” a particular allegation without filing a specific denial. (People v. Weaver, 49 NY2d 1012)).
2) Disposition of Motion to Suppress
a) Court must summarily grant a motion to suppress (no hearing is necessary) when:
1) The prosecution concedes the allegations of fact or the legal basis for suppression (CPL 710.60(2)(a)).
2) The prosecution stipulates that it will not offer the identification evidence against the defendant (CPL 710.60(2)(b)).
b) Court may summarily deny a motion to suppress when:
1) The defense fails to allege sworn specific facts when the identification evidence is the fruit of an unlawful search or seizure.
2) The defense fails to allege a legal basis or ground for suppression.
3) The defense alleges a legal basis for suppression but the prosecution demonstrates with sworn factual allegations that, as a matter of law, there is no “identification” subject to suppression under CPL 710.30, e.g. confirmatory identification.
−15− a) If there is an issue of fact as to whether the identification is exempt from CPL 710.30, a hearing must be ordered.
c) If a court does not summarily grant or deny a suppression motion, it must conduct a hearing. (CPL 710.60(4)).
3) The Hearing
a) A defendant has an absolute right to counsel at a Wade hearing. (People v. Carracedo, 214 AD2d 404 (1st Dept. 1995)).
b) While a defendant can forfeit his right to attend the hearing by absconding he does not forfeit his right to the hearing itself (People v. Griffin, 225 AD2d 792 (2d Dept. 1996)); People v. Whitehead, 143 AD2d 1066 (2d Dept. 1988)).
c) Hearsay is admissible at the hearing (CPL 710.60(4)).
d) The defendant is entitled to Brady and Rosario material at the hearing. (People v. Geaslen, 54 NY2d 510 (1981)); People v. Banch, 80 NY2d 610 (1992).
e) The prosecution has the burden of going forward with credible evidence that the police acted lawfully and that the pre-trial identification was non-suggestive (People v. Chipp, 75 NY2d 327 (1990)); People v. Ortiz, 90 NY2d 533 (1997).
1) To meet this burden the prosecution is not required to call the identifying witness, and can call the police officer who conducted the identification. People v. Brown, 111 AD2d 928 (2d Dept. 1985)).
f) Once the prosecution goes forward, the defense has the burden, by a fair preponderance of the evidence to prove that the
−16− pre-trial identification was unduly suggestive (People v. Jackson, 161 Misc.45 (Sup. Ct., Bronx Co., 1994)); People v. Chipp, 75 NY2d 327 (1990).
1) The defendant does not have the right to call the identifying witness unless the defense can make an offer of proof that the witness might fill a material gap in the police officer’s narrative or that the witness’ account differs from the narrative (People v. Chipp, 75 NY2d 327 (1990)). g) Once the defense establishes that the pre-trial identification was unduly suggestive, the prosecution must prove, by clear and convincing evidence that there was an independent source for the identification. (People v. Ballot, 20 NY2d 600 (1967)); People v. Rahming, 26 NY2d 411 (1970)). The prosecution’s purpose in doing so is to establish the admissibility of the in-court identification. 1) In order to establish independent source, the People must call the identifying witness to prove subjective facts known to that witness. (People v. Riley, 70 NY2d 523 (1987)). h) The People are expected to maintain a record of the identification procedure and a failure to retain the photographs used or a picture of the lineup creates a presumption of suggestiveness. (People v. Brennan, 222 AD2d 445 (2d Dept. 1995)).
1) The presumption may be rebutted by evidence detailing what the photographs would have demonstrated. (People v. Brennan, supra).
−17− i) A suppression court should resolve both the issue of the prior identification as well as the admissibility of the in-court identification.
1) If a suppression court rules that there was no suggestiveness and then fails to address the issue of the in-court identification, should an appellate court reverse the ruling on suggestiveness, a new trial must be ordered (preceded by a new independent source hearing, unless the admission of the witness’ entire identification evidence was harmless error. (People v. Burts, 78 NY2d 20 (1991)).
j) When the defendant’s claim is that the right to counsel had attached, the defendant has the burden of proof as to the facts essential to that claim. (People v. Green, 188 AD2d 385 (1st Dept. 1992)).
−18− 4) The Court’s Ruling
a) The suppression court must state on the record its finding of fact, conclusions of law and the reasons for its determination. (CPL 710.60(6)).
b) The ruling must be made prior to jury selection (CPL 710.40(3)).
c) Defendant has the right to a transcript of the hearing prior to the commencement of a trial provided the request is made before the hearing concludes. (People v. Sanders, 31 NY2d 463 (1973)).
d) A ruling suppressing identification at trial is different from a preclusion order that prevents the People from introducing identification evidence because of the People’s failure to serve proper notice of the evidence. (CPL 710.20(3)).
1) The People may appeal a suppression ruling but may not appeal a preclusion order (CPL 450.20). People v. Laing, 79 NY2d 166 (1992).
D) Other Pre-Trial Hearings
1) Alfinito Hearing (also called Franks hearing) – Challenges veracity of affidavit in support of search warrant. (People v. Alfinito, 16 NY2d 181 (1965); Franks v. Delaware, 438 US 154 (1978))
2) Darden Hearing – In camera examination of confidential informant to establish probable cause (People v. Darden, 34 NY2d 177 (1974))
3) Dunaway Hearing – Whether evidence should be suppressed because defendant was placed in custodial detention on less
−19− than probable cause. (Dunaway v. New York, 442 US 200 (1979))
4) Forman Hearing – Defendant challenges an order of protection that directs him to leave premises (People v. Forman, 145 Misc.2d 115 (NY Crim Ct 1989))
5) Frye Hearing – Court must rule on the admissibility of scientific evidence (still held in New York courts but superceded in federal courts by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 US 579 (1993) (Frye v. U.S., 293 F. 1013 (1923))
6) Gomberg Hearing – Court’s examination of defense counsel’s conflict in representing more than one defendant (People v. Gomberg, 38 NY2d 307 (1975))
7) Hinton Hearing – Hearing to rule on courtroom closure (People v. Hinton, 31 NY2d 71 (1972))
8) Martin Hearing - Admissibility of a defendant’s refusal to take a breathalyzer test (People v. Martin, 143 Misc2d 341 (1989))
9) Pringle Hearing – Hearing conducted prior to conclusion of arraignment to determine whether a suspension of a driver’s license would constitute a hardship (Pringle v. Wolfe, 88 NY2d 426 (1996))
10) Rodriguez Hearing – pre-Wade hearing to determine whether defendant was known to the identifying witness, rendering a Wade hearing unnecessary (People v. Rodriguez, 79 NY2d 445 (1992))
11) Sandoval Hearing – Use of defendant’s prior convictions for impeachment purposes (People v. Sandoval, 34 NY2d 371 (1974))
−20− 12) Sirois Hearing – (also Mastrangelo Hearing) – Whether grand jury testimony should be admitted because defendant caused the unavailability of a witness (Holtzman v. Hellebrand, 92 AD2d 405 (2d Dept. 1983); U.S. v. Mastrangelo, 693 F2d 269 (2d Cir 1982))
13) Ventimiglia Hearing – Admissibility of prior similar acts or crimes by defendant as part of prosecution’s direct case (People v. Ventimiglia, 52 NY2d 350 (1981))
14) Parker Hearing – People v. Parker, 57 NY2d 136
11) Severance Motion - CPL 200.30, 200.40
1) Bruton issue – Bruton v. U.S., 391 US 123 (1968)
2) Antagonistic defenses – People v. Mahboubian, 74 NY2d 174 (1989)
12) Youthful Offender - CPL 720 People v. Drayton, 39 NY2d 580 (1976)
13) Juvenile Offender - CPL 1.20(42)
14) Fitness to Proceed - Article 730 CPL
Incapacitated Person - CPL 730.10(1) - A defendant who, as a result of mental disease or defect, lacks capacity to
1) understand the proceeding against him; or
2) assist in his own defense
15) Defendant’s right to be present at critical stages of a trial
−21− a) Pre-trial hearings 1) Sandoval - People v. Dokes, 79 NY2d 656 (1992)
2) Ventimiglia - People v. Spotford, 85 NY2d 593 (1998)
b) Jury Selection People v. Antommarchi, 80 NY2d 247 (1992)
c) Closing the Courtroom People v. Hinton, 31 NY2d 71
16) Jury Selection
a) Voir Dire People v. Jean, 75 NY2d 744 (1989)
b) Challenge for Cause - CPL 270.20, 360.25
c) Peremptory Challenge - CPL 270.25 Batson v. Kentucky, 476 US 79 (1986) J.E.B. Alabama ex rel T.B. 511 US 127 (1994) People v. Garcia, 217 AD2d 119 (2d Dept. 1995) (black females People v. Kein, 75 NY2d 638 (1990)
1) Batson Challenge
a) A prima facie showing of discrimination
b) The race neutral explanation
c) The issue of whether the explanation is pretextual
−22− 17) Removal of Sworn Jurors - CPL 270.35
a) Grossly unqualified People v. Buford, 69 NY2d 290 (1987)
b) Unavailable for continued service - CPL 270.35(2)
18) Preliminary Instruction - CPL 270.40
19) Opening Statement - CPL 260.30(3)(4)
20) Objections by defense counsel must sufficiently preserve error People v. Balls, 69 NY2d 641 (1988)
21) Trial Order of Dismissal - end of People’s Case - CPL 290.10
22) Defendant’s Case
a) Alibi - PL 250.20(1), CPL 250.10
b) Justiftication - PL 35.00
c) Agency People v. Roche, 45 NY2d 78 (1978)
d) Intoxication - PL 15.25
e) Affirmative Defenses - PL 25.00
1) Not responsible - PL 40.15, CPL 250.10
2) Extreme Emotional Difference
3) Entrapment - PL 40.05
−23−
4) Duress - PL 40.00
5) Renunciation - PL 40.10
23) Motion for Trial Order of Dismissal - end of entire case - CPL 290.10
24) Pre-Charge Conference - CPL 300.10
25) Summation
26) Court’s Charge - CPL 300
a) Must be oral
b) Written notations or instructions - CPL 310.20(2)
c) Jury Note Taking People v. Tucker, 77 NY2d 861 (1991)
27) Jury Deliberations
a) Jurors must be kept together - CPL 310.10 People v. Coons, 75 NY2d 796 (1990)
b) Alternate jurors cannot converse with regular jurors
c) Jurors can go home with consent of defendant People v. Webb, 78 NY2d 335 (1991)
28) Response to Jury Note
a) Timing of response People v. Aleman, 12 NY2d 806 (2009)
−24− b) Nature of response People v. Greene, 75 NY2d 875 (1990) c) Notice to counsel - CPL 310.30 People v. O’Rama, 78 NY2d 270 (1991)
29) Allen Charge Allen v. U.S., 164 US 492 (1896)
30) The Verdict - CPL 310.40-85
a) Repugnant Verdicts People v. Green, 71 NY2d 1006 (1988)
b) Partial Verdicts - CPL 310.70
31) Polling the Jury
32) Mistrial - Deadlocked Jury Matter of Plummer v. Rothwax, 63 NY2d 243 (1984)
33) Motion to Set Aside Verdict - CPL 330.30
a) Grounds which require reversal upon appeal
b) Improper Jury Conduct
c) Newly discovered evidence People v. Salemi, 39 NY2d 208 (1955)
34) Sentencing
a) Requirement of Pre-Sentence Report - CPL 390.20
b) Victim’s Impact Statement - CPL 380.50(2)(b)
−25− c) Cruel and Unusual Punishment People v. Thompson, 83 NY2d 477 (1994)
d) Sentence of Probation - CPL 410
e) Sentence of Imprisonment
1) First felony offender - PL 70.00
2) Second felony offender - PL 70.00
3) Persistent felony offender - PL 70.00
4) Persistent violent felony offender - PL 70.00
35) Post Judgment Proceedings
a) Judgment of Not Responsible by Reason of Mental Disease or Defect - CPL 330.20
1) Orders of Conditions
2) Retention Hearing
b) Motion to Vacate Judgment - CPL 440
c) Writ of Habeas Corpus People v. Bachert, 69 NY2d 593 (1987)
d) Bail Pending Appeal - CPL 460.50, 460.60, 530.50
36) Appeals - CPL 450, 460, 470
a) Intermediate Appellate Courts
−26− 1) Appealability
2) Reviewability
3) Verdict against the weight of evidence People v. Bleakely, 69 NY2d 490 (1987) b) Court of Appeals
1) Appealability
2) Reviewability
a) Preservation People v. Balls, 69 NY2d 641 (1986) b) Questions of Law
−27−
An Introduction to Matrimonial Law Practice 6 Briana Denney, Esq.
Briana Denney is a partner in the law firm of Newman & Denney P.C., and represents clients in all stages of matrimonial and family law negotiation and litigation, including the drafting of prenuptial and postnuptial agreements, divorce, child custody and visitation, and enforcement of divorce agreements and judgments. Prior to private practice, she worked for a matrimonial judge in New York Supreme Court. She was formerly co-chair of the New York Women's Bar Matrimonial and Family Law Committee and is an active member of the New York City Bar Matrimonial Committee, providing monthly matrimonial law updates. She is also a member of the Interdisciplinary Forum on Mental Health and Family Law. In addition to bar associations, she volunteers her time by providing pro bono legal services through the NYWBA Pro Bono Program. Briana grew up in Arizona and attended the University of Arizona, where she earned her B.A. degree with honors. She moved from Boston to attend the City University of New York where she earned her J.D.
BRIDGE THE GAP Matrimonial Law March 28, 2014
Briana Denney, Esq. Newman & Denney P.C.
THE PATHS TO OBTAINING A JUDGMENT OF DIVORCE OR ANNULMENT
1. Uncontested: Parties either have reached an agreement or a party has not appeared and there is no property, etc. to divide. All paperwork is submitted to the Supreme Court and processed. No court appearance is required. The divorce forms can be found at: http://courts.state.ny.us/divorce/divorce_withchildrenunder21.shtml#ucdforms
2. Contested: Parties are unable to reach an agreement and one, or several, issues must be brought before the Court. Or, a party defaults and the Court must take testimony or a motion must be filed in order to address property and other issues which need to be resolved. A request for judicial intervention is filed and the case is placed on the Court calendar. a. If the parties resolve the dispute(s) prior to trial, an agreement is submitted with the divorce forms. (Some judges also require that an inquest and allocution be completed). b. If the parties are unable to resolve the dispute, the disputed areas are sent to trial and the Court issues a decision. Some of the forms that are required for uncontested divorces are required to be submitted: check with the clerk of each county’s Matrimonial Support office for requirements.
ANNULMENT (and Declaration of Nullity of Void Marriage)
DRL Sections 140-146 Grounds Defenses Right to Jury Trial Three (3) year statute of limitations if ground is fraud (CPLR § 214(7))
GROUNDS FOR DIVORCE
Effect of ground for divorce alleged upon economics of the divorce None, except in regards to egregious fault, which impacts economic distribution and permits discovery as to grounds See, e.g., Howard S. v. Lillian S., 62 AD3d 187 (1st Dept. 2009) (Husband’s allegations did not rise to the level of egregious fault, but history of cases which have constituted egregious fault are discussed.)
McKinney's DRL § 170 § 170. Action for divorce
An action for divorce may be maintained by a husband or wife to procure a judgment divorcing the parties and dissolving the marriage on any of the following grounds:
(1) The cruel and inhuman treatment of the plaintiff by the defendant such that the conduct of the defendant so endangers the physical or mental wellbeing of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant.
(2) The abandonment of the plaintiff by the defendant for a period of one or more years.
(3) The confinement of the defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant.
(4) The commission of an act of adultery, provided that adultery for the purposes of articles ten, eleven, and eleven-A of this chapter, is hereby defined as the commission of an act of sexual intercourse, oral sexual conduct or anal sexual conduct, voluntarily performed by the defendant, with a person other than the plaintiff after the marriage of plaintiff and defendant. Oral sexual conduct and anal sexual conduct include, but are not limited to, sexual conduct as defined in subdivision two of section 130.00 and subdivision three of section 130.20 of the penal law.
(5) The husband and wife have lived apart pursuant to a decree or judgment of separation for a period of one or more years after the granting of such decree or judgment, and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such decree or judgment.
(6) The husband and wife have lived separate and apart pursuant to a written agreement of separation, subscribed by the parties thereto and acknowledged or proved in the form required to entitle a deed to be recorded, for a period of one or more years after the execution of such agreement and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such agreement. Such agreement shall be filed in the office of the clerk of the county wherein either party resides. In lieu of filing such agreement, either party to such agreement may file a memorandum of such agreement, which memorandum shall be similarly subscribed and acknowledged or proved as was the agreement of separation and shall contain the following information: (a) the names and addresses of each of the parties, (b) the date of marriage of the parties, (c) the date of the agreement of separation and
2 (d) the date of this subscription and acknowledgment or proof of such agreement of separation.
(7) The relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath. No judgment of divorce shall be granted under this subdivision unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts' fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce.
Defenses to Grounds for Divorce 1. DRL § 171: applicable to adultery 2. DRL § 210: five (5) year “statute of limitations” if ground is cruel and inhuman treatment or confinement to prison for 3 or more years (applies to certain grounds for Separation also)
Right to Jury Trial DRL § 173: In an action for divorce there is a right to trial by jury of the issues of the grounds for granting the divorce.
Defenses and Right to Jury Trial Regarding Irretrievable Breakdown The Appellate Division has yet to rule on these issues. The majority of the trial court decisions state that there is no right to a jury trial and no defenses.
Holding no right to jury trial: Williams v. Robins, NYLJ 1202558129649 (Sup Ct. NY Co., 2012) (“There are no triable issues of fact with regard to irretrievable breakdown.”); several other trial courts have also ruled there is no right to a jury trial or a trial on this ground, which cases are cited in this opinion.
Holding there is a right to jury trial: Strack v. Strack, 31 Misc.3d 258 (Sup. Ct. Essex Co., 2011), and Schiffer v. Schiffer, 33 Misc.3d 795 (Sup. Ct. Dutchess Co. 2011) (DRL §170(7) is subject to the trial requirement of DRL §173).
3
SEPARATION DRL § 200-203
Defenses DRL § 202: justification DRL § 210: five (5) year “statute of limitations” if ground is cruel and inhuman treatment or neglect or refusal to provide support (applies to certain grounds for divorce also)
DRL § 203: judgment of separation may be revoked by issuing court upon joint application of parties with proof of reconciliation
DISSOLUTION OF MARRIAGE ON GROUND OF ABSENCE DRL § 220-221 (“Enoch Arden” Law): Basis is belief that spouse is dead Special proceeding, not an action, required (CPLR Article 4)
4
PLEADINGS IN MATRIMONIAL ACTIONS
1. Must be Verified: DRL § 211
McKinney's DRL § 211 § 211. Pleadings, proof and motions
A matrimonial action shall be commenced by the filing of a summons with the notice designated in section two hundred thirty-two of this chapter, or a summons and verified complaint as provided in section three hundred four of the civil practice law and rules. A final judgment shall be entered by default for want of appearance or pleading, or by consent, only upon competent oral proof or upon written proof that may be considered on a motion for summary judgment. Where a complaint or counterclaim in an action for divorce or separation charges adultery, the answer or reply thereto may be made without verifying it, except that an answer containing a counterclaim must be verified as to that counterclaim. All other pleadings in a matrimonial action shall be verified.
2. Summons Must Contain Language as Specified: DRL § 232
McKinney's DRL § 232 § 232. Notice of nature of matrimonial action; proof of service a. In an action to annul a marriage or for divorce or for separation, if the complaint is not personally served with the summons, the summons shall have legibly written or printed upon the face thereof: “Action to annul a marriage”, “Action to declare the nullity of a void marriage”, “Action for a divorce”, or “Action for a separation”, as the case may be, and shall specify the nature of any ancillary relief demanded. A judgment shall not be rendered in favor of the plaintiff upon the defendant's default in appearing or pleading, unless either (1) the summons and a copy of the complaint were personally delivered to the defendant; or (2) the copy of the summons (a) personally delivered to the defendant, or (b) served on the defendant pursuant to an order directing the method of service of the summons in accordance with the provisions of section three hundred eight or three hundred fifteen of the civil practice law and rules, shall contain such notice. b. An affidavit or certificate proving service shall state affirmatively in the body thereof that the required notice was written or printed on the face of the copy of the summons delivered to the defendant and what knowledge the affiant or officer who executed the certificate had that he was the defendant named and how he acquired such knowledge. The court may require the affiant or officer who executed the affidavit or certificate to appear in court and be examined in respect thereto.
5 SUMMONS MUST CONTAIN THE FOLLOWING NOTICES
1. DRL §236(B)(2)(b): “Automatic Orders”
With respect to matrimonial actions which commence on or after the effective date of this paragraph, the plaintiff shall cause to be served upon the defendant, simultaneous with the service of the summons, a copy of the automatic orders set forth in this paragraph. The automatic orders shall be binding upon the plaintiff in a matrimonial action immediately upon the filing of the summons, or summons and complaint, and upon the defendant immediately upon the service of the automatic orders with the summons. The automatic orders shall remain in full force and effect during the pendency of the action, unless terminated, modified or amended by further order of the court upon motion of either of the parties or upon written agreement between the parties duly executed and acknowledged. The automatic orders are as follows:
(1) Neither party shall sell, transfer, encumber, conceal, assign, remove or in any way dispose of, without the consent of the other party in writing, or by order of the court, any property (including, but not limited to, real estate, personal property, cash accounts, stocks, mutual funds, bank accounts, cars and boats) individually or jointly held by the parties, except in the usual course of business, for customary and usual household expenses or for reasonable attorney's fees in connection with this action. (2) Neither party shall transfer, encumber, assign, remove, withdraw or in any way dispose of any tax deferred funds, stocks or other assets held in any individual retirement accounts, 401K accounts, profit sharing plans, Keogh accounts, or any other pension or retirement account, and the parties shall further refrain from applying for or requesting the payment of retirement benefits or annuity payments of any kind, without the consent of the other party in writing, or upon further order of the court; except that any party who is already in pay status may continue to receive such payments thereunder. (3) Neither party shall incur unreasonable debts hereafter, including, but not limited to further borrowing against any credit line secured by the family residence, further encumbrancing any assets, or unreasonably using credit cards or cash advances against credit cards, except in the usual course of business or for customary or usual household expenses, or for reasonable attorney's fees in connection with this action. (4) Neither party shall cause the other party or the children of the marriage to be removed from any existing medical, hospital and dental insurance coverage, and each party shall maintain the existing medical, hospital and dental insurance coverage in full force and effect. (5) Neither party shall change the beneficiaries of any existing life insurance policies, and each party shall maintain the existing life insurance, automobile insurance, homeowners and renters insurance policies in full force and effect.
New as of January 30, 2013 – the Summons must also contain the following language: (NYCRR 202.16a) (6) These automatic orders shall remain in full force and effect during the pendency of the action unless terminated, modified or amended by further order of the court or upon written agreement between the parties. (7) The failure to obey these automatic orders may be deemed a contempt of court.
6
2. DRL § 255(1): Notice regarding health care coverage
Both parties have been notified, at such time and by such means as the court shall determine, that once the judgment is signed, a party thereto may or may not be eligible to be covered under the other party's health insurance plan, depending on the terms of the plan. Provided, however, service upon the defendant, simultaneous with the service of the summons, of a notice indicating that once the judgment is signed, a party thereto may or may not be eligible to be covered under the other party's health insurance plan, depending on the terms of the plan, shall be deemed sufficient notice to a defaulting defendant.
OBTAINING JURISDICTION; METHODS OF SERVICE DRL § 232-233 CPLR § 308, 309, 312-a, 313-316 Personal service required unless not possible All other methods require court order, which requires a motion (e.g., Hollow v. Hollow, 193 Misc.2d 691 (Sup. Ct., Oswego Co. 2002) (service by email permitted under CPLR 308(5) combined with international registered airmail and international standard mail)
RESIDENCY REQUIREMENTS (Remember, residence does not equal domicile)
McKinney's DRL § 230 § 230. Required residence of parties
An action to annul a marriage, or to declare the nullity of a void marriage, or for divorce or separation may be maintained only when: 1. The parties were married in the state and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or 2. The parties have resided in this state as husband and wife and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or 3. The cause occurred in the state and either party has been a resident thereof for a continuous period of at least one year immediately preceding the commencement of the action, or 4. The cause occurred in the state and both parties are residents thereof at the time of the commencement of the action, or 5. Either party has been a resident of the state for a continuous period of at least two years immediately preceding the commencement of the action.
7 DISCLOSURE
Governed by the CPLR, but specific matrimonial requirements are set out in the DRL and 22 NYCRR 202.16
Section 202.16 Matrimonial actions; calendar control of financial disclosure in actions and proceedings involving alimony, maintenance, child support and equitable distribution; motions for alimony, counsel fees pendente lite, and child support; special rules.
(a) Applicability.
This section shall be applicable to all contested actions and proceedings in the Supreme Court in which statements of net worth are required by section 236 of the Domestic Relations Law to be filed and in which a judicial determination may be made with respect to alimony, counsel fees, pendente lite, maintenance, custody and visitation, child support, or the equitable distribution of property, including those referred to Family Court by the Supreme Court pursuant to section 464 of the Family Court Act.
(b) Form of Statements of Net Worth.
Sworn statements of net worth, except as provided in subdivision (k) of this section, exchanged and filed with the court pursuant to section 236 of the Domestic Relations Law, shall be in substantial compliance with the Statement of Net Worth form contained in Chapter III, Subchapter A of Subtitle D (Forms) of this Title.
(c) Retainer Agreements
(1) A signed copy of the attorney's retainer agreement with the client shall accompany the statement of net worth filed with the court, and the court shall examine the agreement to assure that it conforms to Appellate Division attorney conduct and disciplinary rules. Where substitution of counsel occurs after the filing with the court of the net worth statement, a signed copy of the attorney's retainer agreement shall be filed with the court within 10 days of its execution.
(2) An attorney seeking to obtain an interest in any property of his or her client to secure payment of the attorney's fee shall make application to the court for approval of said interest on notice to the client and to his or her adversary. The application may be granted only after the court reviews the finances of the parties and an application for attorney's fees.
(d) Request for Judicial Intervention.
A request for judicial intervention shall be filed with the court by the plaintiff no later than 45 days from the date of service of the summons and complaint or summons with notice upon the defendant, unless both parties file a notice of no necessity with the court, in which event the request for judicial intervention may be filed no later than 120 days from the date of service of
8 the summons and complaint or summons with notice upon the defendant. Notwithstanding section 202.6(a) of this Part, the court shall accept a request for judicial intervention that is not accompanied by other papers to be filed in court.
(e) Certification.
Every paper served on another party or filed or submitted to the court in a matrimonial action shall be signed as provided in section 130-1.1a of this Title.
(f) Preliminary Conference.
(1) In all actions or proceedings to which this section of the rules is applicable, a preliminary conference shall be ordered by the court to be held within 45 days after the action has been assigned. Such order shall set the time and date for the conference and shall specify the papers that shall be exchanged between the parties. These papers must be exchanged no later than 10 days prior to the preliminary conference, unless the court directs otherwise. These papers shall include:
(i) statements of net worth, which also shall be filed with the court no later than 10 days prior to the preliminary conference;
(ii) all paycheck stubs for the current calendar year and the last paycheck stub for the immediately preceding calendar year;
(iii) all filed State and Federal income tax returns for the previous three years, including both personal returns and returns filed on behalf of any partnership or closely held corporation of which the party is a partner or shareholder;
(iv) all W-2 wage and tax statements, 1099 forms, and K-1 forms for any year in the past three years in which the party did not file State and Federal income tax returns;
(v) all statements of accounts received during the past three years from each financial institution in which the party has maintained any account in which cash or securities are held;
(vi) the statements immediately preceding and following the date of commencement of the matrimonial action pertaining to:
(a) any policy of life insurance having a cash or dividend surrender value; and
(b) any deferred compensation plan of any type or nature in which the party has an interest including, but not limited to, Individual Retirement Accounts, pensions, profit- sharing plans, Keogh plans, 401(k) plans and other retirement plans.
Both parties personally must be present in court at the time of the conference, and the judge
9 personally shall address the parties at some time during the conference.
(2) The matters to be considered at the conference may include, among other things:
(i) applications for pendente lite relief, including interim counsel fees;
(ii) compliance with the requirement of compulsory financial disclosure, including the exchange and filing of a supplemental statement of net worth indicating material changes in any previously exchanged and filed statement of net worth;
(iii) simplification and limitation of the issues;
(iv) the establishment of a timetable for the completion of all disclosure proceedings, provided that all such procedures must be completed and the note of issue filed within six months from the commencement of the conference, unless otherwise shortened or extended by the court depending upon the circumstances of the case;
(v) the completion of a preliminary conference order substantially in the form contained in Appendix "G " to these rules, with attachments; and
(vi) any other matters which the court shall deem appropriate.
(3) At the close of the conference, the court shall direct the parties to stipulate, in writing or on the record, as to all resolved issues, which the court then shall "so order," and as to all issues with respect to fault, custody and finance that remain unresolved. Any issues with respect to fault, custody and finance that are not specifically described in writing or on the record at that time may not be raised in the action unless good cause is shown. The court shall fix a schedule for discovery as to all unresolved issues and, in a noncomplex case, shall schedule a date for trial not later than six months from the date of the conference. The court may appoint an attorney for the infant children, or may direct the parties to file with the court, within 30 days of the conference, a list of suitable attorneys for children for selection by the court. The court also may direct that a list of expert witnesses be filed with the court within 30 days of the conference from which the court may select a neutral expert to assist the court. The court shall schedule a compliance conference unless the court dispenses with the conference based upon a stipulation of compliance filed by the parties. Unless the court excuses their presence, the parties personally must be present in court at the time of the compliance conference. If the parties are present in court, the judge personally shall address them at some time during the conference.
(g) Expert Witnesses.
(1) Responses to demands for expert information pursuant to CPLR section 3101(d) shall be served within 20 days following service of such demands.
(2) Each expert witness whom a party expects to call at the trial shall file with the court a
10 written report, which shall be exchanged and filed with the court no later than 60 days before the date set for trial, and reply reports, if any, shall be exchanged and filed no later than 30 days before such date. Failure to file with the court a report in conformance with these requirements may, in the court's discretion, preclude the use of the expert. Except for good cause shown, the reports exchanged between the parties shall be the only reports admissable at trial. Late retention of experts and consequent late submission of reports shall be permitted only upon a showing of good cause as authorized by CPLR 3101(d)(1)(i). In the discretion of the court, written reports may be used to substitute for direct testimony at the trial, but the reports shall be submitted by the expert under oath, and the expert shall be present and available for cross- examination. In the discretion of the court, in a proper case, parties may be bound by the expert's report in their direct case.
(h) Statement of Proposed Disposition.
(1) Each party shall exchange a statement setting forth the following:
(i) the assets claimed to be marital property;
(ii) the assets claimed to be separate property;
(iii) an allocation of debts or liabilities to specific marital or separate assets, where appropriate;
(iv) the amount requested for maintenance, indicating and elaborating upon the statutory factors forming the basis for the maintenance request;
(v) the proposal for equitable distribution, where appropriate, indicating and elaborating upon the statutory factors forming the basis for the proposed distribution;
(vi) the proposal for a distributive award, if requested, including a showing of the need for a distributive award;
(vii) the proposed plan for child support, indicating and elaborating upon the statutory factors upon which the proposal is based; and
(viii) the proposed plan for custody and visitation of any children involved in the proceeding, setting forth the reasons therefor.
(2) A copy of any written agreement entered into by the parties relating to financial arrangements or custody or visitation shall be annexed to the statement referred to in paragraph (1) of this subdivision.
(3) The statement referred to in paragraph (1) of this subdivision, with proof of service upon the other party, shall, with the note of issue, be filed with the court. The other party, if he or she has not already done so, shall file with the court a statement complying with paragraph (1) of
11 this subdivision within 20 days of such service.
(i) Filing of Note of Issue.
No action or proceeding to which this section is applicable shall be deemed ready for trial unless there is compliance with this section by the party filing the note of issue and certificate of readiness.
(j) Referral to Family Court.
In all actions or proceedings to which this section is applicable referred to the Family Court by the Supreme Court pursuant to section 464 of the Family Court Act, all statements, including supplemental statements, exchanged and filed by the parties pursuant to this section shall be transmitted to the Family Court with the order of referral.
(k) Motions for Alimony, Maintenance, Counsel Fees Pendente Lite and Child support (other than under section 237(c) or 238 of the Domestic Relations Law).
Unless, on application made to the court, the requirements of this subdivision be waived for good cause shown, or unless otherwise expressly provided by any provision of the CPLR or other statute, the following requirements shall govern motions for alimony, maintenance, counsel fees (other than a motion made pursuant to section 237(c) or 238 of the Domestic Relations Law for counsel fees for services rendered by an attorney to secure the enforcement of a previously granted order or decree) or child support or any modification of an award thereof:
(1) Such motion shall be made before or at the preliminary conference, if practicable.
(2) No motion shall be heard unless the moving papers include a statement of net worth in the official form prescribed by subdivision (b) of this section.
(3) No motion for counsel fees and expenses shall be heard unless the moving papers also include the affidavit of the movant's attorney stating the moneys, if any, received on account of such attorney's fee from the movant or any other person on behalf of the movant, the hourly amount charged by the attorney, the amounts paid, or to be paid, to counsel and any experts, and any additional costs, disbursements or expenses, and the moneys such attorney has been promised by, or the agreement made with, the movant or other persons on behalf of the movant, concerning or in payment of the fee. Fees and expenses of experts shall include appraisal, accounting, actuarial, investigative and other fees and expenses to enable a spouse to carry on or defend a matrimonial action or proceeding in the Supreme Court.
(4) The party opposing any motion shall be deemed to have admitted, for the purpose of the motion but not otherwise, such facts set forth in the moving party's statement of net worth as are not controverted in:
12 (i) a statement of net worth, in the official form prescribed by this section, completed and sworn to by the opposing party, and made a part of the answering papers; or
(ii) other sworn statements or affidavits with respect to any fact which is not feasible to controvert in the opposing party's statement of net worth.
(5) The failure to comply with the provisions of this subdivision shall be good cause, in the discretion of the judge presiding, either:
(i) to draw an inference favorable to the adverse party with respect to any disputed fact or issue affected by such failure; or
(ii) to deny the motion without prejudice to renewal upon compliance with the provisions of this section.
(6) The notice of motion submitted with any motion for or related to interim maintenance or child support shall contain a notation indicating the nature of the motion. Any such motion shall be determined within 30 days after the motion is submitted for decision.
(7) Upon any application for an award of counsel fees or fees and expenses of experts made prior to the conclusion of the trial of the action, the court shall set forth in specific detail, in writing or on the record, the factors it considered and the reasons for its decision.
(l) Hearings or trials pertaining to temporary or permanent custody or visitation shall proceed from day to day conclusion. With respect to other issues before the court, to the extent feasible, trial should proceed from day to day to conclusion.
Section 202.16a Matrimonial Actions; Automatic Orders
(a) Applicability. This section shall be applicable to all matrimonial actions and proceedings in the Supreme Court authorized by section 236(2) of the Domestic Relations Law.
(b) Service. The plaintiff in a matrimonial action shall cause to be served upon the defendant, simultaneous with the service of the summons, a copy of the automatic orders set forth in this section in a notice that substantially conforms to the notice contained in Appendix F. The notice shall state legibly on its face that automatic orders have been entered against the parties named in the summons or in the summons and complaint pursuant to this rule, and that failure to comply with these orders may be deemed a contempt of court. The automatic orders shall be binding upon the plaintiff immediately upon filing of the summons, or summons and complaint, and upon the defendant immediately upon service of the automatic orders with the summons. The orders shall remain in full force and effect during the pendency of the action unless terminated, modified or amended by further order of the court or upon written agreement between the parties.
13 (c) Automatic Orders. The automatic orders served with the summons shall provide as follows:
Upon service of the summons in every matrimonial action, it is hereby ordered that:
(1) Neither part shall sell, transfer, encumber, conceal, assign, remove or in any way dispose of, without the consent of the other party in writing, or by order of the court, any property (including, but not limited to, real estate, personal property, cash accounts, stocks, mutual funds, bank accounts, cars and boats) individually or jointly held by the parties, except in the usual course of business, for customary and usual household expenses or for reasonable attorney's fees in connection with this action.
(2) Neither party shall transfer, encumber, assign, remove, withdraw or in any way dispose of any tax deferred funds, stocks or other assets held in any individual retirement accounts, 401K accounts, profit sharing plans, Keogh accounts, or any other pension or retirement account, and the parties shall further refrain from applying for or requesting the payment of retirement benefits or annuity payments of any kind, without the consent of the other party in writing, or upon further order of the court, except that any party who is already in pay status may continue to receive such payments thereunder.
(3) Neither party shall incur unreasonable debts hereafter, including but not limited to further borrowing against any credit line secured by the family residence, further encumbrancing any assets, or unreasonably using credit cards or cash advances against credit cards, except in the usual course of business or for customary or usual household expenses, or for reasonable attorney's fees in connection with this action.
(4) Neither party shall cause the other party or the children of the marriage to be removed from any existing medical, hospital and dental insurance coverage, and each party shall maintain the existing medical, hospital and dental insurance coverage in full force and effect.
(5) Neither party shall change the beneficiaries of any existing life insurance policies, and each party shall maintain the existing life insurance, automobile insurance, homeowners and renters insurance policies in full force and effect.
(6) These automatic orders shall remain in full force and effect during the pendency of the action unless terminated, modified or amended by further order of the court or upon written agreement between the parties.
(7) The failure to obey these automatic orders may be deemed a contempt of court.
Note: there is no discovery regarding grounds or child custody and visitation in the First or Second Departments (unless the grounds rise to the level of egregious conduct, for which there is discovery). There is discovery regarding grounds and child custody and visitation in the Third and Fourth Departments.
14 DRL § 236(B)(4)
4. Compulsory financial disclosure. a. In all matrimonial actions and proceedings in which alimony, maintenance or support is in issue, there shall be compulsory disclosure by both parties of their respective financial states. No showing of special circumstances shall be required before such disclosure is ordered. A sworn statement of net worth shall be provided upon receipt of a notice in writing demanding the same, within twenty days after the receipt thereof. In the event said statement is not demanded, it shall be filed with the clerk of the court by each party, within ten days after joinder of issue, in the court in which the proceeding is pending. As used in this part, the term “net worth” shall mean the amount by which total assets including income exceed total liabilities including fixed financial obligations. It shall include all income and assets of whatsoever kind and nature and wherever situated and shall include a list of all assets transferred in any manner during the preceding three years, or the length of the marriage, whichever is shorter; provided, however that transfers in the routine course of business which resulted in an exchange of assets of substantially equivalent value need not be specifically disclosed where such assets are otherwise identified in the statement of net worth. All such sworn statements of net worth shall be accompanied by a current and representative paycheck stub and the most recently filed state and federal income tax returns including a copy of the W-2(s) wage and tax statement(s) submitted with the returns. In addition, both parties shall provide information relating to any and all group health plans available to them for the provision of care or other medical benefits by insurance or otherwise for the benefit of the child or children for whom support is sought, including all such information as may be required to be included in a qualified medical child support order as defined in section six hundred nine of the employee retirement income security act of 1974 (29 USC 1169) including, but not limited to: (i) the name and last known mailing address of each party and of each dependent to be covered by the order; (ii) the identification and a description of each group health plan available for the benefit or coverage of the disclosing party and the child or children for whom support is sought; (iii) a detailed description of the type of coverage available from each group health plan for the potential benefit of each such dependent; (iv) the identification of the plan administrator for each such group health plan and the address of such administrator; (v) the identification numbers for each such group health plan; and (vi) such other information as may be required by the court. Noncompliance shall be punishable by any or all of the penalties prescribed in section thirty-one hundred twenty-six of the civil practice law and rules, in examination before or during trial.
15 CUSTODY AND VISITATION
1. Governed by DRL § 240: standard of “best interests of the child”
2. There is no presumption of joint custody: The Court cannot order joint custody when the parties have a demonstrated inability to cooperate on matters concerning the children. (See, e.g., Matter of Solovay v. Solovay, 94 AD3d 898 (2d Dept. 2012).
3. Factors considered in making a custody and/or visitation award: a. The effect of domestic violence upon the child (DRL § 240) b. Which parent has acted as the primary caretaker for the child. c. The ability of each parent to provide for the child's emotional and intellectual development, the quality of the home environment, and the parental guidance to be provided. d. The mental health of the parent. e. A parent’s conduct, stability, lifestyle, morality, financial status, professional achievements, and personal associations are relevant in assessing parental fitness. f. Past parental performance. g. The availability of the parents to care for the children. h. A parent’s ability to foster the child’s relationship with the other parent.
McKinney's DRL § 240 § 240. Custody and child support; orders of protection
1. (a) In any action or proceeding brought (1) to annul a marriage or to declare the nullity of a void marriage, or (2) for a separation, or (3) for a divorce, or (4) to obtain, by a writ of habeas corpus or by petition and order to show cause, the custody of or right to visitation with any child of a marriage, the court shall require verification of the status of any child of the marriage with respect to such child's custody and support, including any prior orders, and shall enter orders for custody and support as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties and to the best interests of the child and subject to the provisions of subdivision one-c of this section. Where either party to an action concerning custody of or a right to visitation with a child alleges in a sworn petition or complaint or sworn answer, cross-petition, counterclaim or other sworn responsive pleading that the other party has committed an act of domestic violence against the party making the allegation or a family or household member of either party, as such family or household member is defined in article eight of the family court act, and such allegations are proven by a preponderance of the evidence, the court must consider the effect of such domestic violence upon the best interests of the child, together with such other facts and circumstances as the court deems relevant in making a direction pursuant to this section and state on the record how such findings, facts and circumstances factored into the direction. If a parent makes a good faith allegation based on a reasonable belief supported by facts that the child is the victim of child abuse, child neglect, or the effects of domestic violence, and if that parent acts lawfully and in good faith in response to that reasonable belief to protect the child or seek treatment for the child, then that parent shall not be deprived of custody, visitation or contact with the child, or restricted in custody, visitation or
16 contact, based solely on that belief or the reasonable actions taken based on that belief. If an allegation that a child is abused is supported by a preponderance of the evidence, then the court shall consider such evidence of abuse in determining the visitation arrangement that is in the best interest of the child, and the court shall not place a child in the custody of a parent who presents a substantial risk of harm to that child, and shall state on the record how such findings were factored into the determination. An order directing the payment of child support shall contain the social security numbers of the named parties. In all cases there shall be no prima facie right to the custody of the child in either parent. Such direction shall make provision for child support out of the property of either or both parents. The court shall make its award for child support pursuant to subdivision one-b of this section. Such direction may provide for reasonable visitation rights to the maternal and/or paternal grandparents of any child of the parties. Such direction as it applies to rights of visitation with a child remanded or placed in the care of a person, official, agency or institution pursuant to article ten of the family court act, or pursuant to an instrument approved under section three hundred fifty-eight-a of the social services law, shall be enforceable pursuant to part eight of article ten of the family court act and sections three hundred fifty-eight-a and three hundred eighty-four-a of the social services law and other applicable provisions of law against any person having care and custody, or temporary care and custody, of the child. Notwithstanding any other provision of law, any written application or motion to the court for the establishment, modification or enforcement of a child support obligation for persons not in receipt of public assistance and care must contain either a request for child support enforcement services which would authorize the collection of the support obligation by the immediate issuance of an income execution for support enforcement as provided for by this chapter, completed in the manner specified in section one hundred eleven-g of the social services law; or a statement that the applicant has applied for or is in receipt of such services; or a statement that the applicant knows of the availability of such services, has declined them at this time and where support enforcement services pursuant to section one hundred eleven-g of the social services law have been declined that the applicant understands that an income deduction order may be issued pursuant to subdivision (c) of section fifty-two hundred forty-two of the civil practice law and rules without other child support enforcement services and that payment of an administrative fee may be required. The court shall provide a copy of any such request for child support enforcement services to the support collection unit of the appropriate social services district any time it directs payments to be made to such support collection unit. Additionally, the copy of any such request shall be accompanied by the name, address and social security number of the parties; the date and place of the parties' marriage; the name and date of birth of the child or children; and the name and address of the employers and income payors of the party from whom child support is sought or from the party ordered to pay child support to the other party. Such direction may require the payment of a sum or sums of money either directly to the custodial parent or to third persons for goods or services furnished for such child, or for both payments to the custodial parent and to such third persons; provided, however, that unless the party seeking or receiving child support has applied for or is receiving such services, the court shall not direct such payments to be made to the support collection unit, as established in section one hundred eleven-h of the social services law. Every order directing the payment of support shall require that if either parent currently, or at any time in the future, has health insurance benefits available that may be extended or obtained to cover the child, such parent is required to exercise the option of additional coverage in favor of such child and execute and deliver to such person any forms, notices, documents or instruments
17 necessary to assure timely payment of any health insurance claims for such child.
(a-1)(1) Permanent and initial temporary orders of custody or visitation. Prior to the issuance of any permanent or initial temporary order of custody or visitation, the court shall conduct a review of the decisions and reports listed in subparagraph three of this paragraph.
(2) Successive temporary orders of custody or visitation. Prior to the issuance of any successive temporary order of custody or visitation, the court shall conduct a review of the decisions and reports listed in subparagraph three of this paragraph, unless such a review has been conducted within ninety days prior to the issuance of such order.
(3) Decisions and reports for review. The court shall conduct a review of the following: (i) related decisions in court proceedings initiated pursuant to article ten of the family court act, and all warrants issued under the family court act; and (ii) reports of the statewide computerized registry of orders of protection established and maintained pursuant to section two hundred twenty-one-a of the executive law, and reports of the sex offender registry established and maintained pursuant to section one hundred sixty-eight-b of the correction law.
(4) Notifying counsel and issuing orders. Upon consideration of decisions pursuant to article ten of the family court act, and registry reports and notifying counsel involved in the proceeding, or in the event of a self-represented party, notifying such party of the results thereof, including any court appointed attorney for children, the court may issue a temporary, successive temporary or final order of custody or visitation.
(5) Temporary emergency order. Notwithstanding any other provision of the law, upon emergency situations, including computer malfunctions, to serve the best interest of the child, the court may issue a temporary emergency order for custody or visitation in the event that it is not possible to timely review decisions and reports on registries as required pursuant to subparagraph three of this paragraph.
(6) After issuing a temporary emergency order. After issuing a temporary emergency order of custody or visitation, the court shall conduct reviews of the decisions and reports on registries as required pursuant to subparagraph three of this paragraph within twenty-four hours of the issuance of such temporary emergency order. Should such twenty-four hour period fall on a day when court is not in session, then the required reviews shall take place the next day the court is in session. Upon reviewing decisions and reports the court shall notify associated counsel, self- represented parties and attorneys for children pursuant to subparagraph four of this paragraph and may issue temporary or permanent custody or visitation orders.
18 Relocation of the child and custodial parent
Leading case: Tropea v. Tropea, 87 N.Y.2d 727 (1996): “Each relocation request must be considered on its own merits with due consideration of all the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child. While the respective rights of the custodial and noncustodial parents are unquestionably significant factors that must be considered (see, Strahl v. Strahl, 66 A.D.2d 571, 414 N.Y.S.2d 184, affd 49 N.Y.2d 1036, 429 N.Y.S.2d 635, 407 N.E.2d 479, supra ), it is the rights and needs of the children that must be accorded the greatest weight, since they are innocent victims of their parents' decision to divorce and are the least equipped to handle the stresses of the changing family situation.”
19 CHILD SUPPORT Child Support Standards Act (CSSA): DRL § 240 Pendente lite (while the case is pending): The Court may apply the CSSA, but is not required to After trial: Must apply the CSSA Child support is awarded and paid to the custodial parent until age 21 in New York State.
See annexed Child Support Worksheets for child support calculations (available at http://courts.state.ny.us/divorce/divorce_withchildrenunder21.shtml#ucdforms)
In addition to “basic child support,” the following are mandatory “add-on’s”, additional expenses paid by each parent above and beyond the basic child support in proportion to each party’s income: 1. Unreimbursed medical expenses (including the cost of covering the child or children on health insurance). 2. Childcare which entitles the custodial parent to work or complete education to obtain work.
In addition to “basic child support,” the following are discretionary “add-on’s”, additional expenses which the parties may agree to pay, or the Court may order each parent to pay: 1. Post-secondary, private, special, or enriched education for the child or children. 2. Childcare which entitles the custodial parent to seek employment.
Agreements: Must strictly comply with the statutory language, including any deviation from the CSSA formula, or 1. Judgment may not be approved by the Court; 2. Agreement may be vacated years later.
McKinney's DRL § 240 § 240. Custody and child support (only part of statute cited below)
1. (a) In any action or proceeding brought (1) to annul a marriage or to declare the nullity of a void marriage, or (2) for a separation, or (3) for a divorce, or (4) to obtain, by a writ of habeas corpus or by petition and order to show cause, the custody of or right to visitation with any child of a marriage, the court shall require verification of the status of any child of the marriage with respect to such child's custody and support, including any prior orders, and shall enter orders for custody and support as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties and to the best interests of the child and subject to the provisions of subdivision one-c of this section. …An order directing the payment of child support shall contain the social security numbers of the named parties. In all cases there shall be no prima facie right to the custody of the child in either parent. Such direction shall make provision for child support out of the property of either or both parents. The court shall make its award for child support pursuant to subdivision one-b of this section.
(b) As used in this section, the following terms shall have the following meanings: (1) “Health insurance benefits” means any medical, dental, optical and prescription drugs and health care services or other health care benefits that may be provided for a dependent through an
20 employer or organization, including such employers or organizations which are self insured, or through other available health insurance or health care coverage plans. (2) “Available health insurance benefits” means any health insurance benefits that are reasonable in cost and that are reasonably accessible to the person on whose behalf the petition is brought. Health insurance benefits that are not reasonable in cost or whose services are not reasonably accessible to such person, shall be considered unavailable. (3) When the person on whose behalf the petition is brought is a child in accordance with paragraph (c) of this subdivision, health insurance benefits shall be considered “reasonable in cost” if the cost of health insurance benefits does not exceed five percent of the combined parental gross income. The cost of health insurance benefits shall refer to the cost of the premium and deductible attributable to adding the child or children to existing coverage or the difference between such costs for self-only and family coverage. Provided, however, the presumption that the health insurance benefits are reasonable in cost may be rebutted upon a finding that the cost is unjust or inappropriate which finding shall be based on the circumstances of the case, the cost and comprehensiveness of the health insurance benefits for which the child or children may otherwise be eligible, and the best interests of the child or children. In no instance shall health insurance benefits be considered “reasonable in cost” if a parent's share of the cost of extending such coverage would reduce the income of that parent below the self- support reserve. Health insurance benefits are “reasonably accessible” if the child lives within the geographic area covered by the plan or lives within thirty minutes or thirty miles of travel time from the child's residence to the services covered by the health insurance benefits or through benefits provided under a reciprocal agreement; provided, however, this presumption may be rebutted for good cause shown including, but not limited to, the special health needs of the child. The court shall set forth such finding and the reasons therefor in the order of support.
(c) When the person on whose behalf the petition is brought is a child, the court shall consider the availability of health insurance benefits to all parties and shall take the following action to ensure that health insurance benefits are provided for the benefit of the child: (1) Where the child is presently covered by health insurance benefits, the court shall direct in the order of support that such coverage be maintained, unless either parent requests the court to make a direction for health insurance benefits coverage pursuant to paragraph two of this subdivision. (2) Where the child is not presently covered by health insurance benefits, the court shall make a determination as follows: (i) If only one parent has available health insurance benefits, the court shall direct in the order of support that such parent provide health insurance benefits. (ii) If both parents have available health insurance benefits the court shall direct in the order of support that either parent or both parents provide such health insurance. The court shall make such determination based on the circumstances of the case, including, but not limited to, the cost and comprehensiveness of the respective health insurance benefits and the best interests of the child. (iii) If neither parent has available health insurance benefits, the court shall direct in the order of support that the custodial parent apply for the state's child health insurance plan pursuant to title one-A of article twenty-five of the public health law and the medical assistance program established pursuant to title eleven of article five of the social services law. A direction issued under this subdivision shall not limit or alter either parent's obligation to obtain health insurance
21 benefits at such time as they become available, as required pursuant to paragraph (a) of this subdivision. Nothing in this subdivision shall alter or limit the authority of the medical assistance program to determine when it is considered cost effective to require a custodial parent to enroll a child in an available group health insurance plan pursuant to paragraphs (b) and (c) of subdivision one of section three hundred sixty-seven-a of the social services law.
(d) The cost of providing health insurance benefits or benefits under the state's child health insurance plan or the medical assistance program, pursuant to paragraph (c) of this subdivision, shall be deemed cash medical support, and the court shall determine the obligation of either or both parents to contribute to the cost thereof pursuant to subparagraph five of paragraph (c) of subdivision one-b of this section.
(e) The court shall provide in the order of support that the legally responsible relative immediately notify the other party, or the other party and the support collection unit when the order is issued on behalf of a child in receipt of public assistance and care or in receipt of services pursuant to section one hundred eleven-g of the social services law, of any change in health insurance benefits, including any termination of benefits, change in the health insurance benefit carrier, premium, or extent and availability of existing or new benefits.
(f) Where the court determines that health insurance benefits are available, the court shall provide in the order of support that the legally responsible relative immediately enroll the eligible dependents named in the order who are otherwise eligible for such benefits without regard to any seasonal enrollment restrictions. Such order shall further direct the legally responsible relative to maintain such benefits as long as they remain available to such relative. Such order shall further direct the legally responsible relative to assign all insurance reimbursement payments for health care expenses incurred for his or her eligible dependents to the provider of such services or the party actually having incurred and satisfied such expenses, as appropriate.
(g) When the court issues an order of child support or combined child and spousal support on behalf of persons in receipt of public assistance and care or in receipt of services pursuant to section one hundred eleven-g of the social services law, such order shall further direct that the provision of health care benefits shall be immediately enforced pursuant to section fifty-two hundred forty-one of the civil practice law and rules.
(h) When the court issues an order of child support or combined child and spousal support on behalf of persons other than those in receipt of public assistance and care or in receipt of services pursuant to section one hundred eleven-g of the social services law, the court shall also issue a separate order which shall include the necessary direction to ensure the order's characterization as a qualified medical child support order as defined by section six hundred nine of the employee retirement income security act of 1974 (29 USC 1169). Such order shall: (i) clearly state that it creates or recognizes the existence of the right of the named dependent to be enrolled and to receive benefits for which the legally responsible relative is eligible under the available group health plans, and shall clearly specify the name, social security number and mailing address of the legally responsible relative, and of each dependent to be covered by the order; (ii) provide a clear description of the type of coverage to be provided by the group health plan to each such
22 dependent or the manner in which the type of coverage is to be determined; and (iii) specify the period of time to which the order applies. The court shall not require the group health plan to provide any type or form of benefit or option not otherwise provided under the group health plan except to the extent necessary to meet the requirements of a law relating to medical child support described in section one thousand three hundred and ninety-six g of title forty-two of the United States code.
(i) Upon a finding that a legally responsible relative wilfully failed to obtain health insurance benefits in violation of a court order, such relative will be presumptively liable for all health care expenses incurred on behalf of such dependents from the first date such dependents were eligible to be enrolled to receive health insurance benefits after the issuance of the order of support directing the acquisition of such coverage.
(j) The order shall be effective as of the date of the application therefor, and any retroactive amount of child support due shall be support arrears/past due support and shall, except as provided for herein, be paid in one lump sum or periodic sums, as the court shall direct, taking into account any amount of temporary support which has been paid. In addition, such retroactive child support shall be enforceable in any manner provided by law including, but not limited to, an execution for support enforcement pursuant to subdivision (b) of section fifty-two hundred forty-one of the civil practice law and rules. When a child receiving support is a public assistance recipient, or the order of support is being enforced or is to be enforced pursuant to section one hundred eleven-g of the social services law, the court shall establish the amount of retroactive child support and notify the parties that such amount shall be enforced by the support collection unit pursuant to an execution for support enforcement as provided for in subdivision (b) of section fifty-two hundred forty-one of the civil practice law and rules, or in such periodic payments as would have been authorized had such an execution been issued. In such case, the courts shall not direct the schedule of repayment of retroactive support. Where such direction is for child support and paternity has been established by a voluntary acknowledgement of paternity as defined in section forty-one hundred thirty-five-b of the public health law, the court shall inquire of the parties whether the acknowledgement has been duly filed, and unless satisfied that it has been so filed shall require the clerk of the court to file such acknowledgement with the appropriate registrar within five business days. Such direction may be made in the final judgment in such action or proceeding, or by one or more orders from time to time before or subsequent to final judgment, or by both such order or orders and the final judgment. Such direction may be made notwithstanding that the court for any reason whatsoever, other than lack of jurisdiction, refuses to grant the relief requested in the action or proceeding. Any order or judgment made as in this section provided may combine in one lump sum any amount payable to the custodial parent under this section with any amount payable to such parent under section two hundred thirty-six of this article. Upon the application of either parent, or of any other person or party having the care, custody and control of such child pursuant to such judgment or order, after such notice to the other party, parties or persons having such care, custody and control and given in such manner as the court shall direct, the court may annul or modify any such direction, whether made by order or final judgment, or in case no such direction shall have been made in the final judgment may, with respect to any judgment of annulment or declaring the nullity of a void marriage rendered on or after September first, nineteen hundred forty, or any judgment of separation or divorce whenever rendered, amend the judgment by inserting such direction.
23 Subject to the provisions of section two hundred forty-four of this article, no such modification or annulment shall reduce or annul arrears accrued prior to the making of such application unless the defaulting party shows good cause for failure to make application for relief from the judgment or order directing such payment prior to the accrual of such arrears. Such modification may increase such child support nunc pro tunc as of the date of application based on newly discovered evidence. Any retroactive amount of child support due shall be support arrears/past due support and shall be paid in one lump sum or periodic sums, as the court shall direct, taking into account any amount of temporary child support which has been paid. In addition, such retroactive child support shall be enforceable in any manner provided by law including, but not limited to, an execution for support enforcement pursuant to subdivision (b) of section fifty-two hundred forty-one of the civil practice law and rules.
…..
1-b. (a) The court shall make its award for child support pursuant to the provisions of this subdivision. The court may vary from the amount of the basic child support obligation determined pursuant to paragraph (c) of this subdivision only in accordance with paragraph (f) of this subdivision.
(b) For purposes of this subdivision, the following definitions shall be used: (1) “Basic child support obligation” shall mean the sum derived by adding the amounts determined by the application of subparagraphs two and three of paragraph (c) of this subdivision except as increased pursuant to subparagraphs four, five, six and seven of such paragraph. (2) “Child support” shall mean a sum to be paid pursuant to court order or decree by either or both parents or pursuant to a valid agreement between the parties for care, maintenance and education of any unemancipated child under the age of twenty-one years. (3) “Child support percentage” shall mean: (i) seventeen percent of the combined parental income for one child; (ii) twenty-five percent of the combined parental income for two children; (iii) twenty-nine percent of the combined parental income for three children; (iv) thirty-one percent of the combined parental income for four children; and (v) no less than thirty-five percent of the combined parental income for five or more children. (4) “Combined parental income” shall mean the sum of the income of both parents. (5) “Income” shall mean, but shall not be limited to, the sum of the amounts determined by the application of clauses (i), (ii), (iii), (iv), (v) and (vi) of this subparagraph reduced by the amount determined by the application of clause (vii) of this subparagraph: (i) gross (total) income as should have been or should be reported in the most recent federal income tax return. If an individual files his/her federal income tax return as a married person filing jointly, such person shall be required to prepare a form, sworn to under penalty of law, disclosing his/her gross income individually; (ii) to the extent not already included in gross income in clause (i) of this subparagraph, investment income reduced by sums expended in connection with such investment; (iii) to the extent not already included in gross income in clauses (i) and (ii) of this subparagraph, the amount of income or compensation voluntarily deferred and income received, if any, from the following sources:
24 (A) workers' compensation, (B) disability benefits, (C) unemployment insurance benefits, (D) social security benefits, (E) veterans benefits, (F) pensions and retirement benefits, (G) fellowships and stipends, and (H) annuity payments; (iv) at the discretion of the court, the court may attribute or impute income from, such other resources as may be available to the parent, including, but not limited to: (A) non-income producing assets, (B) meals, lodging, memberships, automobiles or other perquisites that are provided as part of compensation for employment to the extent that such perquisites constitute expenditures for personal use, or which expenditures directly or indirecly2 confer personal economic benefits, (C) fringe benefits provided as part of compensation for employment, and (D) money, goods, or services provided by relatives and friends; (v) an amount imputed as income based upon the parent's former resources or income, if the court determines that a parent has reduced resources or income in order to reduce or avoid the parent's obligation for child support; (vi) to the extent not already included in gross income in clauses (i) and (ii) of this subparagraph, the following self-employment deductions attributable to self-employment carried on by the taxpayer: (A) any depreciation deduction greater than depreciation calculated on a straight-line basis for the purpose of determining business income or investment credits, and (B) entertainment and travel allowances deducted from business income to the extent said allowances reduce personal expenditures; (vii) the following shall be deducted from income prior to applying the provisions of paragraph (c) of this subdivision: (A) unreimbursed employee business expenses except to the extent said expenses reduce personal expenditures, (B) alimony or maintenance actually paid to a spouse not a party to the instant action pursuant to court order or validly executed written agreement, (C) alimony or maintenance actually paid or to be paid to a spouse that is a party to the instant action pursuant to an existing court order or contained in the order to be entered by the court, or pursuant to a validly executed written agreement, provided the order or agreement provides for a specific adjustment, in accordance with this subdivision, in the amount of child support payable upon the termination of alimony or maintenance to such spouse, (D) child support actually paid pursuant to court order or written agreement on behalf of any child for whom the parent has a legal duty of support and who is not subject to the instant action, (E) public assistance, (F) supplemental security income, (G) New York city or Yonkers income or earnings taxes actually paid, and (H) federal insurance contributions act (FICA) taxes actually paid. (6) “Self-support reserve” shall mean one hundred thirty-five percent of the poverty income guidelines amount for a single person as reported by the federal department of health and human services. For the calendar year nineteen hundred eighty-nine, the self-support reserve shall be
25 eight thousand sixty-five dollars. On March first of each year, the self-support reserve shall be revised to reflect the annual updating of the poverty income guidelines as reported by the federal department of health and human services for a single person household.
(c) The amount of the basic child support obligation shall be determined in accordance with the provision of this paragraph: (1) The court shall determine the combined parental income. (2) The court shall multiply the combined parental income up to the amount set forth in paragraph (b) of subdivision two of section one hundred eleven-i of the social services law by the appropriate child support percentage and such amount shall be prorated in the same proportion as each parent's income is to the combined parental income. (3) Where the combined parental income exceeds the dollar amount set forth in subparagraph two of this paragraph, the court shall determine the amount of child support for the amount of the combined parental income in excess of such dollar amount through consideration of the factors set forth in paragraph (f) of this subdivision and/or the child support percentage. (4) Where the custodial parent is working, or receiving elementary or secondary education, or higher education or vocational training which the court determines will lead to employment, and incurs child care expenses as a result thereof, the court shall determine reasonable child care expenses and such child care expenses, where incurred, shall be prorated in the same proportion as each parent's income is to the combined parental income. Each parent's pro rata share of the child care expenses shall be separately stated and added to the sum of subparagraphs two and three of this paragraph. (5) the court shall determine the parties' obligation to provide health insurance benefits pursuant to this section and to pay cash medical support as provided under this subparagraph. (i) “Cash medical support” means an amount ordered to be paid toward the cost of health insurance provided by a public entity or by a parent through an employer or organization, including such employers or organizations which are self insured, or through other available health insurance or health care coverage plans, and/or for other health care expenses not covered by insurance. (ii) Where health insurance benefits pursuant to subparagraph one and clauses (i) and (ii) of subparagraph two of paragraph (c) of subdivision one of this section are determined by the court to be available, the cost of providing health insurance benefits shall be prorated between the parties in the same proportion as each parent's income is to the combined parental income. If the custodial parent is ordered to provide such benefits, the non-custodial parent's pro rata share of such costs shall be added to the basic support obligation. If the non-custodial parent is ordered to provide such benefits, the custodial parent's pro rata share of such costs shall be deducted from the basic support obligation. (iii) Where health insurance benefits pursuant to subparagraph one and clauses (i) and (ii) of subparagraph two of paragraph (c) of subdivision one of this section are determined by the court to be unavailable, if the child or children are determined eligible for coverage under the medical assistance program established pursuant to title eleven of article five of the social services law, the court shall order the non-custodial parent to pay cash medical support as follows: (A) In the case of a child or children authorized for managed care coverage under the medical assistance program, the lesser of the amount that would be required as a family contribution under the state's child health insurance plan pursuant to title one-A of article twenty-five of the public health law for the child or children if they were in a two-parent household with income
26 equal to the combined income of the non-custodial and custodial parents or the premium paid by the medical assistance program on behalf of the child or children to the managed care plan. The court shall separately state the non-custodial parent's monthly obligation. The non-custodial parent's cash medical support obligation under this clause shall not exceed five percent of his or her gross income, or the difference between the non-custodial parent's income and the self- support reserve, whichever is less. (B) In the case of a child or children authorized for fee-for-service coverage under the medical assistance program other than a child or children described in item (A) of this clause, the court shall determine the non-custodial parent's maximum annual cash medical support obligation, which shall be equal to the lesser of the monthly amount that would be required as a family contribution under the state's child health insurance plan pursuant to title one-A of article twenty- five of the public health law for the child or children if they were in a two-parent household with income equal to the combined income of the non-custodial and custodial parents times twelve months or the number of months that the child or children are authorized for fee-for-service coverage during any year. The court shall separately state in the order the non-custodial parent's maximum annual cash medical support obligation and, upon proof to the court that the non- custodial parent, after notice of the amount due, has failed to pay the public entity for incurred health care expenses, the court shall order the non-custodial parent to pay such incurred health care expenses up to the maximum annual cash medical support obligation. Such amounts shall be support arrears/past due support and shall be subject to any remedies as provided by law for the enforcement of support arrears/past due support. The total annual amount that the non-custodial parent is ordered to pay under this clause shall not exceed five percent of his or her gross income or the difference between the non-custodial parent's income and the self-support reserve, whichever is less. (C) The court shall order cash medical support to be paid by the non-custodial parent for health care expenses of the child or children paid by the medical assistance program prior to the issuance of the court's order. The amount of such support shall be calculated as provided under item (A) or (B) of this clause, provided that the amount that the non-custodial parent is ordered to pay under this item shall not exceed five percent of his or her gross income or the difference between the non-custodial parent's income and the self-support reserve, whichever is less, for the year when the expense was incurred. Such amounts shall be support arrears/past due support and shall be subject to any remedies as provided by law for the enforcement of support arrears/past due support. (iv) Where health insurance benefits pursuant to subparagraph one and clauses (i) and (ii) of subparagraph two of paragraph (c) of subdivision one of this section are determined by the court to be unavailable, and the child or children are determined eligible for coverage under the state's child health insurance plan pursuant to title one-A of article twenty-five of the public health law, the court shall prorate each parent's share of the cost of the family contribution required under such child health insurance plan in the same proportion as each parent's income is to the combined parental income, and state the amount of the non-custodial parent's share in the order. The total amount of cash medical support that the non-custodial parent is ordered to pay under this clause shall not exceed five percent of his or her gross income, or the difference between the non-custodial parent's income and the self-support reserve, whichever is less. (v) In addition to the amounts ordered under clause (ii), (iii), or (iv), the court shall pro rate each parent's share of reasonable health care expenses not reimbursed or paid by insurance, the medical assistance program established pursuant to title eleven of article five of the social
27 services law, or the state's child health insurance plan pursuant to title one-A of article twenty- five of the public health law, in the same proportion as each parent's income is to the combined parental income, and state the non-custodial parent's share as a percentage in the order. The non- custodial parent's pro rata share of such health care expenses determined by the court to be due and owing shall be support arrears/past due support and shall be subject to any remedies provided by law for the enforcement of support arrears/past due support. In addition, the court may direct that the non-custodial parent's pro rata share of such health care expenses be paid in one sum or in periodic sums, including direct payment to the health care provider. (vi) Upon proof by either party that cash medical support pursuant to clause (ii), (iii), (iv), or (v) of this subparagraph would be unjust or inappropriate pursuant to paragraph (f) of this subdivision, the court shall: (A) order the parties to pay cash medical support as the court finds just and appropriate, considering the best interests of the child; and (B) set forth in the order the factors it considered, the amount calculated under this subparagraph, the reason or reasons the court did not order such amount, and the basis for the amount awarded. (6) Where the court determines that the custodial parent is seeking work and incurs child care expenses as a result thereof, the court may determine reasonable child care expenses and may apportion the same between the custodial and non-custodial parent. The non-custodial parent's share of such expenses shall be separately stated and paid in a manner determined by the court. (7) Where the court determines, having regard for the circumstances of the case and of the respective parties and in the best interests of the child, and as justice requires, that the present or future provision of post-secondary, private, special, or enriched education for the child is appropriate, the court may award educational expenses. The non-custodial parent shall pay educational expenses, as awarded, in a manner determined by the court, including direct payment to the educational provider.
(d) Notwithstanding the provisions of paragraph (c) of this subdivision, where the annual amount of the basic child support obligation would reduce the non-custodial parent's income below the poverty income guidelines amount for a single person as reported by the federal department of health and human services, the basic child support obligation shall be twenty-five dollars per month, provided, however, that if the court finds that such basic child support obligation is unjust or inappropriate, which finding shall be based upon considerations of the factors set forth in paragraph (f) of this subdivision, the court shall order the non-custodial parent to pay such amount of the child support as the court finds just and appropriate. Notwithstanding the provisions of paragraph (c) of this subdivision, where the annual amount of the basic child support obligation would reduce the non-custodial parent's income below the self-support reserve but not below the poverty income guidelines amount for a single person as reported by the federal department of health and human services, the basic child support obligation shall be fifty dollars per month or the difference between the non-custodial parent's income and the self- support reserve, whichever is greater, in addition to any amounts that the court may, in its discretion, order in accordance with subparagraphs four, five, six and/or seven of paragraph (c) of this subdivision.
(e) Where a parent is or may be entitled to receive non-recurring payments from extraordinary sources not otherwise considered as income pursuant to this section, including but not limited to: (1) Life insurance policies;
28 (2) Discharges of indebtedness; (3) Recovery of bad debts and delinquency amounts; (4) Gifts and inheritances; and (5) Lottery winnings, the court, in accordance with paragraphs (c), (d) and (f) of this subdivision may allocate a proportion of the same to child support, and such amount shall be paid in a manner determined by the court.
(f) The court shall calculate the basic child support obligation, and the non-custodial parent's pro rata share of the basic child support obligation. Unless the court finds that the non-custodial parents's2 pro-rata share of the basic child support obligation is unjust or inappropriate, which finding shall be based upon consideration of the following factors: (1) The financial resources of the custodial and non-custodial parent, and those of the child; (2) The physical and emotional health of the child and his/her special needs and aptitudes; (3) The standard of living the child would have enjoyed had the marriage or household not been dissolved; (4) The tax consequences to the parties; (5) The non-monetary contributions that the parents will make toward the care and well-being of the child; (6) The educational needs of either parent; (7) A determination that the gross income of one parent is substantially less than the other parent's gross income; (8) The needs of the children of the non-custodial parent for whom the non-custodial parent is providing support who are not subject to the instant action and whose support has not been deducted from income pursuant to subclause (D) of clause (vii) of subparagraph five of paragraph (b) of this subdivision, and the financial resources of any person obligated to support such children, provided, however, that this factor may apply only if the resources available to support such children are less than the resources available to support the children who are subject to the instant action; (9) Provided that the child is not on public assistance (i) extraordinary expenses incurred by the non-custodial parent in exercising visitation, or (ii) expenses incurred by the non-custodial parent in extended visitation provided that the custodial parent's expenses are substantially reduced as a result thereof; and (10) Any other factors the court determines are relevant in each case, the court shall order the non-custodial parent to pay his or her pro rata share of the basic child support obligation, and may order the non-custodial parent to pay an amount pursuant to paragraph (e) of this subdivision.
(g) Where the court finds that the non-custodial parent's pro rata share of the basic child support obligation is unjust or inappropriate, the court shall order the non-custodial parent to pay such amount of child support as the court finds just and appropriate, and the court shall set forth, in a written order, the factors it considered; the amount of each party's pro rata share of the basic child support obligation; and the reasons that the court did not order the basic child support obligation. Such written order may not be waived by either party or counsel; provided, however, and notwithstanding any other provision of law, the court shall not find that the non-custodial parent's pro rata share of such obligation is unjust or inappropriate on the basis that such share
29 exceeds the portion of a public assistance grant which is attributable to a child or children. Where the non-custodial parent's income is less than or equal to the poverty income guidelines amount for a single person as reported by the federal department of health and human services, unpaid child support arrears in excess of five hundred dollars shall not accrue.
(h) A validly executed agreement or stipulation voluntarily entered into between the parties after the effective date of this subdivision presented to the court for incorporation in an order or judgment shall include a provision stating that the parties have been advised of the provisions of this subdivision, and that the basic child support obligation provided for therein would presumptively result in the correct amount of child support to be awarded. In the event that such agreement or stipulation deviates from the basic child support obligation, the agreement or stipulation must specify the amount that such basic child support obligation would have been and the reason or reasons that such agreement or stipulation does not provide for payment of that amount. Such provision may not be waived by either party or counsel. Nothing contained in this subdivision shall be construed to alter the rights of the parties to voluntarily enter into validly executed agreements or stipulations which deviate from the basic child support obligation provided such agreements or stipulations comply with the provisions of this paragraph. The court shall, however, retain discretion with respect to child support pursuant to this section. Any court order or judgment incorporating a validly executed agreement or stipulation which deviates from the basic child support obligation shall set forth the court's reasons for such deviation.
(i) Where either or both parties are unrepresented, the court shall not enter an order or judgment other than a temporary order pursuant to section two hundred thirty-seven of this article, that includes a provision for child support unless the unrepresented party or parties have received a copy of the child support standards chart promulgated by the commissioner of the office of temporary and disability assistance pursuant to subdivision two of section one hundred eleven-i of the social services law. Where either party is in receipt of child support enforcement services through the local social services district, the local social services district child support enforcement unit shall advise such party of the amount derived from application of the child support percentage and that such amount serves as a starting point for the determination of the child support award, and shall provide such party with a copy of the child support standards chart.
(j) In addition to financial disclosure required in section two hundred thirty-six of this article, the court may require that the income and/or expenses of either party be verified with documentation including, but not limited to, past and present income tax returns, employer statements, pay stubs, corporate, business, or partnership books and records, corporate and business tax returns, and receipts for expenses or such other means of verification as the court determines appropriate. Nothing herein shall affect any party's right to pursue discovery pursuant to this chapter, the civil practice law and rules, or the family court act.
(k) When a party has defaulted and/or the court is otherwise presented with insufficient evidence to determine gross income, the court shall order child support based upon the needs or standard of living of the child, whichever is greater. Such order may be retroactively modified upward, without a showing of change in circumstances.
30 (l) In any action or proceeding for modification of an order of child support existing prior to the effective date of this paragraph, brought pursuant to this article, the child support standards set forth in this subdivision shall not constitute a change of circumstances warranting modification of such support order; provided, however, that (1) where the circumstances warrant modification of such order, or (2) where any party objects to an adjusted child support order made or proposed at the direction of the support collection unit pursuant to section one hundred eleven-h or one hundred eleven-n of the social services law, and the court is reviewing the current order of child support, such standards shall be applied by the court in its determination with regard to the request for modification, or disposition of an objection to an adjusted child support order made or proposed by a support collection unit. In applying such standards, when the order to be modified incorporates by reference or merges with a validly executed separation agreement or stipulation of settlement, the court may consider, in addition to the factors set forth in paragraph (f) of this subdivision, the provisions of such agreement or stipulation concerning property distribution, distributive award and/or maintenance in determining whether the amount calculated by using the standards would be unjust or inappropriate.
Modification of child support after an agreement or judgment: DRL § 236 (B)(9)(b)(2)(i-ii) UNLESS parties specifically opt-out
(2)(i) The court may modify an order of child support, including an order incorporating without merging an agreement or stipulation of the parties, upon a showing of a substantial change in circumstances. Incarceration shall not be a bar to finding a substantial change in circumstances provided such incarceration is not the result of nonpayment of a child support order, or an offense against the custodial parent or child who is the subject of the order or judgment.
(ii) In addition, unless the parties have specifically opted out of the following provisions in a validly executed agreement or stipulation entered into between the parties, the court may modify an order of child support where: (A) three years have passed since the order was entered, last modified or adjusted; or (B) there has been a change in either party's gross income by fifteen percent or more since the order was entered, last modified, or adjusted. A reduction in income shall not be considered as a ground for modification unless it was involuntary and the party has made diligent attempts to secure employment commensurate with his or her education, ability, and experience.
(iii) No modification or annulment shall reduce or annul any arrears of child support which have accrued prior to the date of application to annul or modify any prior order or judgment as to child support. Such modification may increase child support nunc pro tunc as of the date of application based on newly discovered evidence. Any retroactive amount of child support due shall, except as provided for in this subparagraph, be paid in one sum or periodic sums, as the court directs, taking into account any temporary or partial payments which have been made. Any retroactive amount of child support due shall be support arrears/past due support. In addition, such retroactive child support shall be enforceable in any manner provided by law including, but not limited to, an execution for support enforcement pursuant to subdivision (b) of section fifty-two hundred forty-one of the civil practice law and rules. When a child receiving support is a public assistance recipient, or the order of support is being enforced or is to be enforced pursuant to
31 section one hundred eleven-g of the social services law, the court shall establish the amount of retroactive child support and notify the parties that such amount shall be enforced by the support collection unit pursuant to an immediate execution for support enforcement as provided for by this chapter, or in such periodic payments as would have been authorized had such an execution been issued. In such case, the court shall not direct the schedule of repayment of retroactive support. c. Notwithstanding any other provision of law, any written application or motion to the court for the modification or enforcement of a child support or combined maintenance and child support order for persons not in receipt of family assistance must contain either a request for child support enforcement services which would authorize the collection of the support obligation by the immediate issuance of an income execution for support enforcement as provided for by this chapter, completed in the manner specified in section one hundred eleven-g of the social services law; or a statement that the applicant has applied for or is in receipt of such services; or a statement that the applicant knows of the availability of such services, has declined them at this time and where support enforcement services pursuant to section one hundred eleven-g of the social services law have been declined that the applicant understands that an income deduction order may be issued pursuant to subdivision (c) of section five thousand two hundred forty-two of the civil practice law and rules without other child support enforcement services and that payment of an administrative fee may be required. The court shall provide a copy of any such request for child support enforcement services to the support collection unit of the appropriate social services district any time it directs payments to be made to such support collection unit. Additionally, the copy of such request shall be accompanied by the name, address and social security number of the parties; the date and place of the parties' marriage; the name and date of birth of the child or children; and the name and address of the employers and income payors of the party ordered to pay child support to the other party. Unless the party receiving child support or combined maintenance and child support has applied for or is receiving such services, the court shall not direct such payments to be made to the support collection unit, as established in section one hundred eleven-h of the social services law.
Modification of child support where the parties have opted out of DRL § 236 (B)(9)(b)(2)(i-ii) Boden v. Boden, 42 N.Y.2d 210 (1977), Brescia v Fitts, 56 N.Y.2d 132 (1982): There been an “unreasonable and unanticipated change of circumstances” sufficient to change the support provisions of the Agreement and a concomitant showing of need.
32 SUPPORT ENFORCEMENT
Income Execution and Income Deduction for Support Enforcement CPLR § 5241: Income execution CPLR § 5242: Income deduction CPLR § 5205: Personal Property Exempt from Application to the Satisfaction of Money Judgments But See 5205(c)(4) – IRAs, 401Ks, Keoghs, etc. can be invaded for child support and maintenance in certain circumstances; and 5205(d)(3) – Court awarded maintenance and child support not exempt
Other Enforcement Devices and Remedies DRL § 243-245, 237(c), 238 Judiciary Law § 753 (contempt)1
1 Different standard for finding of Contempt in Family Court vs. Supreme Court: Supreme Court (which requires use of Judiciary Law Section 753, along with applicable DRL Sections) requires showing that party seeking enforcement has exhausted all other enforcement remedies OR that attempt to utilize them would be futile; Family Court has no such requirement. Also, presumption of willfulness leading to finding of contempt more easily in Family Court merely by showing failure to pay Court ordered support (which you must show in Supreme Court as well)
33 MAINTENANCE
Pendente lite Maintenance: DRL § 236(B)(5-a) A summary of the lengthy statute below: The presumptive amount of temporary maintenance to be paid is determined by the following formula. 1. Determine Payor’s income (“income” as defined by the CSSA) 2. Determine Payee’s income (“income” as defined by the CSSA) 3. Calculation A: 30% of Payor’s income minus 20% of Payee’s income 4. Calculation B: 40% of combined income minus Payee’s income 5. Presumptive amount of maintenance is the lesser of calculation A or B, unless: a. If either A or B is a negative number or 0, the presumptive amount is $0. b. The above calculations include income up to a cap amount (presently $524,000). If the Payor’s income exceeds $524,000, the court must consider the 19 factors as specified in the statute in awarding any maintenance based on the income above $524,000. c. If the presumptive amount reduces the Payor’s income below the self-support reserve (currently, $15,080), the presumptive amount is the Payor’s income minus the self- support reserve. d. The Court may adjust any award if it finds the award to be unjust or inappropriate based on 17 factors as specified in the statute.
There is a handy temporary maintenance calculator at: http://courts.state.ny.us/divorce/calculator.pdf
5-a. Temporary maintenance awards. a. Except where the parties have entered into an agreement pursuant to subdivision three of this part providing for maintenance, in any matrimonial action the court shall make its award for temporary maintenance pursuant to the provisions of this subdivision. b. For purposes of this subdivision, the following definitions shall be used: (1) “Payor” shall mean the spouse with the higher income. (2) “Payee” shall mean the spouse with the lower income. (3) “Length of marriage” shall mean the period from the date of marriage until the date of commencement of action. (4) “Income” shall mean: (a) income as defined in the child support standards act and codified in section two hundred forty of this article and section four hundred thirteen of the family court act; and (b) income from income producing property to be distributed pursuant to subdivision five of this part. (5) “Income cap” shall mean up to and including five hundred thousand dollars of the payor's annual income; provided, however, beginning January thirty-first, two thousand twelve and every two years thereafter, the payor's annual income amount shall increase by the product of the average annual percentage changes in the consumer price index for all urban consumers (CPI-U) as published by the United States department of labor bureau of labor statistics for the two year period rounded to the nearest one thousand dollars. The office of court administration shall determine and publish the income cap. (6) “Guideline amount of temporary maintenance” shall mean the sum derived by the application of paragraph c of this subdivision.
34 (7) “Guideline duration” shall mean the durational period determined by the application of paragraph d of this subdivision. (8) “Presumptive award” shall mean the guideline amount of the temporary maintenance award for the guideline duration prior to the court's application of any adjustment factors as provided in subparagraph one of paragraph e of this subdivision. (9) “Self-support reserve” shall mean the self-support reserve as defined in the child support standards act and codified in section two hundred forty of this article and section four hundred thirteen of the family court act. c. The court shall determine the guideline amount of temporary maintenance in accordance with the provisions of this paragraph after determining the income of the parties: (1) Where the payor's income is up to and including the income cap: (a) the court shall subtract twenty percent of the income of the payee from thirty percent of the income up to the income cap of the payor. (b) the court shall then multiply the sum of the payor's income up to and including the income cap and all of the payee's income by forty percent. (c) the court shall subtract the income of the payee from the amount derived from clause (b) of this subparagraph. (d) the guideline amount of temporary maintenance shall be the lower of the amounts determined by clauses (a) and (c) of this subparagraph; if the amount determined by clause (c) of this subparagraph is less than or equal to zero, the guideline amount shall be zero dollars.
(2) Where the income of the payor exceeds the income cap: (a) the court shall determine the guideline amount of temporary maintenance for that portion of the payor's income that is up to and including the income cap according to subparagraph one of this paragraph, and, for the payor's income in excess of the income cap, the court shall determine any additional guideline amount of temporary maintenance through consideration of the following factors: (i) the length of the marriage; (ii) the substantial differences in the incomes of the parties; (iii) the standard of living of the parties established during the marriage; (iv) the age and health of the parties; (v) the present and future earning capacity of the parties; (vi) the need of one party to incur education or training expenses; (vii) the wasteful dissipation of marital property; (viii) the transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; (ix) the existence and duration of a pre-marital joint household or a pre-divorce separate household; (x) acts by one party against another that have inhibited or continue to inhibit a party's earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the social services law; (xi) the availability and cost of medical insurance for the parties; (xii) the care of the children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws that has inhibited or continues to inhibit a party's earning capacity or ability to obtain meaningful employment;
35 (xiii) the inability of one party to obtain meaningful employment due to age or absence from the workforce; (xiv) the need to pay for exceptional additional expenses for the child or children, including, but not limited to, schooling, day care and medical treatment; (xv) the tax consequences to each party; (xvi) marital property subject to distribution pursuant to subdivision five of this part; (xvii) the reduced or lost earning capacity of the party seeking temporary maintenance as a result of having foregone or delayed education, training, employment or career opportunities during the marriage; (xviii) the contributions and services of the party seeking temporary maintenance as a spouse, parent, wage earner and homemaker and to the career or career potential of the other party; and (xix) any other factor which the court shall expressly find to be just and proper. (b) In any decision made pursuant to this subparagraph, the court shall set forth the factors it considered and the reasons for its decision. Such written order may not be waived by either party or counsel.
(3) Notwithstanding the provisions of this paragraph, where the guideline amount of temporary maintenance would reduce the payor's income below the self-support reserve for a single person, the presumptive amount of the guideline amount of temporary maintenance shall be the difference between the payor's income and the self-support reserve. If the payor's income is below the self-support reserve, there is a rebuttable presumption that no temporary maintenance is awarded. d. The court shall determine the guideline duration of temporary maintenance by considering the length of the marriage. Temporary maintenance shall terminate upon the issuance of the final award of maintenance or the death of either party, whichever occurs first. e. (1) The court shall order the presumptive award of temporary maintenance in accordance with paragraphs c and d of this subdivision, unless the court finds that the presumptive award is unjust or inappropriate and adjusts the presumptive award of temporary maintenance accordingly based upon consideration of the following factors: (a) the standard of living of the parties established during the marriage; (b) the age and health of the parties; (c) the earning capacity of the parties; (d) the need of one party to incur education or training expenses; (e) the wasteful dissipation of marital property; (f) the transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; (g) the existence and duration of a pre-marital joint household or a pre-divorce separate household; (h) acts by one party against another that have inhibited or continue to inhibit a party's earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the social services law; (i) the availability and cost of medical insurance for the parties; (j) the care of the children or stepchildren, disabled adult children or stepchildren, elderly parents
36 or in-laws that has inhibited or continues to inhibit a party's earning capacity or ability to obtain meaningful employment; (k) the inability of one party to obtain meaningful employment due to age or absence from the workforce; (l) the need to pay for exceptional additional expenses for the child or children, including, but not limited to, schooling, day care and medical treatment; (m) the tax consequences to each party; (n) marital property subject to distribution pursuant to subdivision five of this part; (o) the reduced or lost earning capacity of the party seeking temporary maintenance as a result of having foregone or delayed education, training, employment or career opportunities during the marriage; (p) the contributions and services of the party seeking temporary maintenance as a spouse, parent, wage earner and homemaker and to the career or career potential of the other party; and (q) any other factor which the court shall expressly find to be just and proper.
(2) Where the court finds that the presumptive award of temporary maintenance is unjust or inappropriate and the court adjusts the presumptive award of temporary maintenance pursuant to this paragraph, the court shall set forth, in a written order, the amount of the unadjusted presumptive award of temporary maintenance, the factors it considered, and the reasons that the court adjusted the presumptive award of temporary maintenance. Such written order shall not be waived by either party or counsel.
(3) Where either or both parties are unrepresented, the court shall not enter a temporary maintenance order unless the unrepresented party or parties have been informed of the presumptive award of temporary maintenance. f. A validly executed agreement or stipulation voluntarily entered into between the parties in an action commenced after the effective date of this subdivision presented to the court for incorporation in an order shall include a provision stating that the parties have been advised of the provisions of this subdivision, and that the presumptive award provided for therein results in the correct amount of temporary maintenance. In the event that such agreement or stipulation deviates from the presumptive award of temporary maintenance, the agreement or stipulation must specify the amount that such presumptive award of temporary maintenance would have been and the reason or reasons that such agreement or stipulation does not provide for payment of that amount. Such provision may not be waived by either party or counsel. Nothing contained in this subdivision shall be construed to alter the rights of the parties to voluntarily enter into validly executed agreements or stipulations which deviate from the presumptive award of temporary maintenance provided such agreements or stipulations comply with the provisions of this subdivision. The court shall, however, retain discretion with respect to temporary, and post- divorce maintenance awards pursuant to this section. Any court order incorporating a validly executed agreement or stipulation which deviates from the presumptive award of temporary maintenance shall set forth the court's reasons for such deviation. g. When a party has defaulted and/or the court is otherwise presented with insufficient evidence to determine gross income, the court shall order the temporary maintenance award based upon the needs of the payee or the standard of living of the parties prior to commencement of the
37 divorce action, whichever is greater. Such order may be retroactively modified upward without a showing of change in circumstances upon a showing of newly discovered or obtained evidence. h. In any action or proceeding for modification of an order of maintenance or alimony existing prior to the effective date of this subdivision, brought pursuant to this article, the temporary maintenance guidelines set forth in this subdivision shall not constitute a change of circumstances warranting modification of such support order.
i. In any decision made pursuant to this subdivision the court shall, where appropriate, consider the effect of a barrier to remarriage, as defined in subdivision six of section two hundred fifty- three of this article, on the factors enumerated in this subdivision.
Post-Divorce/Durational Maintenance No formula. Award is based on the 20 factors as set forth in the statute below.
6. Post-divorce maintenance awards. a. Except where the parties have entered into an agreement pursuant to subdivision three of this part providing for maintenance, in any matrimonial action the court may order maintenance in such amount as justice requires, having regard for the standard of living of the parties established during the marriage, whether the party in whose favor maintenance is granted lacks sufficient property and income to provide for his or her reasonable needs and whether the other party has sufficient property or income to provide for the reasonable needs of the other and the circumstances of the case and of the respective parties. Such order shall be effective as of the date of the application therefor, and any retroactive amount of maintenance due shall be paid in one sum or periodic sums, as the court shall direct, taking into account any amount of temporary maintenance which has been paid. In determining the amount and duration of maintenance the court shall consider: (1) the income and property of the respective parties including marital property distributed pursuant to subdivision five of this part; (2) the length of the marriage; (3) the age and health of both parties; (4) the present and future earning capacity of both parties; (5) the need of one party to incur education or training expenses; (6) the existence and duration of a pre-marital joint household or a pre-divorce separate household; (7) acts by one party against another that have inhibited or continue to inhibit a party's earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the social services law; (8) the ability of the party seeking maintenance to become self-supporting and, if applicable, the period of time and training necessary therefor; (9) reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage; (10) the presence of children of the marriage in the respective homes of the parties; (11) the care of the children or stepchildren, disabled adult children or stepchildren, elderly
38 parents or in-laws that has inhibited or continues to inhibit a party's earning capacity; (12) the inability of one party to obtain meaningful employment due to age or absence from the workforce; (13) the need to pay for exceptional additional expenses for the child/children, including but not limited to, schooling, day care and medical treatment; (14) the tax consequences to each party; (15) the equitable distribution of marital property; (16) contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party; (17) the wasteful dissipation of marital property by either spouse; (18) the transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; (19) the loss of health insurance benefits upon dissolution of the marriage, and the availability and cost of medical insurance for the parties; and (20) any other factor which the court shall expressly find to be just and proper. b. In any decision made pursuant to this subdivision, the court shall set forth the factors it considered and the reasons for its decision and such may not be waived by either party or counsel. c. The court may award permanent maintenance, but an award of maintenance shall terminate upon the death of either party or upon the recipient's valid or invalid marriage, or upon modification pursuant to paragraph b of subdivision nine of this part or section two hundred forty-eight of this chapter. d. In any decision made pursuant to this subdivision the court shall, where appropriate, consider the effect of a barrier to remarriage, as defined in subdivision six of section two hundred fifty- three of this article, on the factors enumerated in paragraph a of this subdivision.
39 COUNSEL FEES
McKinney's DRL § 237 § 237. Counsel fees and expenses
(a) In any action or proceeding brought (1) to annul a marriage or to declare the nullity of a void marriage, or (2) for a separation, or (3) for a divorce, or (4) to declare the validity or nullity of a judgment of divorce rendered against a spouse who was the defendant in any action outside the State of New York and did not appear therein where such spouse asserts the nullity of such foreign judgment, (5) to obtain maintenance or distribution of property following a foreign judgment of divorce, or (6) to enjoin the prosecution in any other jurisdiction of an action for a divorce, the court may direct either spouse or, where an action for annulment is maintained after the death of a spouse, may direct the person or persons maintaining the action, to pay counsel fees and fees and expenses of experts directly to the attorney of the other spouse to enable the other party to carry on or defend the action or proceeding as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties. There shall be rebuttable presumption that counsel fees shall be awarded to the less monied spouse. In exercising the court's discretion, the court shall seek to assure that each party shall be adequately represented and that where fees and expenses are to be awarded, they shall be awarded on a timely basis, pendente lite, so as to enable adequate representation from the commencement of the proceeding. Applications for the award of fees and expenses may be made at any time or times prior to final judgment. Both parties to the action or proceeding and their respective attorneys, shall file an affidavit with the court detailing the financial agreement between the party and the attorney. Such affidavit shall include the amount of any retainer, the amounts paid and still owing thereunder, the hourly amount charged by the attorney, the amounts paid, or to be paid, any experts, and any additional costs, disbursements or expenses. Any applications for fees and expenses may be maintained by the attorney for either spouse in his own name in the same proceeding. Payment of any retainer fees to the attorney for the petitioning party shall not preclude any awards of fees and expenses to an applicant which would otherwise be allowed under this section.
(b) Upon any application to enforce, annul or modify an order or judgment for alimony, maintenance, distributive award, distribution of marital property or for custody, visitation, or maintenance of a child, made as in section two hundred thirty-six or section two hundred forty of this article provided, or upon any application by writ of habeas corpus or by petition and order to show cause concerning custody, visitation or maintenance of a child, the court may direct a spouse or parent to pay counsel fees and fees and expenses of experts directly to the attorney of the other spouse or parent to enable the other party to carry on or defend the application or proceeding by the other spouse or parent as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties. There shall be a rebuttable presumption that counsel fees shall be awarded to the less monied spouse. In exercising the court's discretion, the court shall seek to assure that each party shall be adequately represented and that where fees and expenses are to be awarded, they shall be awarded on a timely basis, pendente lite, so as to enable adequate representation from the commencement of the proceeding. Applications for the award of fees and expenses may be made at any time or times prior to final judgment. Both parties to the action or proceeding and their respective attorneys, shall file an
40 affidavit with the court detailing the financial agreement, between the party and the attorney. Such affidavit shall include the amount of any retainer, the amounts paid and still owing thereunder, the hourly amount charged by the attorney, the amounts paid, or to be paid, any experts, and any additional costs, disbursements or expenses. Any applications for fees and expenses may be maintained by the attorney for either spouse in counsel's own name in the same proceeding. Payment of any retainer fees to the attorney for the petitioning party shall not preclude any awards of fees and expenses to an applicant which would otherwise be allowed under this section.
(c) In any action or proceeding for failure to obey any lawful order compelling payment of support or maintenance, or distributive award the court shall, upon a finding that such failure was willful, order respondent to pay counsel fees to the attorney representing the petitioner.
(d) The term “expenses” as used in subdivisions (a) and (b) of this section shall include, but shall not be limited to, accountant fees, appraisal fees, actuarial fees, investigative fees and other fees and expenses that the court may determine to be necessary to enable a spouse to carry on or defend an action or proceeding under this section. In determining the appropriateness and necessity of fees, the court shall consider: 1. The nature of the marital property involved; 2. The difficulties involved, if any, in identifying and evaluating the marital property; 3. The services rendered and an estimate of the time involved; and 4. The applicant's financial status.
Other rules which apply to matrimonial practitioners Failure to “substantially comply with the following can result in 1. Your client not receiving a counsel fee award from the other spouse; and/or 2. A dismissal of any law suit against your former client seeking payment of your fees.
NYCRR 1400.2: a Statement of Client’s Rights and Responsibilities must be provided to the client NYCRR 1400.3: a written retainer agreement must be provided with specific requirements of the terms, and the retainer agreement must be filed with the Court NYCRR 1400.4: nonrefundable retainers are prohibited (although ‘minimum fee’ retainers are permitted). NYCRR 1400.5: security interests are permissible only when certain requirements are met, including court approval of same.
41 EQUITABLE DISTRIBUTION DRL Section 236, Part B b. The term “distributive award” shall mean payments provided for in a valid agreement between the parties or awarded by the court, in lieu of or to supplement, facilitate or effectuate the division or distribution of property where authorized in a matrimonial action, and payable either in a lump sum or over a period of time in fixed amounts. Distributive awards shall not include payments which are treated as ordinary income to the recipient under the provisions of the United States Internal Revenue Code. c. The term “marital property” shall mean all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held, except as otherwise provided in agreement pursuant to subdivision three of this part. Marital property shall not include separate property as hereinafter defined. d. The term separate property shall mean: (1) property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse; (2) compensation for personal injuries; (3) property acquired in exchange for or the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse; (4) property described as separate property by written agreement of the parties pursuant to subdivision three of this part.
5. Disposition of property in certain matrimonial actions. a. Except where the parties have provided in an agreement for the disposition of their property pursuant to subdivision three of this part, the court, in an action wherein all or part of the relief granted is divorce, or the dissolution, annulment or declaration of the nullity of a marriage, and in proceedings to obtain a distribution of marital property following a foreign judgment of divorce, shall determine the respective rights of the parties in their separate or marital property, and shall provide for the disposition thereof in the final judgment. b. Separate property shall remain such. c. Marital property shall be distributed equitably between the parties, considering the circumstances of the case and of the respective parties. d. In determining an equitable disposition of property under paragraph c, the court shall consider: (1) the income and property of each party at the time of marriage, and at the time of the commencement of the action; (2) the duration of the marriage and the age and health of both parties; (3) the need of a custodial parent to occupy or own the marital residence and to use or own its household effects; (4) the loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution; (5) the loss of health insurance benefits upon dissolution of the marriage; (6) any award of maintenance under subdivision six of this part; (7) any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of
42 such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party; (8) the liquid or non-liquid character of all marital property; (9) the probable future financial circumstances of each party; (10) the impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party; (11) the tax consequences to each party; (12) the wasteful dissipation of assets by either spouse; (13) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; (14) any other factor which the court shall expressly find to be just and proper. e. In any action in which the court shall determine that an equitable distribution is appropriate but would be impractical or burdensome or where the distribution of an interest in a business, corporation or profession would be contrary to law, the court in lieu of such equitable distribution shall make a distributive award in order to achieve equity between the parties. The court in its discretion, also may make a distributive award to supplement, facilitate or effectuate a distribution of marital property. f. In addition to the disposition of property as set forth above, the court may make such order regarding the use and occupancy of the marital home and its household effects as provided in section two hundred thirty-four of this chapter, without regard to the form of ownership of such property. g. In any decision made pursuant to this subdivision, the court shall set forth the factors it considered and the reasons for its decision and such may not be waived by either party or counsel. h. In any decision made pursuant to this subdivision the court shall, where appropriate, consider the effect of a barrier to remarriage, as defined in subdivision six of section two hundred fifty- three of this article, on the factors enumerated in paragraph d of this subdivision.
43 OTHER REQUIREMENTS
McKinney's DRL § 253 § 253. Removal of barriers to remarriage
1. This section applies only to a marriage solemnized in this state or in any other jurisdiction by a person specified in subdivision one of section eleven of this chapter.
2. Any party to a marriage defined in subdivision one of this section who commences a proceeding to annul the marriage or for a divorce must allege, in his or her verified complaint: (i) that, to the best of his or her knowledge, that he or she has taken or that he or she will take, prior to the entry of final judgment, all steps solely within his or her power to remove any barrier to the defendant's remarriage following the annulment or divorce; or (ii) that the defendant has waived in writing the requirements of this subdivision.
3. No final judgment of annulment or divorce shall thereafter be entered unless the plaintiff shall have filed and served a sworn statement: (i) that, to the best of his or her knowledge, he or she has, prior to the entry of such final judgment, taken all steps solely within his or her power to remove all barriers to the defendant's remarriage following the annulment or divorce; or (ii) that the defendant has waived in writing the requirements of this subdivision.
4. In any action for divorce based on subdivisions five and six of section one hundred seventy of this chapter in which the defendant enters a general appearance and does not contest the requested relief, no final judgment of annulment or divorce shall be entered unless both parties shall have filed and served sworn statements: (i) that he or she has, to the best of his or her knowledge, taken all steps solely within his or her power to remove all barriers to the other party's remarriage following the annulment or divorce; or (ii) that the other party has waived in writing the requirements of this subdivision.
5. The writing attesting to any waiver of the requirements of subdivision two, three or four of this section shall be filed with the court prior to the entry of a final judgment of annulment or divorce.
6. As used in the sworn statements prescribed by this section “barrier to remarriage” includes, without limitation, any religious or conscientious restraint or inhibition, of which the party required to make the verified statement is aware, that is imposed on a party to a marriage, under the principles held by the clergyman or minister who has solemnized the marriage, by reason of the other party's commission or withholding of any voluntary act. Nothing in this section shall be construed to require any party to consult with any clergyman or minister to determine whether there exists any such religious or conscientious restraint or inhibition. It shall not be deemed a “barrier to remarriage” within the meaning of this section if the restraint or inhibition cannot be removed by the party's voluntary act. Nor shall it be deemed a “barrier to remarriage” if the party must incur expenses in connection with removal of the restraint or inhibition and the other party refuses to provide reasonable reimbursement for such expenses. “All steps solely within his or her power” shall not be construed to include application to a marriage tribunal or other similar organization or agency of a religious denomination which has authority to annul or dissolve a
44 marriage under the rules of such denomination.
7. No final judgment of annulment or divorce shall be entered, notwithstanding the filing of the plaintiff's sworn statement prescribed by this section, if the clergyman or minister who has solemnized the marriage certifies, in a sworn statement, that he or she has solemnized the marriage and that, to his or her knowledge, the plaintiff has failed to take all steps solely within his or her power to remove all barriers to the defendant's remarriage following the annulment or divorce, provided that the said clergyman or minister is alive and available and competent to testify at the time when final judgment would be entered.
8. Any person who knowingly submits a false sworn statement under this section shall be guilty of making an apparently sworn false statement in the first degree and shall be punished in accordance with section 210.40 of the penal law.
9. Nothing in this section shall be construed to authorize any court to inquire into or determine any ecclesiastical or religious issue. The truth of any statement submitted pursuant to this section shall not be the subject of any judicial inquiry, except as provided in subdivision eight of this section.
45 SAME SEX MARRIAGE & DIVORCE
1. Marriage: DRL § 10-a and 10-b. There is no residency requirement in order to be married in New York.
McKinney's DRL § 10-a § 10-a. Parties to a marriage
1. A marriage that is otherwise valid shall be valid regardless of whether the parties to the marriage are of the same or different sex.
2. No government treatment or legal status, effect, right, benefit, privilege, protection or responsibility relating to marriage, whether deriving from statute, administrative or court rule, public policy, common law or any other source of law, shall differ based on the parties to the marriage being or having been of the same sex rather than a different sex. When necessary to implement the rights and responsibilities of spouses under the law, all gender-specific language or terms shall be construed in a gender-neutral manner in all such sources of law.
McKinney's DRL § 10-b § 10-b. Religious exception
1. Notwithstanding any state, local or municipal law, rule, regulation, ordinance, or other provision of law to the contrary, a religious entity as defined under the education law or section two of the religious corporations law, or a corporation incorporated under the benevolent orders law or described in the benevolent orders law but formed under any other law of this state, or a not-for-profit corporation operated, supervised, or controlled by a religious corporation, or any employee thereof, being managed, directed, or supervised by or in conjunction with a religious corporation, benevolent order, or a not-for-profit corporation as described in this subdivision, shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage. Any such refusal to provide services, accommodations, advantages, facilities, goods, or privileges shall not create any civil claim or cause of action or result in any state or local government action to penalize, withhold benefits, or discriminate against such religious corporation, benevolent order, a not-for-profit corporation operated, supervised, or controlled by a religious corporation, or any employee thereof being managed, directed, or supervised by or in conjunction with a religious corporation, benevolent order, or a not-for-profit corporation.
2. Notwithstanding any state, local or municipal law or rule, regulation, ordinance, or other provision of law to the contrary, nothing in this article shall limit or diminish the right, pursuant to subdivision eleven of section two hundred ninety-six of the executive law, of any religious or denominational institution or organization, or any organization operated for charitable or educational purposes, which is operated, supervised or controlled by or in connection with a religious organization, to limit employment or sales or rental of housing accommodations or admission to or give preference to persons of the same religion or denomination or from taking such action as is calculated by such organization to promote the religious principles for which it is established or maintained.
46
3. Nothing in this section shall be deemed or construed to limit the protections and exemptions otherwise provided to religious organizations under section three of article one of the constitution of the state of New York.
2. Divorce: All the same statutes apply. However, some words of warning: a. Couples who are not residents of NY cannot be divorced in NY. The state(s) in which they reside may not recognize same-sex marriage and therefore, will not permit same-sex divorce. b. Due to “mini-DOMA’s” (states that have established a Defense of Marriage Act within the state which expressly prohibits the state from recognizing same-sex marriages), or states which by case law do not recognize out-of-state or out-of-country same-sex marriages, there are major issues related to i. Same sex married partners who reside in such a state ii. Same sex married partners who reside in such a state and desire to get divorced.
47 SUPREME COURT OF THE STATE OF NEW YORK 1 COUNTY OF ______------X 2 3 Index/Docket No.: Plaintiff, CHILD SUPPORT -- against -- WORKSHEET
4 Defendant ------X 5 Prepared by 6 This Worksheet is submitted by Plaintiff Defendant (All numbers used in this worksheet are YEARLY figures. Convert weekly or monthly figures to annualized numbers.)
7,8 STEP 1 MANDATORY PARENTAL INCOME (b)(5) PLAINTIFF DEFENDANT
1. Gross (total) income (as reported on most recent Federal tax return, or as computed in accordance with Internal Revenue Code and regulations): (b)(5)(i)......
The following items MUST be added if not already included in Line 1: 2. Investment income: (b)(5)(ii)...... 3. Workers' compensation: (b)(5)(iii)(A)...... 4. Disability benefits: (b)(5)(iii)(B)...... 5. Unemployment insurance benefits: (b)(5)(iii)(C)...... 6. Social Security benefits: (b)(5)(iii)(D)...... 7. Veterans benefits: (b)(5)(iii)(E)...... 8. Pension/retirement income: (b)(5)(iii)(F)...... 9. Fellowships and stipends: (b)(5)(iii)(G)...... 10. Annuity payments: (b)(5)(iii)(H)...... 11. If self-employed, depreciation greater than straight-line depreciation used in determining business income or investment credit: (b)(5)(vi)(A).... 12. If self-employed, entertainment and travel allowances deducted from business income to the extent the allowances reduce personal expenditures: (b)(5)(vi)(B)...... 13. Former income voluntarily reduced to avoid child support: (b)(5)(v). 14. Income voluntarily deferred: (b)(5)(iii)......
A. TOTAL MANDATORY INCOME:......
UD-8 Rev. 1/31/14 Form reproduced by permission of Author: Steven L. Abel, Esq. 9, 10 STEP 2 NON-MANDATORY PARENTAL INCOME
These items must be disclosed here. Their inclusion in the final calculations, however, is discretionary. In contested cases, the Court determines whether or not they are included. In uncontested cases, the parents and their attorneys or mediators must determine which should be included.
15. Income attributable to non-income producing assets: (b)(5)(iv)(A)...... 16. Employment benefits that confer personal economic benefits: (b)(5)(iv)(B) (Such as meals, lodging, memberships, automobiles, other)......
17. Fringe benefits of employment: (b)(5)(iv)(C) 18. Money, goods and services provided by relatives and friends: (b)(5)(iv)(D)
B. TOTAL NON-MANDATORY INCOME:......
11, 12 C. TOTAL INCOME (add Line A + Line B):......
13, 14 STEP 3 DEDUCTIONS
19. Expenses of investment income listed on line 2: (b)(5)(ii)...... 20. Unreimbursed business expenses that do not reduce personal expenditures: (b)(5)(vii)(A)...... 21. Alimony or maintenance actually paid to a former spouse: (b)(5)(vii)(B)...... 22. Alimony or maintenance paid to the other parent but only if child support will increase when alimony stops: (b)(5)(vii)(C)...... 23. Child support actually paid to other children the parent is legally obligated to support: (b)(5)(vii)(D)...... 24. Public assistance: (b)(5)(vii)(E)...... 25. Supplemental security income: (b)(5)(vii)(F)...... 26. New York City or Yonkers income or earnings taxes actually paid: (b)(5)(vii)(G)...... 27. Social Security taxes (FICA) actually paid:(b)(5)(vii)(H)......
D. TOTAL DEDUCTIONS:......
15 E. Plaintiff’s Income (Line C minus Line D):...... $
UD-8 Rev. 1/31/14 Form reproduced by permission of Author: Steven L. Abel, Esq. 16 F. Defendant’s Income (Line C minus Line D):...... $
17 STEP 4 (b)(4)G. COMBINED PARENTAL INCOME (Line E + Line F):..$
18 STEP 5 (b)(3) and (c)(2)
MULTIPLY Line G (up to $141,000) by the proper percentage (insert in Line H): For 1 child...... 17% For 3 children...... 29% For 5 or more children...... 35% (minimum) For 2 children...... 25% For 4 children...... 31%
H. COMBINED CHILD SUPPORT:......
STEP 6 (c)(2)
19 DIVIDE the noncustodial parent's amount on Line E or Line F:...... 20 by the amount of Line G:...... to obtain the percentage allocated 21 I. to the noncustodial parent:...... %
22 STEP 7 (c)(2) J. MULTIPLY line H by Line I:......
STEP 8 (c)(3)
23 K. DECIDE the amount of child support to be paid on any combined parental income exceeding $141,000 per year using the percentages in STEP 5 or the factors in STEP 11-C or both:......
24 L. ADD Line J and Line K:......
This is the amount of child support to be paid by the non-custodial parent to the custodial parent for all costs of the children, except for child care expenses, health care expenses, and college, post-secondary, private, special or enriched education.
STEP 9 SPECIAL NUMERICAL FACTORS
CHILD CARE EXPENSES 25 M. Cost of child care resulting from custodial parent's: seeking work (c)(6)[discretionary] working attending elementary education attending secondary education attending higher education attending vocational training leading to employment: (c)(4)......
26 N. MULTIPLY Line M by Line I:...... This is the amount the non-custodial parent must contribute to the custodial parent for child care.
UD-8 Rev. 1/31/14 Form reproduced by permission of Author: Steven L. Abel, Esq. HEALTH EXPENSES (c)(5)
27 O. Reasonable future health care expenses not covered by insurance:......
28 P. MULTIPLY Line O by Line I: ...... This is the amount the non-custodial parent must contribute to the custodial parent for health care or pay directly to the health care provider.
29 Q. EDUCATIONAL EXPENSE, if appropriate, see STEP 11(b) (c)(7) ......
STEP 10 LOW INCOME EXEMPTIONS (d)
30 R. INSERT amount of noncustodial parent's income from Line E or Line F:..
31 S. ADD amounts on Line L, Line N, Line P and Line Q (This total is "basic child support"):......
32 T. SUBTRACT Line S from Line R:......
If Line T is more than the self-support reserve, then the low income exemptions do not apply and child support remains as determined in Steps 8 and 9. If so, go to Step 11.
If Line T is less than the poverty level†, then
33 U. INSERT amount of non-custodial parent's income from Line E or Line F:......
34 V. Self-support reserve: ......
35 W. SUBTRACT Line V from Line U: ......
If Line W is more than $300 per year, then Line W is the amount of basic child support. If Line W is less than $300 per year, then basic child support shall be $300 per year, unless the Court decides this amount is “unjust or inappropriate” based on the non-numerical factors in Step 11C below.
If Line T is less than the self-support reserve but more than the poverty level†, then
36 X. INSERT amount of noncustodial parent's income from Line E or Line F:......
37 Y. Self-support reserve:......
The self-support reserve. This figure changes on April 1 of each year. For the most current, go to https://newyorkchildsupport.com/quick_links.html The current self-support reserve is 135% of the office Federal poverty level for a single person household as promulgated by the U.S. Department of Health and Human Services. †The poverty level. This figure changes on April 1 of each year. The current Federal poverty level for a single person household in any year is as promulgated by the U.S. Department of Health and Human Services. For the most current , go to https://newyorkchildsupport.com/quick_links.html
UD-8 Rev. 1/31/14 Form reproduced by permission of Author: Steven L. Abel, Esq. 38 Z. SUBTRACT Line Y from Line X:......
If Line Z is more than $600 per year, then Line Z is the amount of basic child support. If Line Z is less than $600 per year, then basic child support must be a minimum of $600 per year. In addition the Court also has discretion to award child care expenses, health care expenses, and college, post-secondary, private, special or enriched education expenses pursuant to Step 9.
STEP 11 NON-NUMERICAL FACTORS
(a) NON-RECURRING INCOME (e)
A portion of non-recurring income, such as life insurance proceeds, gifts and inheritances or lottery winnings, may be allocated to child support. The law does not mention a specific percentage for such non-recurring income. Such support is not modified by the low income exemptions.
(b) EDUCATIONAL EXPENSES (c)(7)
New York's child support law does not contain a specific percentage method to determine how parents should share the cost of education of their children. Traditionally, the courts have considered both parents' complete financial circumstances in deciding who pays how much. The most important elements of financial circumstances are income, reasonable expenses, and financial resources such as savings and investments.
(c) ADDITIONAL FACTORS (f)
The child support guidelines law lists 10 factors that should be considered in deciding on the amount of child support for: P combined incomes of more than $141,000 per year or P to vary the numerical result of these steps because the result is “unjust or inappropriate”. However, any court order deviating from the guidelines must set forth the amount of “basic child support” (Line S) resulting from the Guidelines and the reason for the deviation.
These factors are: 1. The financial resources of the parents and the child. 2. The physical and emotional health of the child and his/her special needs and aptitudes. 3. The standard of living the child would have enjoyed if the marriage or household was not dissolved. 4. The tax consequences to the parents. 5. The non-monetary contributions the parents will make toward the care and well-being of the child. 6. The educational needs of the parents. 7. The fact that the gross income of one parent is substantially less than the gross income of the other parent. 8. The needs of the other children of the non-custodial parent for whom the non-custodial parent is providing support, but only (a) if Line 23 is not deducted; (b) after considering the financial resources of any other person obligated to support the other children; and (c) if the resources available to support the other children are less then the resources available to support the children involved in this matter. 9. If a child is not on public assistance, the amount of extraordinary costs of visitation (such as out-of-state travel) or extended visits (other than the usual two to four week summer visits), but only if the custodial parent's expenses are substantially reduced by the visitation involved. 10. Any other factor the court decides is relevant. )
UD-8 Rev. 1/31/14 Form reproduced by permission of Author: Steven L. Abel, Esq. NON-JUDICIAL DETERMINATION OF CHILD SUPPORT (h)
Outside of court, parents are free to agree to any amount of support, so long as they sign a statement that they have been advised of the provisions of the child support guidelines law, the amount of “basic child support” (Line S) resulting from the Guidelines and the reason for any deviation. Further, the Court must approve any deviation. In addition, the courts retain discretion over child support.
39 ______Signature (check which applies) QPlaintiff QDefendant (The name signed must be printed beneath)
Subscribed and Sworn to before me on
NOTARY PUBLIC
UD-8 Rev. 1/31/14 Form reproduced by permission of Author: Steven L. Abel, Esq.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF
X Index/Docket No.:
/ Plaintiff, TEMPORARY MAINTENANCE — against — GUIDELINES WORKSHEET (See Attached Instructions on page 8)
Defendant
X
This Worksheet is submitted by Plaintiff Defendant.
NOTE: If you and your spouse have entered into an agreement about temporary maintenance, check the box below and submit a copy of the agreement to the court along with the completed Worksheet.
Plaintiff and Defendant have entered into a written agreement about maintenance.
1. ENTER INCOME OF PARTIES
A. Enter Plaintiff’s Annual Income from Line 17 of Appendix A ...... $
B. Enter Defendant’s Annual Income from Line 17 of Appendix A ...... $
NOTE: If you do not know your spouse’s income write “ unknown .”
2. DETERMINE WHO IS THE PAYOR AND WHO IS THE PAYEE
A. Enter the higher of Lines 1A and 1B . The person with the higher income is the PAYOR...... $
B. Enter the lower of Lines 1A and 1B . The person with the lower income is the PAYEE ...... $
continued
WORKSHEET 1 Rev 01.31.14 3. CALCULATE GUIDELINE AWARD ON INCOME UP TO AND INCLUDING $543,000 1
A. Check the box to indicate how you made the calculation: Use the Online Calculator available at: http://www.nycourts.gov/divorce/calculator.pdf and enter the amount from Line 12 of the Online Calculator in Line 3B below OR
Use Appendix B to make the calculation and enter the amount from Line 16 of Appendix B in Line 3B below
B. The Guideline Award of Temporary Maintenance (based on Payor’s Income up to $543,000) is : ...... $ 2
I have carefully read this statement and attest that it is true and accurate to the best of my knowledge.
Signature of party who presented this worksheet
Subscribed and Sworn to before me Print or type name on
NOTARY PUBLIC Signature of Attorney, if any
Print or type name
Attorney’s Address
Attorney’s Telephone Number
NOTES: 1 Temporary Maintenance Award on Portion of Payor’s Income above $543,000. If the Payor's income exceeds $543,000, the court considers 19 factors set forth in Section 23 6 Part B (5-A) (C)(2) (A) of the Domestic Relations Law in determining any additional temporary maintenance based on the income above $543,000. See Appendix C for a list of the 19 factors.
2 Unjust or Inappropriate Awards: If a party believes that the Guideline Award of Temporary Maintenance is unjust or inappropriate, the party can ask the court to vary the award based on 17 factors set forth in Section 23 6 Part B (5-A)(E)(1) of the Domestic Relations Law. See Appendix D for a list of the 17 factors.
WORKSHEET 2 APPENDIX A TO TEMPORARY MAINTENANCE GUIDELINES WORKSHEET
Itemization of Income and Deductions
I. GROSS INCOME (Annual Figures Only)
PLAINTIFF DEFENDANT 1. Gross (total) income (as should have been or should be reported in most recent federal income tax return) ...... $$
2. Investment income (not already included in item 1) reduced by amount expended in connection with the investments ....
3. Income or compensation from the following sources (not already included in items 1 or 2) ......
a. deferred compensation ......
b. worker's compensation ......
c. disability benefits ......
d. unemployment insurance benefits ......
e. social security benefits ......
f. veterans benefits ......
g. pensions and retirement benefits ......
h. fellowships and stipends ......
i. annuity payments ......
4. Former income or resources voluntarily reduced ......
5. Self-employment deductions (not already included in items 1 or 2) ...
a. depreciation deduction ......
b. entertainment and travel allowances ......
6. Other Income not already listed above (including but not limited to: Income from non-income producing assets; employment “perks” and reimbursed expenses to the extent that they reduce personal expenses; fringe benefits as a result of employment; money, goods and services provided by friends and relatives;) ......
7. GROSS ANNUAL INCOME (Add lines 1-6) ...... $$ PLAINTIFF DEFENDANT
APPENDI XA 3 Rev 01.31.14 II. DEDUCTIONS (Annual Figures Only)
PLAINTIFF DEFENDANT 8. Unreimbursed employee business expenses (except to extent expenses reduce personal expenditures) ...... $$
9. Alimony or maintenance actually paid to non-party spouse pursuant to court order or agreement ......
10. Alimony or maintenance actually paid or to be paid to party-spouse pursuant to court order or agreement (but only if child support will increase when alimony or maintenance ends ......
11. Child support actually paid pursuant to court order or agreement for non-party child ......
12. Public assistance ......
13. Supplemental social security Income ......
14. N.Y.C. or Yonkers taxes ......
15. Federal Insurance Contributions Act (FICA) taxes ......
16. TOTAL ANNUAL DEDUCTIONS (Add lines 8-15) ...... $$
III. NET INCOME
17. NET ANNUAL INCOME (Subtract line 16 from line 7 and insert on lines 1A and 1B of the Worksheet) ...... $$ PLAINTIFF DEFENDANT
APPENDIX A 4 APPENDIX B TO TEMPORARY MAINTENANCE GUIDELINES WORKSHEET Calculation of Guideline Amount Of Temporary Maintenance Up To And Including $543,000, and Adjustment for Low Income, If Any
I. BASIC CALCULATION
STEP A: 1. Enter Payor's income from Line 2A on page 1 of the Worksheet: If this amount is greater than $543,000, enter $543,000 ......
2. Enter Payee's income from Line 2B on page 1 of the Worksheet ......
STEP B: 3. Multiply Line 1 (Payor’s Income) by 30% ......
4. Multiply Line 2 (Payee’s Income) by 20% ......
5. Subtract Line 4 from Line 3 ......
STEP C: 6. Add Line 2A (Payor’s Income) and Line 2B (Payee’s Income) ......
7. Multiply 40% of Line 6 ......
8. Subtract Line 2 from Line 7 ......
STEP D: 9. Enter the lower of Line 8 and Line 5, but if Line 8 is less than or equal to zero, enter zero ......
II. THE LOW INCOME ADJUSTMENT
STEP E: (Determine if the low income adjustment applies) 10. Enter payor’s income from Line 1 ......
11. Enter calculated guideline amount from Line 9...... –
12. Subtract Line 11 from Line 10......  If Line 12 is greater than $15,512, there is no low income adjustment. Enter the amount from Line 9 in Line 16.  If Line 12 is less than $15,512, there is a low income adjustment. Go to Step F to calculate the amount of the award.
STEP F: (Determine the amount of the award after the low income adjustment)
13. Enter payor’s income from Line 1 ......
14. Enter $15,512 (the self support reserve)...... –
15. Subtract Line 14 from Line 13......  If the amount on Line 15 is greater than zero, enter that amount in Line 16.  If the amount on Line 15 is less than or equal to zero, enter zero in Line 16.
III. AWARD
16. Enter the amount as directed in either Step E or Step F, whichever applies. Also enter this amount in Line 3B of the Worksheet ...... $
APPENDIX B 5 Rev 01.31.14 APPENDIX C TO TEMPORARY MAINTENANCE GUIDELINES WORKSHEET
Income Exceeds $543,000: For the Payor's Income In Excess Of $543,000, The Court Shall Determine Any Additional Guideline Amount of Temporary Maintenance Through Consideration of the Following Factors:
1. The Length of the Marriage; 2. The Substantial Differences in the Incomes of the Parties; 3. The Standard of Living of the Parties Established During the Marriage; 4. The Age and Health of the Parties; 5. The Present and Future Earning Capacity of the Parties; 6. The Need of One Party to Incur Education or Training Expenses; 7. The Wasteful Dissipation of Marital Property;
8. The Transfer or Encumbrance Made in Contemplation of a Matrimonial Action Without Fair consideration;
9. The Existence and Duration of a Pre-marital Joint Household or a Pre-divorce Separate Household;
10. Acts by One Party Against Another That Have Inhibited or Continue to Inhibit a Party's Earning Capacity or Ability to Obtain Meaningful Employment. Such Acts Include but Are Not Limited to Acts of Domestic Violence as Provided in Section Four Hundred Fifty-Nine-A of the Social Services Law;
11. The Availability and Cost of Medical Insurance for the Parties; 12. The Care of the Children or Stepchildren, Disabled Adult Children or Stepchildren, Elderly Parents or In-laws That Has Inhibited or Continues to Inhibit a Party's Earning Capacity or Ability to Obtain Meaningful Employment;
13. The Inability of One Party to Obtain Meaningful Employment Due to Age or Absence from the Workforce;
14. The Need to Pay for Exceptional Additional Expenses for the Child or Children, Including, but Not Limited To, Schooling, Day Care and Medical Treatment;
15. The Tax Consequences to Each Party; 16. Marital Property Subject to Distribution Pursuant to Subdivision Five of this Part; 17. The Reduced or Lost Earning Capacity of the Party Seeking Temporary Maintenance as a Result of Having Foregone or Delayed Education, Training, Employment or Career Opportunities During the Marriage;
18. The Contributions and Services of the Party Seeking Temporary Maintenance as a Spouse, Parent, Wage Earner and Homemaker and to the Career or Career Potential of the Other Party; and
19. Any Other Factor Which the Court Shall Expressly Find to Be Just and Proper.
APPENDIX C 6 Rev 01.31.14 APPENDIX D TO TEMPORARY MAINTENANCE GUIDELINES WORKSHEET
Adjustment of Award The court may adjust an award if it finds the award is unjust or inappropriate based on consideration of the following factors:
1. The Standard of Living of the Parties Established During the Marriage; 2. The Age and Health of the Parties; 3. The Earning Capacity of the Parties; 4. The Need of One Party to Incur Education or Training Expenses; 5. The Wasteful Dissipation of Marital Property; 6. The Transfer or Encumbrance Made in Contemplation of a Matrimonial Action Without Fair Consideration;
7. The Existence and Duration of a Pre-marital Joint Household or a Pre-divorce Separate Household;
8. Acts by One Party Against Another That Have Inhibited or Continue to Inhibit a Party’s Earning Capacity or Ability to Obtain Meaningful Employment. Such Acts Include but Are Not Limited to Acts of Domestic Violence as Provided in Section Four Hundred Fifty-nine-a of the Social Services Law;
9. The Availability and Cost of Medical Insurance for the Parties; 10. The Care of the Children or Stepchildren, Disabled Adult Children or Stepchildren, Elderly Parents or In-laws That Has Inhibited or Continues to Inhibit a Party's Earning Capacity or Ability to Obtain Meaningful Employment;
11. The Inability of One Party to Obtain Meaningful Employment Due to Age or Absence from the Workforce;
12. The Need to Pay for Exceptional Additional Expenses for the Child or Children, Including, but Not Limited To, Schooling, Day Care and Medical Treatment;
13. The Tax Consequences to Each Party; 14. Marital Property Subject to Distribution Pursuant to Subdivision Five of this Part; 15. The Reduced or Lost Earning Capacity of the Party Seeking Temporary Maintenance as a Result of Having Foregone or Delayed Education, Training, Employment or Career Opportunities During the Marriage;
16. The Contributions and Services of the Party Seeking Temporary Maintenance as a Spouse, Parent, Wage Earner and Homemaker and to the Career or Career Potential of the Other Party; and
17. Any Other Factor Which the Court Shall Expressly Find to Be Just and Proper.
APPENDIX D 7 Rev 01.31.14 Instructions for Temporary Maintenance Guidelines Worksheet
SECTION 1
Complete Income Computations for Plaintiff and Defendant in Appendix A . Insert the amounts from Appendix A, Line 17 on Lines 1A and 1B of the worksheet. If you do not know your spouse’s income, write the word “unknown” in the relevant section.
SECTION 2
Determine whether Plaintiff or Defendant has greater income; that spouse will be called the “payor” and the other spouse will be called the “payee.” Enter amounts on Lines 2A and 2B of Section 2 of the Worksheet
SECTION 3
Calculate the guideline amount of temporary maintenance on income up to an including $543,000, and any low income adjustment, by either of the following methods:  use the court’s online calculator available at http://www.nycourts.gov/divorce/calculator.pdf or  make the calculations yourself on Appendix B to the worksheet
Check the applicable box on the Worksheet that indicates which method you chose to make the calculations Enter the result of your calculations from Line 12 of the online calculator or Line 16 of Appendix B on Line 3B of the Worksheet. This is the guideline award of temporary maintenance on income up to and including $543,000 after adjustment for low income, if any After you have completed Sections 1- 3 of the Worksheet, sign your name on Page 2 of the Worksheet before a notary public and print your name below the line. If you are represented by an attorney, the attorney should also sign. Then submit the original of the Worksheet to the court. Have a copy served on your spouse and keep a copy for yourself. Attach copies of your most recent tax returns and W-2 statements if you have not already submitted them with your Net Worth Statement.
INSTRUCTIONS 8 Rev 01.31.14 Jonathan D. Pressment [email protected]
Jonathan Pressment is a partner in the Business Litigation practice group in New York. His experience includes the representation of numerous Fortune 500 companies in a variety of complex civil litigation matters. Jonathan has extensive experience in all aspects of case commencement, discovery, motion practice and trial practice in commercial litigation matters. In
addition, Jonathan has experience as lead trial and appellate counsel for Partner clients in matters pending before both Federal and state courts including matters before the United States Court of Appeals for the Second Circuit and the New York State Court of Appeals. Areas of Practice ● Litigation/Trial Jonathan's experience covers an array of practice areas, including breach of Practice contract disputes, intellectual property, civil liberties, securities related ● Intellectual Property litigation, professional liability, entertainment law, products liability, ● Bankruptcy and bankruptcy litigation and cases involving allegations of commercial fraud. Insolvency Litigation ● Sports Law Jonathan frequently lectures in the areas of witness preparation, successful ● Media and First management of litigation teams in large commercial matters and legal Amendment ethics, and is regularly asked to provide demonstrations of trial techniques New York at beginner and advanced trial advocacy workshops. 30 Rockefeller Plaza 26th Floor Selected Client Representations New York, New York 10112 ● Representation of the National Football League in connection with its T +1 212.918.8961 F +1 212.884.9561 defense of a putative class action alleging claims of breach of contract and fraud against the NFL and the Dallas Cowboys arising out of Super Education Bowl XLV. ● J.D., Tulane ● Appointed to serve as Special Counsel to James W. Giddens as Trustee University Law for the SIPC Liquidation of MF Global, Inc. School, 1997, cum laude, Order of the ● Representation of a Big Four accounting firm in an accountant liability Barristers; Justice action. Tulane University Moot Court Board; ● Representation of the SIPC Trustee in a multimillion dollar liquidation of Winner Phelps a defunct brokerdealer engaged in fraudulent securities trading Dunbar Senior Trial activities. Competition; Winner ATLA National Trial ● Representation of Krispy Kreme Doughnut Corporation in termination of Competition franchise litigation in federal court in which a preliminary injunction was (Regional); Semi obtained to protect Krispy Kreme's intellectual property rights. Finalist ATLA National ● Representation of the five county bar associations of New York City in Trial Competition (National Finals). suit against the Mayor of New York, the City of New York and the ● A.B., American Mayor's Criminal Justice Coordinator regarding New York City's system Civilization, Brown for the provision of indigent defense services. University, 1994, with ● Representation of an international software manufacturer in a trade honors. secret and antitrust action. Bar Admissions ● Representation of a Fortune 500 media company in a breach of contract ● New York suit against the purchaser of a former affiliate. Court Admissions ● ● U.S. Court of Appeals Representation of beverage distribution company in breach of contract for the Second Circuit action regarding distribution agreement. ● U.S. District Court for ● Representation of the manufacturer of steam turbine engines in a multi the Southern District billion dollar commercial fraud and breach of contract action. of New York ● U.S. District Court for ● Representation of insured in a multimillion dollar products liability the Eastern District of action. New York ● Representation of television producers in breach of contract action brought by news division of one of the big four television networks.
● Representation of individual claimant in a Section 1983 action and three week jury trial in federal district court regarding violations of constitutional rights arising from allegations of insufficient medical care.
Publications
● "The Tenant's Remedies For A Landlord's Breach Of Its Obligations To Provide Security," CoAuthor, The Commercial Property Lease Vol. II: Allocating Risk, Controlling Use, Tenant’s Rights and Landlord’s Remedies. (Patrick A. Randolph, Jr. ed., ABA Section of Real Property, Probate and Trust Law 1997).
How to Conduct an Effective Deposition 7 Jonathan Pressment, Esq.
Jonathan D. Pressment [email protected]
Jonathan Pressment is a partner in the Business Litigation practice group in New York. His experience includes the representation of numerous Fortune 500 companies in a variety of complex civil litigation matters. Jonathan has extensive experience in all aspects of case commencement, discovery, motion practice and trial practice in commercial litigation matters. In
addition, Jonathan has experience as lead trial and appellate counsel for Partner clients in matters pending before both Federal and state courts including matters before the United States Court of Appeals for the Second Circuit and the New York State Court of Appeals. Areas of Practice ● Litigation/Trial Jonathan's experience covers an array of practice areas, including breach of Practice contract disputes, intellectual property, civil liberties, securities related ● Intellectual Property litigation, professional liability, entertainment law, products liability, ● Bankruptcy and bankruptcy litigation and cases involving allegations of commercial fraud. Insolvency Litigation ● Sports Law Jonathan frequently lectures in the areas of witness preparation, successful ● Media and First management of litigation teams in large commercial matters and legal Amendment ethics, and is regularly asked to provide demonstrations of trial techniques New York at beginner and advanced trial advocacy workshops. 30 Rockefeller Plaza 26th Floor Selected Client Representations New York, New York 10112 ● Representation of the National Football League in connection with its T +1 212.918.8961 F +1 212.884.9561 defense of a putative class action alleging claims of breach of contract and fraud against the NFL and the Dallas Cowboys arising out of Super Education Bowl XLV. ● J.D., Tulane ● Appointed to serve as Special Counsel to James W. Giddens as Trustee University Law for the SIPC Liquidation of MF Global, Inc. School, 1997, cum laude, Order of the ● Representation of a Big Four accounting firm in an accountant liability Barristers; Justice action. Tulane University Moot Court Board; ● Representation of the SIPC Trustee in a multimillion dollar liquidation of Winner Phelps a defunct brokerdealer engaged in fraudulent securities trading Dunbar Senior Trial activities. Competition; Winner ATLA National Trial ● Representation of Krispy Kreme Doughnut Corporation in termination of Competition franchise litigation in federal court in which a preliminary injunction was (Regional); Semi obtained to protect Krispy Kreme's intellectual property rights. Finalist ATLA National ● Representation of the five county bar associations of New York City in Trial Competition (National Finals). suit against the Mayor of New York, the City of New York and the ● A.B., American Mayor's Criminal Justice Coordinator regarding New York City's system Civilization, Brown for the provision of indigent defense services. University, 1994, with ● Representation of an international software manufacturer in a trade honors. secret and antitrust action. Bar Admissions ● Representation of a Fortune 500 media company in a breach of contract ● New York suit against the purchaser of a former affiliate. Court Admissions ● ● U.S. Court of Appeals Representation of beverage distribution company in breach of contract for the Second Circuit action regarding distribution agreement. ● U.S. District Court for ● Representation of the manufacturer of steam turbine engines in a multi the Southern District billion dollar commercial fraud and breach of contract action. of New York ● U.S. District Court for ● Representation of insured in a multimillion dollar products liability the Eastern District of action. New York ● Representation of television producers in breach of contract action brought by news division of one of the big four television networks.
● Representation of individual claimant in a Section 1983 action and three week jury trial in federal district court regarding violations of constitutional rights arising from allegations of insufficient medical care.
Publications
● "The Tenant's Remedies For A Landlord's Breach Of Its Obligations To Provide Security," CoAuthor, The Commercial Property Lease Vol. II: Allocating Risk, Controlling Use, Tenant’s Rights and Landlord’s Remedies. (Patrick A. Randolph, Jr. ed., ABA Section of Real Property, Probate and Trust Law 1997). 7/11/2013
Depositions 101: From Taking to Defending
Jonathan Pressment
© 2013 Haynes and Boone, LLP
Depositions 101: From Taking To Defending
Part One: Taking Depositions
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Taking Depositions
Depositions are an important source of information that may be used to advance your case or defense through: o Dispositive Motions; or o At trial
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Planning For the Deposition
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Planning For the Deposition
Step One: Understand Your Claims and/or Defenses
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Planning For the Deposition
Step Two: Know Your Evidence
o Speak with your client o Review the other side’s production o Review your own production
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Planning For the Deposition
Step Three: Choose The Deponents
o Federal Rule 30(a)(2)(A)(i): absent a stipulation parties must obtain leave if the deposition would result in more than 10 depositions being taken under Rule 30 or Rule 31 (depositions by written questions).
o New York State: No state limit on the number of depositions. Check Your Judge’s rules.
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Planning For the Deposition
Step Four: Prepare, Prepare, Prepare . . . o Know the Law (Preparation Part 1) Review case law governing your claims and defenses Determine the potential relevance of the witness to your legal theories.
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Planning For the Deposition
Step Four: Prepare, Prepare, Prepare . . . o Research the Witness (Preparation Part 2) Review documents pertaining to witness to be deposed (productions as well as outside research). Review witness (client) interviews – does the witness have information not revealed in documents. Prior testimony or testimony of other witnesses.
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Planning For the Deposition
Step Four: Prepare, Prepare, Prepare . . . o Create a “Witness File” (Preparation Part 3) Documents (potential exhibits) - ordered by topic - ordered chronologically Testimony (track organization of documents) Notes
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Planning For the Deposition Step Four: Prepare, Prepare, Prepare . . . o Create an Outline (Preparation Part 4) Determine an organizational scheme for your deposition (chronological order, topical, hardest first, etc.). Formulate questions for each topic you intend to cover (link questioning to exhibits). Use the witness file to guide you in your questioning – a good file makes creating an outline even easier. Make sure to include questioning you need for your case. Do not write a script, but a guide
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Planning for the Deposition
Court Reporter • Choose the right court reporter o A good court reporter can keep things running smoothly; a bad court reporter can ruin your transcript o If possible, use someone you, or your colleagues, know o The court reporter must be qualified to take the deposition Subject matter Nature of the deposition Need for expedited transcript
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Planning for the Deposition
Location and Type of Deposition • Consider whether you would prefer to take deposition at your own office, adversary’s office, or neutral location o May establish a precedent for the case o Determine need for access to colleagues, materials o Ability to vet the facilities • If deposition will be videotaped, that should be noted in deposition notice/subpoena
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Planning for the Deposition
Know the Rules of the Deposition • Make sure you are familiar with all applicable rules governing the deposition o Federal or state civil procedure – How much time will you have? o Local rules o Case stipulations and court orders
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Planning for the Deposition
Out of State Depositions o Make sure you are admitted to practice in the jurisdiction, if necessary
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The Deposition
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Starting Points
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At the Start of the Deposition • Give a copy of the case caption to the court reporter before the deposition begins. • Start the deposition by asking the Court Reporter to swear in the witness on the record. • Many court reporters will ask counsel to identify themselves. If necessary, ask that everyone in the room state their name and who they represent (or are affiliated with).
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Stipulations
Do not simply agree to the “usual stipulations” o Do you know what the “usual stipulations” are? Even if you do, opposing counsel may not agree. o You want a clear written record.
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Stipulations
• Stipulations to Consider o The applicable state or federal rules governing the deposition
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Stipulations
o Agreement to “waive objections” If you agree to “waive objections” or “reserve objections except as to form,” it typically means that counsel may, and should, make any objections to the form of the question at the deposition, but any other objections should be reserved for trial and are not waived. See NYCPLR 3115 (objections to form are waived if not made – objections to competency of witness or admissibility of the evidence are not waived)
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Stipulations
o Agreement to waive the requirement to sign the transcript. Under the Federal Rules, if the deponent wants an opportunity to read and correct the transcripts, it must be requested.
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Stipulations
o Objection by one is an objection by all – appropriate for multi-party cases.
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Stipulations
o Case-specific stipulations Put on record if they apply to your deposition (e.g. confidentiality concerns)
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Opening Instructions
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Sample: Opening Instructions
Let me explain to you what happens during a deposition. I will ask you questions, and my questions and your answers will be recorded by the court reporter.
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Sample: Opening Instructions
Because the court reporter is creating a written record of your testimony, you will need to speak loudly enough that the court reporter can hear you clearly. The court reporter will not be able to record a nod or shake of your head, we need verbal answers. Further, “uh-huhs” and “yups” will not suffice. We do not want to have the court reporter interpret your answers. Do you understand?
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Sample: Opening Instructions
Do you understand that even though there is no Judge with us, that you are testifying under oath today and you are sworn to tell the truth?
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Sample: Opening Instructions
It is also important that we do not talk over each other because it is difficult for the court reporter to take down what two people are saying at the same time. To prevent that it is important for you to let me finish my questions before you begin answering. And I will let you finish your answers before I ask a question. Do you understand?
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Sample: Opening Instructions
During the deposition, I may ask you a question that you do not understand. If you do not understand my question for any reason, tell me and I will try to rephrase the question. If you do answer a question I will take it that you understood the question and provided a truthful response, do you understand that?
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Sample: Opening Instructions
In addition, from time to time we will take breaks today. If you need a break at any time, please let me know. We will not be able to take a break if a question is pending, but once you finish your answer to my question, we can take a break. Do you understand?
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Order of Questioning
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Preliminary Questions on Competency
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Witness Competency Questions
• Whether to start with competency issues is a matter of both style and context
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Sample: Competency Questions
Are you taking any medication or drugs of any kind which might make it difficult for you to understand and answer my questions today?
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Sample: Competency Questions
Is there any reason that you can think of that may prevent you from responding truthfully and accurately to my questions today?
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Proposed Order of Questioning
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Proposed Order of Questioning Options: o Chronological o Topical It is generally a good idea to get some background unless you believe there is a strategic advantage to starting with substantive questioning
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Proposed Order of Questioning
I. Prior Deposition Experience o When o What case (did it involve any of the parties?) o Outcome (Is case still pending?)
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Proposed Order of Questioning
II. Preparation For Deposition o How did you prepare o With whom did you speak o When? For how long? o Review documents – Did you produce documents? o Speak to any other witnesses about case? (i.e. did they compare “stories”?) o Review any transcripts (or summaries)?
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Proposed Order of Questioning
III. Personal Background o Personal information o Education o Health o Employment Prior positions Roles/responsibilities Reporting duties Terminations/resignations
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Proposed Order of Questioning
IV. The Notice or Subpoena o It is always a good idea to mark the deposition subpoena or notice as an exhibit, especially in a 30(b)(6) deposition.
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For 30(B)(6) Witnesses
• Go over responsibilities and topics o Do you understand that you have been designated to provide testimony today pursuant to Rule 30(B)(6) of the Federal Rules of Civil Procedure o Can you explain to me what that means? o When were you informed that you were designated as ABC Co’s 30(b)(6) representative
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Proposed Order of Questioning
V. Subject Matter o Involvement in dispute o Chronological or Topic-based approach o Exhibits where necessary
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Marking Exhibits • Sample exhibit procedure: o Ask the court reporter to mark the Exhibit. Q. Please mark this as Plaintiffs’ Exhibit No. 1 Make sure you know the numbering convention for the case. Numbers may continue from witness to witness, or include witness name in the numbering (Smith 1) o Give a copy of the exhibit to opposing counsel; keep a copy for yourself and write the number on it.
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Marking Exhibits
o Give Marked Exhibit to Witness, and have the witness identify it for the record. Q. Mr. Smith, I am showing you a document that has been marked as Plaintiffs’ Exhibit 1, which is bates-numbering D004 to D005. Do you recognize this document?
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Marking Exhibits
o Establish foundation Q. What is Exhibit 1? Is this a true and correct copy of ? Please turn to the second page of the document which is bates-numbered D005. Is that your signature at the bottom of the page? If the exhibit is a business record, immediately establish the business record foundation based on the applicable rules of the jurisdiction.
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Handling the Difficult Adversary
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Instructions Not to Answer
• Fed. R. Civ. P. 30: Instructions not to answer are only permissible to preserve privilege, to enforce a limitation ordered by the court (e.g. scope of the deposition), or to present a motion under Rule 30(d)(3) (e.g. suspending deposition to move for a protective order based on questions designed to harass witness)
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Speaking Objections
• Speaking objections are improper in most, if not all, jurisdictions these days. o Create a record o Have the applicable rule in hand so that you can cite it if your adversary uses speaking objections to intimidate you, coach the witness or use up your time. o Consider using a court reporter whose transcripts show the time on each page.
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Speaking Objections
“Form” Objections – The basis for objection is generally satisfied by the statement “objection to form” • What constitutes a proper “objection to the form?” o A form objection is one that challenges the manner in which the question is posed. The reason that the “usual stipulations” require that objections to the form of the question to be made at the deposition (lest the objection be fortified) is that it gives the questioner a chance to rephrase the question to cure the objection.
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Speaking Objections
o Examples of form objections include, but are not limited to: Leading Argumentative Compound Ambiguous Speculative Asked and answered
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Speaking Objections
Form objections do not include hearsay, or objections that go to the admissibility of the testimony or evidence.
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Speaking Objections
If your opponent objects to the form but does not state the specific objection, in many jurisdictions you may ask opposing counsel to state the basis of the objection. Know your applicable rules.
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Conferring with the Witness
It is improper for counsel to confer with a witness in the middle of a question. Have the applicable rule on hand and note your objection for the record.
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Conferring with the Witness
Communications between a witness and counsel during breaks in an ongoing deposition, other than to discuss a privilege, are generally not privileged
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Conferring with the Witness
Although most lawyers speak generally with their witnesses during breaks (“slow down,” “listen to the question”) and answer questions posed during a break by a witness (“am I saying too much?” “why is he asking me about X?”), lawyers need to remember that such communications are arguably not privileged once the deposition begins. Check your jurisdictions.
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Conferring with the Witness
• Chassen v. Fid. Nat’l Inc., No. 09-291, 2012 WL 5865977 (D.N.J. July 21, 2010) (compelling deponent to testify about her communications with counsel during a break), aff’d, 2011 WL 723128 (D.N.J. Jan. 13, 2011)
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Conferring with the Witness
• Ngai v. Old Navy, No. 07-5653, 2009 WL 2391282, at 4-5 (D.N.J. July 31, 2009) (ordering production of text messages sent by counsel to witness during deposition, even if those messages were send during deposition breaks.
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Conferring with the Witness
• E.D.N.Y. Local Civil R. 30.4 (prohibiting counsel representing the deponent from initiating a private conference with the deponent during the deposition, except for the purpose of deciding whether to assert a privilege).
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Conferring with the Witness • Musto v. Transp. Workers Union of Am., AFL-CIO, No. 03-CV-2325, 2009 WL 116960, at 1-2 (E.D.N.Y. Jan. 16, 2009) (E.D.N.Y. Local Civil R. [30.4] does not apply to private conferences between a non-party witness and counsel that does not represent that witness, although such conferences are not privileged; stating, as dicta, that witnesses are always free to initiate private conferences with their own counsel, and the rule only precludes counsel from initiating the conference).
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How to Handle Improper Behavior • Stay on the record • Videotape the deposition if foreseeable • You may have the option to call the Court during the deposition, but know your judge and local practice before you do so. • Ask the court reporter to mark sections of the transcript for a ruling if you intend to file a motion during or after the deposition, and if necessary, suspend the deposition pending your motion rather than agreeing that the deposition is concluded.
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Improper behavior
JJ Video Clip
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Handling the Difficult Witness
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Videotape the deposition if foreseeable
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If Witness Gives One Word Answers
• Use open-ended questions • Use follow-up question • Press on!
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How to Handle Run-on Answers
• Try “one-fact” questions • Note time limits on the record and state intention to move for relief if run-on answers continue. Suspend the deposition rather than agreeing it is concluded if you do run out of time • Rein the witness in – “that is not my question”
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How to Handle Evasive Answers
• Repeat the question as many times as needed until you get an answer • Have the court reporter read the question again. • Try restating and summarizing what the witness is saying and asking the witness if your summary is correct. • Explain to the witness what you did not ask, and then repeat your own question.
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Claimed Confusion
• If the witness claims not to understand the question, ask what is unclear about it. • If they ask for definitions of words, ask for their definition.
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Defending Counsel is Responsible for the Witness • GMAC Bank v. HTFC Corp., 248 F.R.D. 182, 184-85 (E.D. Pa. 2008) (defendant’s rudeness, as well as his failure to answer questions at his deposition and his giving evasive and non- responsive answers when he did answer, warranted grant of plaintiff’s motion to compel as well as sanctions for both defendant and his counsel).
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Video Deposition
• In federal court, intention to videotape a deposition must be stated in the subpoena or notice of deposition • Witness may object to videotaping of deposition o Fanelli v. Centenary College, 211 F.R.D. 268, 271 (D.N.J.) 2002 (witness’ anxiety regarding videotaped deposition not “good cause” for protective order prohibiting videotaping of depositions).
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Video Deposition
Reasons for videotape a deposition: • Preserves testimony for trial; more palatable for jury. • Video deposition may be more likely (than transcripts) to be accepted as substitute for trial testimony.
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Video Deposition
• Captures non-verbal communications by witness (posture, tone, eye contact, inflections, etc.). • Reduces cues and coaching of witness by defending counsel. • Keeps witness on “hot seat,” encouraging good behavior. • Reduces colloquy/off the cuff comments by the witness and all lawyers in the room because it is all recorded unless video is stopped.
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Video Deposition • Enhances credibility for “good witness”; diminished credibility for “bad witness.” • Surprising the witness is more effective on video than on transcript. • Video tape depositions can be more effective for impeachment at trial when the jury can see as well as hear the prior inconsistent statement. • Witness considerations. (i.e., is the witness nervous, pompous, argumentative, irritable, photogenic?)
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Sanctions
Vioni v. Am. Capital Strategies Ltd., No. 08 CIV. 2950, 2011 WL 4444276, at 5-8 (S.D.N.Y. Sept. 26, 2011) (attorney sanctioned $6400 or $400 per wasted hour of depositions, when attorney persisted in taking irrelevant depositions after being warned by Court).
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Technology
• Thoughtful use of technological aids, such as LiveNote and Video-streaming, can be of great value to the attorney at a deposition. However, counsel must also be vigilant to maintain human contact with the witness, both friendly and adverse, as appropriate, and not to allow a technological barrier to come between the questioning attorney and the witness
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LiveNote
• LiveNote offers real-time viewing of a transcript in progress and is invaluable because it allows counsel to see the words on the page as a court might see them. Be aware of the various additional features LiveNote offers for both taking and defending attorneys:
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LiveNote
o Marking testimony as it is being given, which may be helpful for correction with the witness or court reporter, or for follow up and cross- examination with the witness. o Pre-labeling testimony markers allows testimony to be quickly categorized during the deposition. o Word wheel search and full search tools aid in the rapid location of relevant testimony.
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LiveNote
o Text and video may be streamed in real-time not only to those attending the deposition, but also to other members of the legal team (other lawyers, experts) wherever they are, which may be cost-saving and convenient. For example, a minor party that does not plan to question the witness much or at all can avoid flying overseas and view the testimony in real time in his home city.
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Defending Depositions
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Before You Can Prepare the Witness, You Have to Prepare Yourself • Review and update all relevant information regarding the case (governing complaint, relevant documents, other deposition testimony, relevant legal research and research concerning publicly available information) • Prepare a chronology of documents in order to help create a coherent narrative of events.
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Before You Can Prepare the Witness, You Have to Prepare Yourself • Keep the goal of the deposition in mind and then structure your preparation to meet that goal (summary judgment motion, cross-examination). o Understand your opponent’s legal theory and recognize your own vulnerabilities. What would you ask if you were in your opposing counsel’s shoes?
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Before You Can Prepare the Witness, You Have to Prepare Yourself • Construct your own theory of the case and identify the main differences with your opponent.
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Before You Can Prepare the Witness, You Have to Prepare Yourself • For defense counsel: o Think ahead to your defenses o Think ahead to summary judgment
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Preparing the Witness
Once you are prepared, then you can get the witness ready • Good witness preparation is the key to a good outcome. o Keep things fresh: Prepare the witness as close to the deposition date as possible, allowing for multiple sessions where necessary.
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Preparing the Witness
o Stay on the same page Explain the opposing party’s theory of the case and important issues to the witness (let the witness know where they fit in the big picture of the case)
Explain your theory of the case and defenses to the witness (let the witness know where they fit in the big picture of the case)
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Preparing the Witness
o To avoid surprises, show the witness documents they likely will see at the deposition and review central themes raised by the documents. Careful: documents shown in preparation for deposition risk waiver of attorney-client privilege For sensitive documents, question witness first on subject matter before showing document to them. You may want to avoid showing them the document.
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Preparing the Witness
In a leading decision, Sporck v. Peil, 759 F.2d 312, 316 (3d Cir. 1985), the United States Court of Appeals for the Third Circuit held that “the selection and compilation of documents by counsel in this case in preparation for pretrial discovery falls within the highly-protected category of opinion work product.”
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Preparing the Witness
The Third Circuit held that the questioner was not entitled to a blanked identification of all documents that had been selected for review. The court noted that such questioning fails to establish a foundation for purposes of Rule 612. Analyzing the apparent conflict between Evidence Rule 612 and Civil Procedure Rule 26(b)(3), the court held that the questioner was only entitled to know which documents informed the witness’s testimony on a topic-by-topic basis.
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Preparing the Witness
In summary, consistent with ethical obligations, an attorney defending a deponent may instruct the witness not to answer the question, “What documents did you review with your attorney to prepare for this deposition?” To the extent the questioning attorney gets more specific, asking whether a particular document was used in preparation, or whether a particular topic area of testimony was informed by documents, instructions not to answer may not be appropriate.
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Preparing the Witness
See, e.g., Application of Minebea Co., 143 F.R.D. 494, 500 (S.D.N.Y. 1992) (Sweet, J.) (allowing non-party witnesses to be questioned about whether they reviewed documents in preparation of their depositions and the identity of those documents, but not permitting questions into whether the documents were provided by plaintiff’s counsel, as that would reveal mental impressions of plaintiff’s counsel).
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Preparing the Witness
• Review the general rules of a deposition. o Lessen anxiety by letting the deponent know what to expect. Explain the setting Let them know who will be in the room Describe opposing counsel’s style Describe your role, etc.
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Preparing the Witness
o Videotaping Explain to witness how to dress Explain to witness that all physical movements captures (looking down, frowning, fidgeting, etc…) and that a lot of communication is non-verbal Watch your own mannerisms-do not object with sarcasm and be polite with your adversary.
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Preparing the Witness
Importance of performing well-can help resolve case Performing poorly on video is much more damaging than on a transcript
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Successful Witness Strategies
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Successful Witness Strategies
• Always tell the truth
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Successful Witness Strategies
Don’t guess at what the lawyer is trying to ask. Understand the question before answering-there’s nothing wrong or embarrassing about asking for a question to be rephrased – even more than once. Pause after each question. Give your attorney time to object before answering. Pauses also prevent the deposition from becoming too “conversational” and lulling the witness into divulging too much.
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Successful Witness Strategies
Answer only the question asked Answer only what you know Use “I” not “We,” which suggests further places for opposing counsel to gather information.
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Successful Witness Strategies
 Listen to your attorney’s objections for a clue-he or she might be sending you a message
 Don’t get frustrated if the whole story isn’t getting out yet. No need to tell your side of the story – that’s for trial.
 Depositions warrant Miranda Rights – Don’t go on the offensive
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Successful Witness Strategies o A deposition isn’t for chit-chatting, however casual the attorney may seem. o He/She is not your friend. You don’t need to follow normal conversation etiquette. Think before you answer If it’s awkward, it’s awkward. Don’t fill silences Say you don’t remember rather than trying to recall
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Successful Witness Strategies Avoid definitive statements unless you really are certain Avoid referring to documents (Do not bring documents) Ask for breaks when you need them
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Preparing a Difficult Witness
• If your witness is angry, verbose, pompous, a mumbler (or all of the above), the answer is always preparation. • Consider videotaping a practice deposition and watching it with the witness. • If the stakes are very high, consider engaging a communications consultant.
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Notes on the 30(b)(6) Witness
The preparation of a 30(b)(6) witness is unique and must be done carefully • You are speaking for more than yourself: explain the distinction between testifying as a representative of the corporation • Explain the consequences of answering “I don’t know” or “I don’t remember” • Explain how the witness can get his/her recollection refreshed.
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Notes on the 30(b)(6) Witness
• The deposition testimony of a Rule 30(b)(6) witness binds the corporation. See Crawford v. Franklin Credit Management Corp., 261 F.R.D. 34, 38 (S.D.N.Y. 2009) (“To satisfy [Rule 30(b)(6)], the designated organizational representative must be able to provide ‘complete, knowledgeable and binding answers.’”).
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Notes on the 30(b)(6) Witness
• If the designated deponent does not possess personal knowledge of the matters set out in the deposition notice, the corporation is obligated to prepare the witness so that the witness can give knowledgeable and binding answers for the corporation. Bank of New York v. Meridien BIAO Bank Tanzania Ltd., 171 F.R.D. 135, 151 (S.D.N.Y. 1997) (“[T]he duty to present and prepare a Rule 30(b)(6) designee goes beyond matters personally known to that designee or to matters in which that designee was personally involved”)
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Notes on the 30(b)(6) Witness
• Rule 30(b)(6) implicitly requires a corporate designee to review all matters known or reasonably available to the corporation in preparation for the deposition even if the documents are voluminous and reviewing them would be burdensome. A&E Prods. Group. L.P. v. Mainetti USA, Inc., 2004 U.S. Dist. LEXIS 2904 (S.D.N.Y. Feb. 25, 2004)
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Notes on the 30(b)(6) Witness
• The witness can testify on matters outside the witness’s personal knowledge, but cannot testify regarding matters where the company itself lacks knowledge. In re Omeprazole Patent Litigation, 490 F. Supp. 2d 381, 520 (S.D.N.Y. 2007)
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Defending the Deposition
Rules and Techniques for Defending the Witness
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Be Their Bodyguard: when you can
• Protect your witness through objections o Prevent misleading questions o Deny privileged information o Guard the record by clearing up potential misunderstandings Correct answers that are vague or unclear
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Be Their Bodyguard: when you can
o Alert the witness to problematic areas o Disrupt opposing counsel’s rhythm
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The Use of Objection Counsel preparing to defend a deposition must decide whether they will object to improper questions by stating the single work “objection,” leaving the grounds ambiguous unless clarification is sought by the questioning attorney, or by succinctly stating the ground for the objection by saying “objection vague” or “objection ambiguous” or, more generally, “objection, form.” There is some divergence of authority as to whether the latter technique is excessive “suggestive” to the witness.
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The Use of Objection
See Auscape Int’l v. Nat’l Geographic Soc’y, No. 02 Civ. 6441(LAK), 2002 WL 31014829, at 1 (S.D.N.Y. Sept. 6, 2002) (ordering objecting attorney to state only “objection” without providing basis of objection unless requested by questioning attorney. In re Rezulin Prods. Liab. Litig., No. 00 Civ. 2843 (LAK), 2001 WL 366240, at 6 (S.D.N.Y. Mar. 2, 2001) (same).
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The Use of Objection
But see Consol. Sewing Mach. Corp. v. Sanford, 19 Misc.3d 1114(A), 2008 WL 918280, at *6 (Sup. Ct. N.Y. County Mar. 21, 2008) (permitting deponent’s counsel to make the objection and succinctly state the basis for same without inviting extensive colloquy”) (emphasis added).
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The Use of Objection • There are many available objections but, in general, “as to form” must suffice: o Form o Compound o Vague o Lack of relevance o Asked and answered o Hearsay o Ambiguous
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The Use of Objection
• Objections to step-up: o Calls for legal conclusion o Lack of foundation o False premise o Misstating prior testimony o Argumentative
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The Use of Objection
Protect the Privilege Instruct not to answer if attorney-client privilege
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Conferring with the Witness
• No coaching allowed, but the witness should be attuned to what you are doing o Controversy over whether its improper to consult with witness during breaks Per Local Rule 30.4, in Southern and Eastern Districts, an attorney is permitted to consult with his or her witness unless “a deposition questions is pending.” Even this limitation is waived when that pending question may trigger an issue of privilege.
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Conferring with the Witness
o Outside of New York City, things are not as open. o In New Jersey, Pennsylvania and Delaware, attorneys in federal cases may not consult with the witness – even during a break – to discuss substantive matters.
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Dealing with a Difficult Adversary
o Don’t let the adversary get inside your head and distract from your job of protecting the witness o Pick your battles – don’t bicker over smaller issues o If you can’t play nice, make a record that a judge could use to resolve the issue o Decide when it is time to pick up the phone and get the judge involved
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Deciding Whether to Cross-examine
o Can give opposing counsel notice of sensitive subject areas and insight into your thought process o However, clearing up the record may be necessary to prevent summary judgment
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LW Video Clip
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Protective Order
• Standard protective orders relating to the designation of “confidential” material typically include a provision relating to the designation of deposition transcripts (and DVDs) as confidential either at the deposition or within a certain number of days thereafter.
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Steps to Take When False Testimony is Offered
• Determine whether you merely think your client is lying or whether you know your client is lying. • If you know your client is lying in the deposition, determine whether the false testimony your client has offered in the deposition is material to the issues in the case.
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Steps to Take When False Testimony is Offered
If the false deposition testimony constitutes “material evidence” in the case in which you represent your client, speak to your client confidentiality and seek the client’s cooperation with respect to the withdrawal or correction of the false deposition testimony.
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Steps to Take • If your client refuses to cooperate in the withdrawal or correction of the false deposition testimony, advise your client that, as a lawyer, your duty of candor to the court supersedes even your duty of confidentiality to the client. • If your client still refuses to cooperate in the withdrawal or correction of the false deposition testimony, determine whether withdrawal from representation of the client is permitted and will undo the effect of the false deposition testimony.
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Disclosing the Truth Trumps Client Confidentiality Taken together, the Rules of Professional Conduct establish that when a lawyer knows material testimony offered by his or her client is false, the lawyer’s duty to take reasonable remedial measures, “including, if necessary, disclosure to the tribunal,” (N.Y. Comp. Codes R. & Regs. Tit. 22, § 1200-3.3(a)(3)(2009)), outweighs even the lawyer’s duty not to reveal confidential information obtained during representation of the client.
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Disclosing the Truth Trumps Client Confidentiality See NYSBA Comm. On Prof’l Ethics, Formal Op. 837 (2010) (after client admitted that document admitted in arbitration was forged and client’s related testimony was partially false, attorney was obligated to disclose information to the tribunal if necessary to remedy effects of false testimony and evidence).
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Effective and Persuasive Legal Writing 8 Hon. Gerald Lebovits
Hon. Gerald Lebovits
Judicial Offices Judge, Civil Court of the City of New York, New York County, Elected, 2011 to 2021
Judge, Criminal Court of the City of New York, New York County, Appointed, 2011 to 2012
Judge, Housing Court, Civil Court of the City of New York, New York County, Appointed by Chief Administrative Judge, Jonathan Lippman, 2001 to 2006; Re-appointed, 2006 to 2010
Other Professional Experience Columbia Law School, Lecturer-in Law, 2010 to present
Fordham University School of Law, Adjunct Professor of Law, 2011 to present
St. John's University School of Law, Adjunct Professor of Law, 2007 to 2012
New York Law School, Adjunct Professor of Law & Moot Court Faculty Advisor, 1989 to 2007
Supreme Court, New York County, Principal Court Attorney, 1986 to 2001
New York City Legal Aid Society, Criminal Defense Division, New York County, Staff Attorney, 1982 to 1986
Carleton University Department of Law, Ottawa, Ontario, Canada, Teaching Assistant, 1975 to 1979
Admission to the Bar NYS, Appellate Division, First Department, 1981
Education LL.M. (in Criminal Justice), New York University School of Law, 1986
M.C.L., Tulane University School of Law, 1980
LL.L., University of Ottawa, Faculty of Law, Civil Law Section (Canada), 1979
Cert., Dalhousie University School of Law (Canada), 1978
Cert., Sherbrooke University School of Law (Canada), 1978
B.A. (Law & Psychology), Carleton University (Canada), 1976
Publications The Legal Writer Column, New York State Bar Journal (Page 64), Monthly Since July 2001
New York Residential Landlord-Tenant Law and Procedure - Co-author, 4th ed. 2011
Small Claims Offers Prompt Adjudication Based on Substantive Law, 70 New York State Bar Journal 6, Dec. 1998
Ethical Judicial Opinion Writing, 21 Georgetown J. Legal Ethics 237, Spring 2008
Judges' Clerks Play Varied Roles in the Opinion Drafting Process, 76 New York State Bar Journal 34, July/Aug. 2004
Authored numerous articles in the Landlord-Tenant Practice Reporter, the New York Real Property Law Journal, and the Landlord-Tenant Monthly, 1997-2011
Advanced Judicial Opinion Writing, New York State Office of Court Administration (7th Ed.), 2005
Suppression Law, Chapter in the New York City Criminal Court Judges' Benchbook, 1996-2005 Authored numerous articles on Family Court, Small Claims, and judicial ethics in the New York Law Journal
Authored numerous articles on criminal law and procedure for the New York State Court System, 1986-2001
Professional & Civic Activities President, Association of Housing Court Judges, 2009 to 2010
Co-Chair, Committee on Landlord-Tenant Proceedings, New York State Bar Association, 2006 to 2010
Officer (First Vice-President, Secretary, Treasurer), Network of Bar Leaders, 1998 to 2001
Chair, Law Program at the New York City High School for the Humanities, for the New York County Lawyers' Association, 1999 to 2002
President, Association of Small Claims Arbitrators, New York City Civil Court, 1996 to 1998
Arbitrator, United States District Court, Eastern District of New York, 1995 to 2001
Special Master, New York State Supreme Court, Civil Term, 1997 to 2001
Chair, Joint Committee on Fee Disputes and Conciliation for the 1st Department, 1999 to 2001
Secretary, Civil Court Committee, New York City Bar Association, 1999 to 2002
Master, American Inns of Court, 1997 to 2005
Wish Granter, Make-a-Wish Foundation, 1996 to 2001
Divisional Chief Referee, Westside Soccer League, New York City (AYSO), 1998 to 2003
MAY 2010 VOL. 82 | NO. 4 JournalNEW YORK STATE BAR ASSOCIATION
Retirement Accounts and Special Needs Planning
by Jonathan P. McSherry Also in this Issue Consumer Class Actions Discovery Out-of-State Same-Sex Marriage Point of View: Judicial Reform THE LEGAL WRITER BY GERALD LEBOVITS
Writing Bad Briefs: How to Lose a Case in 100 Pages or More
riting a really bad brief — a briefs, judges will notice a bad cover. write each paragraph in a different brief so bad you’re sure to They’ll assume that if you don’t care typeface. If you really want to signal Wlose your case — is a skill about presentation, you probably that you and your brief are losers, few attorneys acquire. Only a select won’t care about getting the law right. write each sentence in a different type- few can do that more than once or Include a border, preferably with a sea- face: one in Times New Roman, anoth- twice in a lifetime. sonal motif. Flowers and snowflakes er in Courier, and a third in Garamond. You might wonder why you’d ever add a great touch. If the court has spe- When neon lights fail, bold, under- want to lose a case. Perhaps you hate cific requirements about how the cover line, and italicize, preferably all at your client. Let’s face it: Some clients should look, ignore those rules. Judges once, and all in quotation marks. How are scam artists, especially those who have little sense of style anyway. else are you going to emphasize your don’t pay you. Perhaps you hate your Then reverse the caption. If, at the lack of forthcoming content, show sar- client’s case. On an ethical level, the trial level, the People of the State of casm, and prove your paranoia? Then world will be better off, frankly, if New York had prosecuted the defen- uppercase as many words as you can. some of your clients lose. Or perhaps dant, make it look on appeal as if Capitalizing excessively makes your you like your client, but you real- the defendant-appellant is suing the writing memorable, albeit unreadable. ize that your client will lose sooner People. If you include a caption, use a Black ink signals professionalism. or later. You might want to throw typeface like Old English Text or any Don’t use it, unless you want to win. your client’s case before your legal fees other font that looks like hieroglyphics. Make your brief ugly by using baby grow too high. Or perhaps you’re in Omit your firm’s name and your name pink or sky blue ink. The judge will league with your adversary. The job if you want to disassociate yourself notice the cute feminine or masculine market is tough, after all; maybe you’re from your loser client. charm. trying to get a job at your adversary’s It’ll be easier for your client to go If you want to irritate a judge, don’t law firm. Or perhaps you want to down in defeat if you leave little white include page numbers at the bottom of ingratiate yourself with a judge who’ll space on a page. The white space is each page. Judges should know how probably rule against your client any- the space in the margins and between to count. way. Lawyers need to think about words, sentences, and paragraphs. The Include lots of footnotes, all in a their next case, don’t they? Or perhaps more words you put on a page, the small typeface. That’ll cause the judge you’ve learned that your client has greater your chances of losing. Judges to dwell on the irrelevant red her- shallow pockets, and you need to cut will know right away that they’re read- rings in your case. Burying substantive your losses and move on before your ing a losing brief. No need for margins. arguments in footnotes is how you’ll firm downsizes you. That can happen Margins were created for legal-writ- get judges and their law clerks to make a lot these days. ing teachers to critique your work in law, even if the law they’ll make favors The reasons you might want to lose law school. Judges, too, need margins your adversary. Great law started in are many, and writing a bad brief is a because their eyesight has dimmed the footnotes. Ask any Supreme Court key to losing. For those lawyers who over the years, so don’t give them any. clerk. want to lose — and lose big — this Your goal is to make sure the judge To lose, don’t bind your brief. If column’s for you.1 won’t read your brief. you must bind it, use a rubber band The more typefaces in your brief, or string. That’ll help the judges lose Rule #1: Ugly’s in the Eye of the the more you’ll distract the judge from some or all the pages. Or bind the Beholder. finding any good arguments your cli- brief with a metal clip with razor- Stimulate readers visually. Make sure ent might have. You’re closer to losing sharp edges. You spilled blood writing you have a bad cover. Because first than you think if your brief looks like the brief. Why shouldn’t the judge impressions count when it comes to a ransom note. Challenge yourself to Continued on Page 56
64 | May 2010 | NYSBA Journal The Legal Writer as they can think of and arrange them help you win cases. If losing is your Continued from Page 64 in alphabetical order. Like a law school goal, forget what the experts told you. and law clerk? They’ll reward your exam, a brief is all about issue spotting, Never weave a theme or theory of thoughtlessness when they write their no? Besides, if you don’t include all the case into the brief. Themes and decision. If you decide to bind your the atmospherics, you won’t preserve theories tell the judge what your case brief, make sure the binding prevents issues for your appeal. Having many stands for — something about which the judge from reading the brief. Every issues means you’ve thought about your judge should remain clueless. A time the judge turns the page, the brief your case in depth. Put substantive confused judge means a happy client. should snap shut. When submitting issues first. Leave dispositive issues for And happy clients want you to write the brief, include a paperweight to the end. Save jurisdictional issues for about why your adversary is a jerk, not hold the brief open. The judge might the last page. Doing so will catch the about pretentious and arcane themes think it’s an exhibit. judge’s attention. Not. and theories. Non-gender-neutral writing is like a Don’t organize your arguments. Let Invert the parties’ names. Write bump on the road that focuses travel- the judge figure out what’s important. “appellee” when you mean to write ers on the trip rather than the destina- That’s not your job. If you’re dealing “appellant.” Never use your client’s tion. Make the judge dwell not on your with a conscientious judge, raise facts name or your adversary’s name. But content but on why you used “he” or and issues not in the record. if you must, use acronyms. If your “she.” If you’re not sure whether to use When it comes to standards of client’s name is “Olivia Knight,” use “she,” “he,” or “it,” use all three, like review, who needs standards? Don’t “OK” throughout your brief. If the so: “s/he/it.” There’s nothing like a tell the judge what standard to use. appellant’s name is “Bob Smith,” write few “s/he/its” to make your brief look Judges know what standards apply. If “BS.” exactly like that. they don’t, so much the better. If some- Because good writing is planned, Boilerplate doesn’t work, and that’s one at your firm forces you to discuss formal speech, avoid outlining and why you should use it. Your brief legal standards, mix them up. Judges editing, and use contractions and should look like a cut-and-paste job. appreciate an enlightened discussion abbreviations. about why they have the discretion Include many facts. Leave nothing in the interests of justice to disregard out. Be sure to mention a witness’s eye The longer your brief, a constitutional statute whose plain color, social security number, and fam- language is not subject to reasonable ily history. Including every irrelevant the less the judge will debate. fact, person, place, and date will guar- understand your case. A brief is mystery writing in dis- antee that the court won’t know wheth- guise. Leave the main point for the last er the case involves a tort, a contract, or line of the last page. You want to stun a constitutional wrong. Arrange the Reuse large portions of your brief from the judge. facts in reverse chronological order. another brief you’ve written. Another Divert the judge’s attention from Don’t even think about techniques of tactic is to regurgitate a brief an intern real arguments and focus instead on storytelling, making your client come wrote 10 years ago, and neither update bogus ones. Instead of making legal alive, and offering a succinct, concise nor check the old citations. Go green: arguments, make only policy argu- procedural history from your client’s Recycle your arguments. Diligent ments, regardless of any binding perspective. judges know that clients and cases are authority that rejects the policy you Misstate the law. Make it up if unique. You need to disabuse them suggest. Or avoid policy arguments the court’s holding favors your client. of the notion that your client’s case is altogether. Policy is for politicians. Logic tells you that the law can be so unique. Include at least one argument that wrong. Don’t explain how the law Get an intern to photocopy your doesn’t pass the laugh test. It’s helpful applies to your client’s facts. The law brief. Make sure the text on the pho- if the argument is outrageous. Putting is what it is. You can’t change anything tocopies is crooked and distorted. a smile on the judge’s face: Priceless. about it. Avoid common sense. If you Have the intern photocopy half of each Judges need much structure. That’s pretend that you want to win and you page. You’ll leave the judge wondering why your brief shouldn’t have any. decide to integrate law and fact, start what’s missing. Don’t include headings or subhead- the sentence as follows, “In my humble ings. No need to tell the court in what opinion . . . .” Every judge will know Rule #2: Maintain Order With direction you’re headed. Forget IRAC that true enlightenment will come at Disorder. or any other organizational tool you’ve the end of the sentence. That’s why Winners pick and choose their issues learned. Your law professors made you you’re guaranteed to lose in the end. and arrange them in order of strength. learn that stuff to make their job easier When you’ve lost all hope, and Loser wannabes include as many issues when they graded exams — and to things seem to be going your way
56 | May 2010 | NYSBA Journal despite all your efforts, or lack thereof, Nor should you cite much legal If you’re a stickler for the rules, throw all the pages to the brief down a authority. Judges are busy skeptics. It’s condense your 100-page brief to fit a flight of stairs, collect them, and sub- fun to make them and their law clerks 15-page limit. It doesn’t matter wheth- mit them in the order the pages fell on research from scratch. If they don’t, er the text is too small to read. It’ll give the floor. Every case is a puzzle waiting and they probably won’t, you’re half- the judge an opportunity to take out a to be solved. way to your losing goal line. magnifying glass and see your case for Never write the name of the case what it really is: a loser. Rule #3: Quote Other Judges correctly. Pick one party and leave the Deadlines are for deadbeats. The and Lawyers Because Your Ideas other one out of the citation. Annoying more important it is to the court or Don’t Matter. the court will help you lose. your adversary for you to file a brief No one wants to hear what you have to Don’t cite the official reporters. on time, the more you should be late. say. Someone smart said it before. Just Make the judge and law clerk find the That’s why, when you get a project, repeat it. Using lots of long quotations correct citation. You just know they you shouldn’t start early. means you didn’t do independent won’t. Don’t include a table of contents or research and analysis. Make your lack If you cite, don’t explain why your a table of authorities. Including either of effort obvious. Block quotations are citations are relevant. Mention that the one of them, or including both of them, essential in a loser brief. They waste cases are on point, but don’t say why. If means you’re a showoff. tons of space. And no one reads them. you try to explain the case, make the case The less the judge reads, the likelier more complicated than it is. If you want Rule #6: Make It Personal. you’ll lose. When you quote, misquote. to be analytical and fancy, start every If you’ve tried all the above rules, and How else will you know whether the paragraph with “My adversary’s argu- you still haven’t lost, go for the jugular. judge read your brief? Make sure you ment is mendacious and ridiculous.” Attack the court, opposing counsel, quote dicta, not holdings. Also, quote And never use parenthetical explana- and your adversary with insults, con- language that sounds good, even if the tions after citations. Parentheticals just descending language, snide remarks, case goes against your client’s posi- throw judges a curve. irony, and humor. Destroy them: tion — and even if the case facts are Don’t cite binding cases from your Denigrate their intelligence, motives, different from your case. If you’ve read jurisdiction. Cite oral decisions. Cite and integrity. Tell them how you really it before, it must be true. Don’t bother and quote only from dissenting and feel. Assail the court’s earlier deci- checking other authorities. Quote all concurring opinions. Don’t cite consti- sions. Pour it on like salt on a wound. the language from the source. Include tutions, statutes, or other laws. Critique your adversary’s writing everything. Regurgitate the holdings Never attach the hard-to-find cases skills. It’s obvious you went to the bet- of the case, paragraph by paragraph. or the law you’ve cited. ter law school. Don’t be deferential to Take the holdings from the headnotes. the court. We all know that the judge Better yet, quote from the headnotes. Rule #5: Being a Lawyer Means isn’t the sharpest tool in the shed, just Knowing How to Break the Rules. the more politically connected. If you Rule #4: Citations Are for the The more rules you break, the greater choose to be deferential, make it sound Lame and the Weak. your chances of losing. If the judge pre- phony: Use “respectfully” a lot. If you Miscite your authorities. Get the vol- siding over your case limits your brief do that, the court might not sanction ume of the reporter right, but forget to 15 pages, ignore the page limit. Rules you for frivolous litigation. page numbers. Close enough is good are made to be broken. The judge obvi- Losing briefs are those that demon- enough, unless your goal is to lose ously doesn’t know that more is better. strate how the court is conspiring with by winning. If a decision is longer Exceed the limit. Make it 25, 50, 100, or your adversary against your client and than one page, never give the pinpoint more pages. The longer your brief, the you personally. Use the phrase “in citation. Your goal is to make it so dif- less the judge will understand your cahoots” often. ficult for the judge to find any morsel case. Hauling heavy briefs will give the Tell the court that your adversary of accuracy that the judge will turn to judge the excuse not to read your brief. is a “liar” who likes to tell “fanciful your adversary’s brief. Besides, most judges can’t concentrate fairytales.” From then on, call your String cite whenever possible. If you for more than 10 minutes at a stretch. adversary “My opponent’s ‘esteemed’ have 20 cases for the same proposition, And judges will usually fall asleep — attorney.” If your adversary responds add them all. To show that you’re they call it “deliberating” — by the in kind, keep fighting back. Hit below smarter than the judge — a losing and mid-afternoon from all the hard work the belt. Judges love it when both par- therefore effective strategy — cite after they’ve done digesting their two-hour ties take off the gloves. You’ll entertain every proposition in your brief, even lunches. The longer and more boring your judge, who’ll place bets with for obvious statements. But don’t cite the brief, the faster you’ll get the judge court personnel on which lawyer will the record below. Pointless. to deliberate over your brief. end up the bigger loser.
NYSBA Journal | May 2010 | 57 Rule #7: Bury the Bad Stuff. Punctuation is important, but not in er way to lose: Don’t cite facts at Losers concede nothing. Fight to the a losing brief. You’ve never learned the all. Argue law but never fact. Don’t end, especially on the little things that difference between a comma, period, explain how the case reached the don’t matter. How else will the judge semicolon, and colon. No reason to appellate court. Don’t explain what know that you’re passionate about start now. To make your brief stand happened at trial. the case? out, challenge yourself to write a sen- In your summary of the argument, Include only the facts favorable to tence that covers an entire paragraph. write only one or two sentences detail- your client. Hide unfavorable facts. A Stream of consciousness means you’ve ing what your case is about. If you judge who thinks you’re sleazy will thought about the case. must summarize, make sure your sum- reward you with the loss you seek. Handwritten edits will do. Put mary is longer than your entire argu- Bury the bad cases — the ones that arrows and stars for the judge to follow ment section. go against your client’s position. If your argument. You want your work The heading and subheadings, if you you’ve found a case that goes against to stand out; show the judge that you include any, should be objective and your argument, don’t mention it. Let didn’t put the effort to proofread. If you neutral. You want the judge to think your adversary find it. No point in talk- want to look like you care, handwrite you’re honest and fair — and wrong.
If you choose to be deferential, make it sound phony: Use “respectfully” a lot. Obfuscate with jargon. ing about one meaningless case when the page numbers in black ink in the Label your headings “Introduction,” you have 20 other cases on your side. bottom left-hand corner, right near the “Middle,” and “Conclusion.” Let the law clerks do some research. brief’s binding. Finding the page num- Start every argument in your open- They get paid to do your research. And bers is half the fun in reading a brief. ing by predicting what your adver- they get unlimited access to Westlaw Misspell your client’s name. saries might say. Then don’t say why and LEXIS. You don’t. Count yourself Misspell the judge’s name. If you can’t they’re wrong. fortunate if you never get a chance to remember the judge’s name, call the In your reply briefs, don’t respond address unfavorable cases later. judge “Mr.,” especially if the judge is to your adversaries’ arguments. Restate Don’t cite the record. The past is a woman. everything you’ve already mentioned the past. in your brief. Or, even better, raise new Rule #9: Be Superficial: It’s Not arguments. Rule #8: You’re a Lawyer, Not an the Substance That Counts. Editor. Write emotionally: Show the judge Rule #10. When All Else Fails, Lawyers don’t have time to spellcheck, what matters. Because understatement Confuse Them With Words. proofread, or cite check. Time is money is persuasive, be sure to exaggerate. Write like a real lawyer. Confound with for lawyers. But for judges, seeing Details are what convince, so be con- legalese: “aforementioned,” “here- typos in a brief is like having a cellu- clusory. inafter,” “said,” “same,” and “such.” lar phone go off in a quiet courtroom Don’t tell the court what relief you Obfuscate with jargon: “the case at to the doleful Ramones’ “I Wanna seek. If by some mishap you win, bar” or “in the instant case.” Bore with be Sedated” ballad. Don’t sweat the you’ll at least get the relief you neither clichés: “wheels of justice”; “exer- details. It’s the big stuff that counts in need nor want. cise in futility”; and “leave no stone a brief. Use typos to signal that you’re In a losing brief, the question pre- unturned.” a busy and successful lawyer — albeit sented should be several paragraphs Treasure nominalizations: Turn a loser — with a great practice. long. You’ve got lots of questions, and powerful verbs into weak nouns. Repeat your arguments every judges always think they have lots of Although nominalizations are wordy chance you get. That will guarantee answers. Write the question in a way and abstract, relying on them is good that the judge won’t care even if you’re that the judge will respond with a defi- for losing. Examples: Use “allegation” right on the law. Belabor the obvious. nite “maybe.” instead of “allege,” “violation of” No need for clarity or brevity: In your facts section, include facts instead of “violating,” and “motioned Hapless virtues. that aren’t in your argument section. for” instead of “moved.” Don’t begin paragraphs with topic Include facts that aren’t in the record. Metadiscourse is verbal throat clear- sentences or draft transitions to con- If you must cite the record, direct the ing. That’s why you need to know nect paragraphs. judge to the wrong page. A quick- about this device. Every chance you
58 | May 2010 | NYSBA Journal get, use “it is important to remember,” French, Italian, and Spanish. If you’re just read your brief, typos and all, at “it is significant to note,” “it should be educated, use Latin. The judge will oral argument. ■ emphasized that,” and “it goes without think you’re sui generis. saying that.” Use “it is well settled” Redundancy is necessary in a losing 1. In case you win despite following the foolproof advice in this column, the Legal Writer suggests and “it is hornbook law” to describe brief. Two or more words are better some more articles. They’ll help you lose your next what the less-educated might call a than one. Use the following: “advance case: Sarah B. Duncan, Pursuing Quality: Writing split in authority. planning,” “few in number,” and “true a Helpful Brief, 30 St. Mary’s L.J. 1093, 1132–35 (1999); James W. McElhaney, Twelve Ways to a Bad Use the passive voice everywhere: facts.” Brief, 82 ABA J., Dec. 1996, at 74; Jane L. Istvan & Be obtuse about who’s doing what to Reach for a thesaurus every chance Sarah Ricks, Top 10 Ways to Write a Bad Brief, N.J. whom. Write “The victim was mur- you get. Use different words to mean Law. 85 (Dec. 2006); Eugene Gressman, The Shalls and Shall Nots of Effective Criminal Advocacy, Crim. dered by the defendant” instead of the same thing. Forcing the judge to Just., Winter 1987, at 10; Peter J. Keane, Legalese in “The defendant murdered the victim.” expend energy reaching for a diction- Bankruptcy: How to Lose Cases and Alienate Judges, When the issue is who murdered the ary leaves little time for the judge to 28 Am. Bankr. Inst. J. 38 (2010); Alex Kozinki, The Wrong Stuff: How You Too Can . . . Lose Your victim, obscure the actor altogether: read your brief. Appeal, 1992 BYU L. Rev. 325, 325–29 (1992); Paul “The victim was murdered” should Talk about freedom, justice, equity, R. Michel, Effective Appellate Advocacy, 24 Litig. 19, suffice. and the American dream. Bring up 22–23 (Summer 1998); William Pannill, Appeals: The Classic Guide, 2 Litig. 6 (Winter 1999); Harry Grammar — adverbs, adjectives, the U.S. Constitution even if your case Pregerson, The Seven Sins of Appellate Brief Writing nouns, pronouns, agreement, parallel- has nothing to do with a constitutional and Other Transgressions, 34 UCLA L. Rev. 431, ism, sentence fragments, verb tenses, issue. 433–37 (1986); Harry S. Silverstein & Edwin C. Ruland: How to Lose an Appeal Without Really Trying, fused participles, and gerunds — is Include at least one rhetorical ques- 4 Colo. Law. 831 (1975); Harry Steinberg, The 10 a big blur for some lawyers. Keep it tion in each paragraph. Isn’t that a Most Common Mistakes in Writing an Appellate Brief, that way. Who knew about modifi- good way to tell the judge you’re a N.Y.L.J., Aug. 31, 2009, at S4; Susan S. Wagner, Making Your Appeals More Appealing: Appellate Judges ers? Don’t learn the difference between LOSER? Talk About Appellate Practice, 59 Ala. Law. 321 (Sept. “who” and “whom” and “that” and 1998); Joseph F. Weis, Jr., The Art of Writing a Really “which.” Mixed metaphors will set Conclusion Bad Brief, 43 Fed. Law. 39 (Oct. 1996). you apart from your adversary: Your Writing a bad brief takes preparation GERALD LEBOVITS is a judge of the New York brief will cause the judge to close the and practice. The preparation begins City Civil Court, Housing Part, in Manhattan and barn door after a horse shut it. during law school. Few things academ- an adjunct professor at Columbia Law School Throw in adjectives and even some ic apply to practicing in the real world. and St. John’s University School of Law. He adverbial excesses. Use “clearly” and Lawyers must know the real rules to thanks Alexandra Standish, his court attorney, “obviously,” especially when your writing a bad brief — the things you for her help with humor. Judge Lebovits’s e-mail point isn’t at all clear or obvious. never learned in law school and, likely, address is [email protected]. Use plenty of acronyms, especially the things no one will teach you when those you never define. you practice law. Be cowardly. Include doubtful, If a winning brief makes it easy for timid, and slippery equivocations, the judge to rule for you and want phrases, and words: “at least as far as to rule for you, the loser’s goal is to I’m concerned,” “generally,” “prob- make it hard for the judge to rule for ably,” “more or less,” and “seemingly.” you and to make the judge want to That’s how you show what a lousy rule against you. case you have. If you’re unlucky enough to have Instead of writing in the positive, smart, honest colleagues edit your write in the negative. Appellate judges, brief, ignore their suggestions. Accuse who themselves love expressions like them of being egotistical to deflect any “This case is remanded for proceed- notion that they’re offering helpful ings not inconsistent with this opin- comments. And disregard all com- ion,” will identify with expressions ments offered by your partner or like “This case is not unlike . . . .” supervisor. Their comments might be Have fun and play with language. subversive — and actually favor your Create run-on sentences. Combine client. complicated, multisyllabic words. Sometimes judges will feel so sorry Construct long sentences — learned for you that they’ll wade through your lawyers do that all the time. brief to find a nugget of merit. You Employ foreign words. It behooves might have a chance to win — er, lose you to replace English words with — after all. But if losing is your goal,
NYSBA Journal | May 2010 | 59 FEBRUARY 2010 VOL. 82 | NO. 2 JournalNEW YORK STATE BAR ASSOCIATION
Business Valuation Reports
The Importance of Proactive Also in this Issue Lawyering A Primer on the New York By Peter E. Bronstein False Claims Act and David A. Typermass Employment Waivers and Releases “Moot Points”
Electronic copy available at: http://ssrn.com/abstract=1560584 THE LEGAL WRITER BY GERALD LEBOVITS
Persuasive Writing for Lawyers — Part I
inning writing is persua- Don’t stop until you understand the municated in a simple, understated, sive writing. For you to per- key details. Avoid surprises. unemotional way. The theory should Wsuade, readers, especially Then consult your local rules and all summarize your case. The theory judges, must believe that you, as a applicable rules of procedure. They’ll should, if accepted, secure your rem- lawyer, seek the correct result and that determine your page limit, deadlines, edy. Weave your theory into every part you have the arguments, fact, and law format, and content. Knowing the rules of your brief. to support it. Your job is to help them. from the start will save headaches later. Work your case theory into your Judges are busy, skeptical profes- Then frame the facts into legal issues statement of facts by phrasing your sionals. They can spare but limited and narrow your legal research. You case theory persuasively. You’re not time to consider your case. Judges must don’t need to know everything about writing a law-review article or histori- be able to extract the gist of your case the law before you start. It’s enough cal treatise with a neutral view of the quickly. You must write effectively by to know everything by the time you’re facts. You’re writing to make sure that transmitting only necessary informa- done. Trying to know everything leads the reader agrees with the facts as you tion favoring your position. The way to procrastinating. Like the vice of tell them. Include your theory in every to persuade is to assert your position scapegoating, procrastinating is the opening paragraph after each heading with accurate, confident, credible, sim- enemy of doing it right and getting it and subheading. Weave it into your ple, short, and strong arguments sup- done. presentation of the law and your facts. ported by good storytelling and cita- Once you’re confident that the Outline your brief before you start tions to authority, all written in clear, court has the jurisdiction to address writing. To do so, come up with point concise, precise, and plain English. To your client’s claim or defense, identify headings. Well-written point head- persuade, you must make it easy for the arguments that’ll give your client ings provide a quick summary of your the court to rule for your client and to the remedy it seeks. Select only your argument and answer each question want to rule for your client. strongest, best-supported arguments. presented. There should be one point This column offers some sugges- Discard weak issues. What you include for each ground on which relief can be tions on how to persuade through is as important as what you exclude. granted; if the court agrees with that preparation, organization, honesty, Focus on a few strong arguments, not point it can grant relief, even if it dis- brevity, and editing. many weak ones. agrees with all else. Arrange your issues in order of A point heading comprises a con- Be Prepared strength; lead with your best points clusion or an action that the writ- To tell a persuasive story, you need to first. If two issues are equally strong, er wants the court to take, together know the background, the characters, lead with the argument that’ll give with the reasoning that justifies that the conflict, and the issues. Spending your client the greatest relief. Two outcome. An effective point heading, the time to learn the facts, research exceptions: First, consider the logic of when combined with subheadings that the law, outline your arguments, and your issues. Trace the elements of a break up complex issues, will concisely structure your brief is time well spent. statute or the factors of a test. If a stat- cite the applicable law, describe how So is starting early and setting time ute or the leading case established an the law applies to the facts at issue, aside to write without distractions. order in which you should articulate and arrive at a conclusion. It’ll avoid Use good time-management tech- the factors, follow that order. Second, hypotheticals and abstractions. It’ll be niques. begin with a threshold issue, such as argumentative. Before all else, learn the facts. service of process, jurisdiction, or the Reading the headings in order Gather information from your client, statute of limitations, if you have one. shows your theory of the case with read the relevant documents, and talk Develop a case theory, or theme. It logical reasoning, and the remedy to necessary witnesses. Ask questions. should be an emotional message, com- Continued on Page 58
64 | February 2010 | NYSBA Journal Electronic copy available at: http://ssrn.com/abstract=1560584 Continued from Page 64 deposition, hearing, or trial transcripts. fortable resolving the case in your cli- you seek, clearly and without gaps in You need to present your client’s ver- ent’s favor if they can step into your logic. sion of the facts convincingly. Use the client’s shoes. Humanize clients by Create a table of contents. The table facts section to win the court over. Tell naming them throughout your brief. of contents presents the point headings the judge what really happened. When you organize your argument and subheadings. For most judges it’s Engage the judge by telling a com- section, be prepared to acknowledge the first page, after the questions pre- pelling story. Set the scene by describ- and accurately state the applicable sented, they’ll read. An effective table ing the background. Bring the char- legal standard. Show the court that it of contents signals an approachable acters to life with forceful verbs and can rule in your favor because your document. concrete nouns, not conclusory and client’s case satisfies the standard. At exaggerating adjectives and adverbs. the trial-court level, the standard is Select only your Introduce the conflict and guide the the burden of proof with the correct reader to the remedies that should presumptions. On appeal, the standard strongest, best-supported result. Don’t be conclusory. Show; do review depends on the type of lower- arguments. not opine. Tell a story; don’t quote wit- court or administrative decision, order, ness after witness. judgment, or decree you’re appealing. The table of contents with point Your story needs a logical narra- If several standards apply, mention headings sets out your brief’s road- tive that leads directly to your desired and apply them all. map. It lets you maintain focus and outcome. The narrative need not be Once you’ve identified the stan- keep your goals in sight throughout chronological, although a chronologi- dard, organize to explain why the stan- the drafting process. cal narrative often works best. The dard works to your client’s advantage. events, the characters, and the theory Then tie the standard to the substan- Be Organized must come together in a credible plot. tive sections of the brief by explaining Your reader must understand your Maintain the judge’s focus by starting, how the standard has been satisfied. If brief. An organized brief is easy to read. developing, and ending your narrative the standard is a de novo review on the It’s methodical. It cuts to the chase. If on a high note. law, for example, emphasize that the you prepare before you start writing, Your fact statement must meet two trial court’s adverse legal conclusions the organization flows naturally. tests. First, it should stand alone. Any- don’t bind the appellate or reviewing Start your brief with an introduc- one reading your facts must under- court. Offer citations to show how the tory statement or summary of argu- stand your case without reading any highest court in your jurisdiction has ment. Identify the nature of the case, other document. Assume that the judge applied the standard in similar cases. your claim, your theory of the case, knows nothing about your case. Men- Include the specifics of your case that and the remedy you seek. This state- tion only those facts relevant to your make the standard apply and how the ment should be concise, but it should sought-after relief. Cull the meaningful court should enforce it. serve as an overview of your position from the mundane. You’ll know which Introduce the questions presented and the outcome you intend. Judges facts are worth mentioning in your facts or issue statements by exploring your want to understand the big picture section by whether you’ll argue them deep issue persuasively and in no before they read the details. Persuasive later in your argument section. Second, more than 75 words. The questions writing in this sense is an inverted your facts section should be persuasive you pose foretell what the judge must pyramid. Judges want the conclusion without being argumentative. Save the decide. The judge will filter your brief first so that they know whether they argument for the argument section. through the issues you present. That have the jurisdiction to grant your pro- Beyond those two tests, you must forces you to argue issues, not caselaw. posed remedy. Giving the conclusion write the facts in a way that impresses You’ve already developed your issues first also gives judges context for what the court that how you present the and listed them as point headings in they read later. facts is the only way the facts should be your table of contents. You’ve framed Then state the facts of the case. This viewed. Through perspective and orga- them to allow one possible answer: the is the most important part of the brief; nization, don’t let two sentences go by one you want. Now develop the argu- judges interpret facts to determine without making it obvious, without ments to get that answer. what relief they can and will grant. argument, which side you represent. Outline and organize each issue Judges won’t know the facts other than Make the focus of your facts statement in your argument section using the through the briefs and the admissible support your client’s theme. CRARC method, the Legal Writer’s evidence. It’s up to you and opposing Take the opportunity from the start patent-pending improvement over counsel to present the facts — facts you of your fact section to paint your client the IRAC method. CRARC stands for and your adversary will glean from the favorably. Make the judge empathize Conclusion, Rule, Analysis, Rebuttal affidavits, affirmations, exhibits, and with your client. Judges will feel com- and Refutation, and Conclusion.
58 | February 2010 | NYSBA Journal In the first Conclusion section, state your brief, makes it seem reliable, and opponent’s theory of the case is inval- the issue persuasively. Begin with a helps readers find information when id. Do so in an order that works for strong topic sentence to introduce the they search the record. your client. You don’t need to follow issue. Summarize your argument first Include the language of the legal test your opponent’s order. Just as you and then explain. This initial section when you apply the facts. This engages should order your lead arguments in must capture the judge’s interest by the reader in your case theory. Your your Rule section from your strongest announcing a logical syllogism that goal is to get your readers to arrive at to your weakest, you should order ends with your conclusion. your conclusion on their own. the arguments in your Rebuttal and In the Rule section, present the rules If your rule is well established, your Refutation section from your strongest of law that support your conclusion. statement of the law will be brief and to your weakest, not from your oppo- After each rule, support it with your condensed. Extensive legal analysis nent’s strongest to weakest. best authority. Move from the specific will be necessary only when the law Point out inaccuracies in your oppo- to the general and from the binding to is unclear or when it turns on novel or nent’s description of the facts or inter- the merely persuasive. pretation of those facts. Punch holes Discuss in detail particularly favor- Deal with issues, into your opponent’s case, but exclude able or unfavorable cases, pointing defensive or wordy references to oppos- out the similarities and differences of not your adversaries’ ing briefs — and especially don’t sug- the decision with the facts in your motives and personalities. gest that your opponent or the judge case. Explicitly stating the reasons you below is lying or stupid. Deal with reference a particular authority will uncommon grounds. Don’t give more issues, not your adversaries’ motives emphasize its importance. Otherwise, rules than the court needs to decide the and personalities. Always address be brief with your citations; explain case. You’re not in law school any more. the court and your opponent respect- their relevance only in parentheticals. Mention consistency between the fully, although not obsequiously, even It’s the novice who devotes paragraph policy of the applicable rules and your if they’re unworthy of your respect. after paragraph to discussing cases, as facts. Judges want to know that they’re Judges love civility and professionalism if cases were more important than the deciding justly, not simply deciding because they can reach a decision with- rules for which the cases are cited. logically. Judges want to decide cor- out being distracted by hostility. Save quotations for those times rectly and for the right reasons. In the final Conclusion section, state when paraphrasing will fade the In the Rebuttal and Refutation sec- the relief you seek. You provided the nuance or when you can’t explain the tion, state the other side’s arguments legal issue in the first Conclusion sec- law in your own words more concisely fairly by setting up a straw man without tion. Now press the entire argument or more convincingly than the author- repeating the rules you laid out in your forward by tying the legal issue and ity you’re quoting. Rule section. One goal in persuasion is your arguments to the relief you seek. Block quotations are distracting and to show that you’re right because you Be specific when describing how the often go unread. In those rare cases are right more than that you’re right judge should decide your case. Most when you need block quotations — if because the other side is wrong. But times judges are forbidden to give you you’re asking the court to interpret a the Rebuttal and Refutation section more than you ask for. You can’t be statute or contract or if you need to is your opportunity to weaken the too direct in stating what you want for lay out a multi-part test from a semi- other side. Failing to address unfavor- your client. nal case — introduce them before the able arguments in advance is strategi- The Legal Writer continues in the quoted text. That’ll force your reader cally wrong and sometimes unethical. next issue of the Journal with three to understand their import. Not mentioning unfavorable law or more way to persuade: honesty, brev- For all other references to the law, contrary arguments won’t make them ity, and revision. ■ paraphrase. Each time you explain the go away. The judge might find them, law you have a new opportunity to and your opponent might bring them GERALD LEBOVITS is a judge at the New York City advance your theory. up and use them against you. Don’t Civil Court, Housing Part, in Manhattan and an In the Analysis section, apply the law assume that your reader or opponent is adjunct professor at Columbia Law School and to the facts — facts mentioned in your stupid. Distinguishing the facts of your St. John’s University School of Law. This two-part facts section. This is the CRARC’s most case and explaining why a statute or column is based on an unpublished article by important part. Show the reader how case doesn’t apply will advance your the same title he wrote with Lucero Ramirez the rules apply to your facts. Describe position. Hidalgo for a Continuing Legal Education pro- factual details by creating images with Distinguish the law on which your gram he gave for the Practising Law Institute in which the reader can identify. Be spe- opponent relies. Explain why your November 2009. Judge Lebovits’s e-mail address cific. Also, cite the record when you opponent’s arguments are flawed is [email protected]. refer to the facts. Doing so strengthens or unsubstantiated. Show that your
NYSBA Journal | February 2010 | 59 MARCH/APRIL 2010 VOL. 82 | NO. 3 JournalNEW YORK STATE BAR ASSOCIATION
Also in this Issue The Opportunity to 2009 Trust and Estate Law Judge Manton’s Rise and Fall Be Part of the World ADR for Dental Claims Consumer Protection in 2009 Legal Cases for Gender Equality by Karen DeCrow
Electronic copy available at: http://ssrn.com/abstract=1588153 THE LEGAL WRITER BY GERALD LEBOVITS
Persuasive Writing for Lawyers — Part II
n the second part of this two-part waste the court’s time by forcing it to hide lazy writing. Instead of writing column, the Legal Writer continues scroll through the entire case to find that something is “clear,” explain why Iwith three more ways to persuade: the relevant part. Pinciting makes it it is clear. Explain why your argument honesty, brevity, and revision. easy for the court to confirm that the is valid; don’t just say it is. Besides, law says exactly what you say it says. fact and law are seldom clear or obvi- Be Honest Being reliable when citing the law ous. When you write that something is To be persuaded, judges must believe makes you credible. At the trial level, clear, you raise the bar unnecessarily: in you, not merely in your arguments. attach to your brief a copy of the most You need to prove not only that you’re Messengers count for as much as the relevant cases and statutes, and high- right but that you’re clearly right. message. Judges will believe in you if light the part you reference. Unless you’re dealing with phrases you prove your case without distrac- When there’s adverse law, cite it of art like “clear and convincing evi- tions and overpromising and if you and distinguish it from your case. You dence,” you don’t need to prove that make them feel smart, not stupid. show candor to the court if you bring something is clear; you need to prove State the facts accurately, clearly, it up before your opponent does. You only that it satisfies the standard or and completely. Don’t misrepresent also eliminate the surprise factor and burden of proof. facts, either affirmatively or by omis- the opportunity for opposing counsel sion. Misstatements signal a lack of to diminish your credibility. knowledge of the case or, worse, a Review all your citations when you Messengers count desire to avoid unfavorable aspects of proofread. Make sure that all citations for as much as the your case. Prove your integrity — and are consistent and follow the applica- make it easy for the court to find your ble uniform rules of citation. In federal message. facts — by giving record citations. court, use Bluebook citations. In New Stick to relevant, determinative York State courts, use the Official Style Eliminate sexist language. Sexist lan- facts. Don’t disperse the reader’s Manual, nicknamed the Tanbook. guage is insulting. And sexist language attention by reciting facts, procedure, Most judges hate pompous lan- affects credibility because it makes the people, and dates that don’t advance guage, jargon, and legalese. Turgid judge trip on your style instead of on your theory. writing irritates. Simple, plain English your content. Sexist language repre- Avoid fallacies. A fallacy is invalid is clear. Use Anglo-Saxon English, not sents the male or female as the norm, reasoning that leads to incorrect con- foreign or fancy words, unless you gratuitously identifies the referent’s clusions. Judges will reject untruth- have no monosyllabic English equiva- gender, and demeans and trivializes. fulness and hold it against you and lent. Don’t be boring; engage your Gender-neutral language avoids gen- your client. Judges will be quick to reader. But make sure the court under- der bias, it projects fairness and clarity. spot inconsistencies or flaws in your stands every word without driving it Don’t use “he,” “his,” or “him,” “she” argument. Make sure that each prem- to the dictionary. or “her,” or “he/she.” Don’t alternate ise is correct. Develop your argument Eliminate overstatement. If you between the genders. Instead, make through a logical syllogism. Don’t skip object to opposing counsel’s state- the references plural or delete the ante- premises. Build your argument block ments, tie them to a specific misstate- cedent altogether. (Incorrect example: by block. ment or mistake and move on. Make “A gourmet likes her coffee black.” Use pinpoint, or jump, citations to fair statements, and prefer understat- Incorrect fixes: “A gourmet likes their cases. If the court wants to verify the ing. Judges hate exaggeration. coffee black” or “A gourmet likes his/ context or the rule, it should be able to Avoid intensifiers like “clearly” or her coffee black.” Correct: “Gourmets do so immediately, and it will be able “obviously.” They add extra words, to do so if you use pinpoints. Don’t they irritate skeptical judges, and they CONTINUED ON PAGE 59
64 | March/April 2010 | NYSBA Journal Electronic copy available at: http://ssrn.com/abstract=1588153 THE LEGAL WRITER small idea, and no more. Each para- Examples: “it is black-letter law that,” CONTINUED FROM PAGE 64 graph should contain one large idea, “it is hornbook law that,” “it is well- and no more. settled that,” “it is axiomatic that,” and like their coffee black” or “A gourmet Use transitions to link one para- “I believe that.” likes black coffee.”) graph to the next. Transitional phrases Reject unnecessary repetition. Say Comply with local rules and all like “in addition,” “by contrast” and it once and in one place. This doesn’t applicable rules of procedure. Learn “in the alternative” help make logi- interfere with the Legal Writer’s about the judge who’ll preside over cal relationships between your para- advice about weaving your case theory your case. graphs. They also avoid the weighty throughout your brief. The theory is a conjunctive adverbs like “additional- theme, a message, not repeated words Be Brief ly,” “along the same lines,” “however,” or arguments. You build your theory in Respect the court’s time. Be concise and “moreover.” The best transitions, your presentation of the facts, the law, and succinct without sacrificing clarity. though, repeat in the first sentence and the analysis. That’s how you per- Judges will thank you by maintaining of the paragraph a word or concept suade. You don’t persuade by repeat- interest. from the last sentence of the preceding ing arguments, simply by changing Careful preparation and organiza- paragraph. the wording. tion will help you focus and address Replace coordinating conjunctions Delete all double-identification in your issues. Don’t rush through your with a period and start a new sentence. parentheses. Incorrect example: “The arguments. Say what you must say to The coordinating conjunctions are case arises from a breach of contract strengthen your client’s case. Complex “and,” “but,” “for,” “so,” “nor,” and (the ‘contract’) between Mr. and Mrs. ideas require several sentences or “yet.” Starting new sentences shortens Smith (collectively, the ‘Smiths’) and paragraphs to express, and precision your sentences and makes them more Mr. Brown (‘Brown’).” Incorrect exam- should never be sacrificed for con- concise, even though doing so might ple: “The Plaintiff owes the Defendant cision. Nevertheless, don’t say more add text. ten dollars ($10.00).” It’s unnecessary and boring to say things twice. Write as you speak. The surest way to be succinct is to Forgo footnotes or limit them to when they’re relevant. Information drop loser arguments. worth mentioning is worth mention- ing in the text, not in footnotes. Never use footnotes to avoid exceeding the than you need to say, and make every Don’t start sentences with “In that.” page limit. You want to call atten- word count. (“In that the judge recused herself . . . .” tion to what is important, not to hide The surest way to be succinct is to Becomes: “The judge recused herself information in footnotes or, worse, in drop loser arguments. because her cousin was a litigant.”) endnotes. Often, time factors and client con- Eliminate prepositions like “of”; Stop using string citations except siderations require a quickly written, turn them into possessives instead. if your client’s position would benefit general document, such as boilerplate. (Incorrect: “The contract of Mr. Jones.” from explaining authority or a split in But the virtue of boilerplate is also its Becomes: “Mr. Jones’s contract.”) authority. vice: It’s written quickly, but it consid- Prepositions also lead to nominaliza- Don’t try to cram in as many words ers unlike cases alike, it includes old tions, which are wordy and conclusory, as you can to meet the page limit. law, it’s often riddled with miscita- in which writers prefer nouns to verbs. Fewer but well-thought-out words will tions, and it usually goes unread. (Incorrect: “Ms. Jones committed a vio- improve clarity and thus be more per- Keep your sentences and para- lation of the law.” Becomes: “Ms. Jones suasive. graphs short without being choppy. violated the law.”) If the specifics of your case involve Each sentence and paragraph should Discard redundancies like “advance voluminous or abstract information express one idea. If you choose precise planning” (write “planning”) and “due like financial data, statistics, or medi- words and effective transitions, you’ll and payable” (write “due”). cal records, include visual aids: charts, normally keep your sentences shorter Avoid metadiscourse. Cut wordy tables, pictures, and summaries to than 20 words and your paragraphs running starts and throat clearers like communicate your points. Make the shorter than 250 words. Long sen- “the fact is that” and “the first thing I court’s job easy. Judges love visuals. tences and paragraphs are less effec- will argue is that.” Just say what you Don’t waste the court’s time with tive. They’ll lose the judge’s attention have to say. Especially avoid meta- undisputed fact, law, or issues. Mention and complicate an issue unnecessar- discourse that vouches for your posi- that they’re undisputed and move on. ily. Each sentence should contain one tion and thus raises integrity issues.
NYSBA Journal | March/April 2010 | 59 Review to Improve must include but which you wish to al,” “disapprove,” “except,” “hardly,” Through the writing process, especial- de-emphasize. With this technique, “neglect to,” “neither,” “never,” “nor,” ly between drafts, continuously edit to you can use short sentences and para- “not,” “other than,” “prohibit,” “pro- improve content, organization, citing, graphs for emphasis and long sentenc- vided that,” “scarcely,” “unless,” and sentence and paragraph structure, and es and paragraphs to de-emphasize “void.” word choice. When you’ve written a and bury information. Eliminate generalities and cowardly final draft, you can start proofreading Use punctuation for similar effect. qualifiers like “generally,” “typically,” to spot errors. Don’t rush this pro- To force the judge to dwell on your or “usually,” except if referring to an cess. Your final product will be greatly sentence, use lots of commas and exception to the general rule. In that improved if you devote the time to semicolons. To make the judge rush case, state the rule first, and then the turn an average product into a worthy through your point, eliminate your exception. one. punctuation. Beware vague referents. Each “his,” Re-read your draft, think, and make Rhetorical devices also play a strong “hers,” “they,” “their,” and “its” must changes. Keep your reader in mind role in persuasion. They can push a refer to one group, person, or thing when you review for organization, judge’s buttons to rule for your client. only. Conversely, be aware of inelegant clarity, tone, style, and length. Rely on original metaphors (without variation, in which a writer uses dif- First, review to improve macro-orga- mixed metaphors or clichés); parallel ferent words to mean the same thing. nization. Paragraphs are the building structure to match nouns with nouns Inelegant variation confuses, whereas blocks of thought. Determine whether and verbs with verbs; and antithesis to repetition has power. each paragraph develops one point; contrast opposites concisely. Put subjects next to their predi- whether the discussion of each concept Always consider the active voice cates. If some modifiers are necessary, is grouped all in one place; whether its and the passive voice. The active voice put them next to the word or phrase position within the brief is appropri- describes a sentence where someone they modify. But don’t characterize. ate; whether the first paragraph of each does something to someone or some- Characterizations weaken your mes- section sets the roadmap for the details thing, with a subject-verb-object com- sage. that come next; whether transitions bination, or who does what to whom. Then review to improve your tone between paragraphs connect the con- (Example: “The robber shot the vic- and style. cepts; and whether the last paragraph tim.”) The active is always more con- Omit abbreviations and contractions in each section reaches the conclusion cise and direct than the single passive except in signals and citations. Make set out in the first paragraph. voice. (Example: “The victim was shot your tone formal and professional. Second, review to improve your by the robber.”) The double passive, Improve readability by including small-scale organization. Review by contrast, hides the actor. (Example: stylistic variety. Not every sentence sentences within each paragraph. “The victim was shot.”) Prefer the should be a simple declarative sen- Determine whether the first sentence active voice except when the actor is tence or structured as a dependent is a topic sentence or a transitional unimportant or when you want to clause followed by an independent sentence that connects one paragraph downplay the actor’s conduct. one. Nor should every sentence be the to the next; whether each sentence Except for quiet understatement, same length. Be creative. Once all the expresses one idea only; whether tran- prefer positive words, clauses, and information you need is in the brief sitions between sentences connect them sentences to negative ones. (Example: and everything else is out, concentrate to convey the point; whether sentences “Do this” instead of “Do not do that.”) on the style that makes your document move from short to long, from simple Affirmative sentences are assertive attractive and readable. to complex, and from old to new; and and clear. Negatives are ambiguous Show the court that you care about whether the last sentence answers that and leave room for misconceptions. the details. Proofread to eliminate paragraph’s thesis. (Example: Lender: “You owe me $100.” typographical errors and to correct Then review your narrative. Use Borrower: “I do not owe you $100.” grammar and spelling mistakes. Use stylistic and grammatical devices to The borrower just admitted owing your word-processing program’s persuade. For example, end each sen- some money, although less than $100. grammar-correction function. But also tence with your climax; the end of each The borrower should have said, “I owe review your work word for word on a sentence is the stress point. Begin each you nothing.”) hard copy. sentence with something important, Write even negatives in the posi- Then improve the document’s too, because the beginning of each tive. (Incorrect example: “The nonmo- appearance. Appearance is nearly as sentence is the second greatest stress nied spouse must not be prevented important as content. Design has aes- point. This means you should use the from . . . .” Becomes: “The nonmonied thetic but also pragmatic relevance. middle of each sentence, paragraph, spouse must be allowed to . . . .”) Judges appreciate design that facili- and section to bury information you Avoid these words: “barely,” “deni- tates legibility. Follow the court’s rules
60 | March/April 2010 | NYSBA Journal about font, type size, margins, align- and the page where you mention each Gerald Lebovits & Martha Krisel, ment, and headings. Your firm might one. Create it after you draft and proof- Finding Your Voice as a New also have its own rules. Follow them as read your entire document to avoid Attorney: Thoughts from the well. When the choice is yours, single omitting a statute or case and to avoid Employer and the Court, 58 space while double-spacing between mispagination. Nassau Lawyer 11 (Jan. 2009), paragraphs. Add one space between When you have a good draft, but only available at http://ssrn.com/ sentences, not two. Include page num- after you have a good draft, give it to a abstract=1332115. bers. Try Century font, not Times good editor — a colleague who can play Gerald Lebovits & Lisa Solomon, New Roman. Use right-ragged, not devil’s advocate to find typographical Powerful Writing Techniques to full, justification. Use 12–14 type size, errors, weaknesses in your arguments, Help You Persuade Judges and Win nothing smaller or larger. Most impor- and ways to improve your structure. Clients (American B. Ass’n CLE tant, include plenty of white space to Know when to submit your brief. delivered at Los Angeles, Cal., in enhance readability. Edit late, after you’ve put your brief Oct. 2009), available at http://ssrn. Don’t use bold, italics, quotation aside a few times, but submit your com/abstract=1498914. marks, or underlining to emphasize brief on time. Most good lawyers are Gerald Lebovits, Winning Through or to show sarcasm. These false devic- perfectionists. They take pride in excel- Integrity and Professionalism, es dilute content and irritate readers. ling. Briefs can always be improved. The Advocate (Bronx County Prefer italics to underlining to make But knowing when to stop editing is as B.J.) 4 (Summer 2009), avail- the text cleaner. Prefer English words, important as investing enough time to able at http://ssrn.com/ but use italics for foreign words and edit carefully. abstract=1463718. ■ phrases not commonly used in English when you must use them. Set head- Conclusion GERALD LEBOVITS is a judge at the New York City ings, subheadings, and titles in bold- Persuade by writing with your reader Civil Court, Housing Part, in Manhattan and an face, large, or italicized type in your in mind. The better you get at persuad- adjunct professor at Columbia Law School and argument section to distinguish cap- ing through writing, the higher your St. John’s University School of Law. This two-part tions from text. chances of winning. column is based on an unpublished article by Last, include a table of authorities the same title he wrote with Lucero Ramirez with correct formatting for dot lead- Further Readings: Hidalgo for a Continuing Legal Education pro- ers; don’t use the tab bar to format Gerald Lebovits, Write to Win, 72 gram he gave for the Practising Law Institute dot leaders. Your table of authorities Queens Bar Bull. 11 (Dec. 2008), in November 2009. Judge Lebovits’s e-mail should contain all the authorities cited available at http://ssrn.com/ address is [email protected]. or referred to in your argument section abstract=1320665.
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NYSBA Journal | March/April 2010 | 61 FEBRUARY 2009 VOL. 81 | NO. 2 JournalNEW YORK STATE BAR ASSOCIATION
Also in this Issue It’s No Joking Matter Issuance and Acceptance Our Profession Requires Greater Civility and Respect of Delaware LLC Opinions by Hon. Mark D. Fox and Michael L. Fox City Sidewalk Trees and the Law New Criminal Law and Procedure Legislation Independent Contractors or Employees?
Electronic copy available at: http://ssrn.com/abstract=1345882 THE LEGAL WRITER BY GERALD LEBOVITS
Persuading the Judge Through Writing: How to Win
n advocate’s goal in address- Written advocacy is crucial to per- before writing, weaves law and policy ing a trial or appellate judge suade. A brief consists of numerous into the facts of the argument, stresses Ais to win. To win honestly, parts that give the court the necessary only important issues, addresses the but to win nonetheless. The advo- procedural background, the facts of the most important issues first, revises cate wins by persuading the judge particular case, and the relevant law. repeatedly, and submits the work on that the client’s arguments are more The tone of an advocate’s brief is to time. compelling than the adversary’s cli- convince, but the advocate’s goal is to Here are 15 pointers to guide advo- ent’s arguments. Persuasion in the state the pivotal issues of the case and cates in persuading the judge that their law requires ethos (showing exper- to articulate a position in a straight- clients should prevail. tise and knowledge with integrity), forward, concise, and definite way. A Know the Judge. Advocates must pathos (appealing to emotion and the judge is persuaded when an advocate familiarize themselves with the judge’s judge’s sense of justice), and logos presents an articulate position. judicial philosophy and background (offering logical reasoning and com- To persuade, an advocate must before they submit written argument. mon sense). The advocate seeks to inform. Judges are unfamiliar with the Knowing how the judge has ruled in persuade through written and oral details of their cases until they hear previous cases and how the judge con- advocacy. Persuasion in oral advo- argument. They rely on the advocate ducts the courtroom enables the advo- cacy comes from oral argument in to provide the background. An advo- cate to structure advocacy to appeal which an advocate, during a conver- cate’s brief can shape a judge’s opinion to the judge. One way to do this is to sation with the court, presents the even before oral argument. To shape review the judge’s judicial opinions client’s position by addressing the opinion, the advocate has two objec- before drafting a brief. Some judges judge’s concerns. Persuasion in writ- tives: To make the judge want to rule emphasize policy; others favor prec- ten advocacy comes from a written for the client and to make it easy for the edent. Persuasive advocates are flex- brief or memorandum to the court judge to rule for the client. ible. They know not only the judge’s in which the advocate writes for the The more knowledge an advocate preferences but also present the client’s judge without writing like a judge. has about the case, the easier it is position to reflect those preferences. Successful persuasion in written to persuade. Judges expect the advo- Familiarity with the court rules and advocacy requires the advocate to cate to know the facts and legal prin- adherence to them is required. Many articulate clearly and concisely what ciples of the case better than anyone judges have procedural rules about the client wants. Once the court is able else might. Judges expect advocates page limits, deadlines, font sizes, and to decide the advocate’s request — that to present arguments completely and footnotes. Persuasive advocates never is, that the court has jurisdiction — the honestly. Completely means knowing violate those rules. Persuasive advo- advocate must convince the court that the record as well the adversary’s con- cates always treat their readers like the client’s position is the strongest in tentions. Honestly means presenting busy, skeptical professionals. the current situation and as guiding all information accurately, even if that Articulate Positions. Advocates precedent for the future. An advocate requires the advocate to concede some must be clear and straightforward in accomplishes this by arguing law, fact, points. asking the court for the relief the client and policy under the appropriate bur- Each advocate writes in a unique seeks. They may not be cowardly. They den of proof and standard of review. and personal way. Briefs vary in style, must be direct and upfront. Judges A persuasive advocate has the same tone, and length. Although most advo- seek to resolve cases quickly. Blunt and goals regardless whether the advo- cates follow a similar organizational repetitive language emphasizes the cli- cate speaks or writes, although oral format, no one approach is uniquely ent’s position. Well-articulated intro- and written advocacy techniques and correct. The persuasive advocate brain- ductions, transitions, signposts, and styles vary. storms all possible arguments, outlines Continued on Page 56
64 | February 2009 | NYSBA Journal Electronic copy available at: http://ssrn.com/abstract=1345882 The Legal Writer Continued from Page 64 state with words like “always” and Be Specific. Specificity accom- “never.” Persuasive advocates cau- plishes two purposes in brief writ- conclusions are powerful and effec- tiously, although confidently, under- ing. It shows that the advocate has tive. The introduction and conclusion state all their positions. They avoid researched thoroughly. It also makes should highlight the brief’s primary biased modifiers and don’t offend or the adversary’s position more difficult arguments, explain how existing law misquote adversaries, opposing coun- to prove by creating fewer loopholes in supports those arguments, and state sel, or other courts. Boundaries are one’s own argument. Providing non- what the brief is asking the court to exceeded when an advocate unfairly conclusory examples using concrete do. Articulating positions persuasively attacks and accuses the adversary, the nouns and, better, vigorous verbs is an means writing in plain, simple English, court, or a court below or comments effective way to stay detail-oriented. not in Latin, legalese, or complex con- on their motives. Advocates must also In describing a car accident, the stron- ditionals. portray the record scrupulously and ger argument recalls the color, model, Be Credible. Maintain integrity. All accurately. make, time of day, number of pas- advocates hope the judge will agree Cite Accurately. Persuasive advo- sengers, and intersection at which the with them on every issue. The per- cates use relevant sources carefully accident occurred, as opposed merely suasive advocate knows that this isn’t and then cite what they use and use to stating that “two black cars collided always possible. A successful advo- what they cite. An advocate’s brief can at some point in the afternoon.” cate knows the adversary’s position, cite multiple sources, including cases, Be Original. Persuasive practitio- anticipates the adversary’s arguments, other briefs, law-review articles, and ners find ways to argue their positions states the adversary’s arguments fairly, documents from the record. Regardless memorably, even when they follow a Advocates are not credible if they argue emotionally rather than about emotional facts. and rebuts the adversary’s arguments of the source cited, the advocate must generally adhered-to format for court without being defensive. Having consult the appropriate citation man- writing. For example, the less boiler- a grasp of the other side’s position ual, adhere to proper citation rules, plate, the more memorable. The same allows the advocate to argue particular and give the necessary information. applies to long, boring quotations, points more vehemently than others. The persuasive advocate uses pinpoint which go unread. Writing memorably Advocates are credible if they refute (jump) cites to tell the judge the exact means varying sentence length and the opposing argument in their oppos- page where the citation came from. sentence structure and choosing good ing papers. Advocates are credible if The more information the advocate words — not fancy ones — to convey they can distinguish which arguments gives in citations, the more persuasive positions. It means avoiding metadis- should be conceded — and when — the argument. course — running starts like “the first and which are meritorious. Advocates Be Reasonable. A persuasive advo- thing I will argue is that it is well- are not credible if they overpromise cate is reasonable. This means being settled that . . . .” — and clichés. It but under-deliver. Advocates are not logical and fair in arguing positions means referring to parties by names credible if they overargue, such as by and asking for relief. The professional that bolster positions. It means adding maintaining that the client is inno- doesn’t make requests that are far- visuals and examples that illustrate cent rather than that the prosecution fetched or unsupported by the record concepts. It means leaving lots of white didn’t prove guilt beyond a reasonable or legal authorities. The professional space in the brief to make it easy for doubt. Advocates are not credible if doesn’t make frivolous claims or raise the judge to read. The goal is to write they argue emotionally rather than frivolous defenses. More than violating for the ear but to make the brief pleas- about emotional facts. Advocates are ethical rules or risking sanctions, argu- ing to the eye. not credible if they use false emphatics ing nonmeritorious positions affects Be Short and Sweet. Make your like bold, italics, underlining, capitals, meritorious positions: The judge might argument and move on. Write it once, and quotations for effect and sarcasm assume that the advocate is unrea- all in one place. Brevity will make instead of letting the argument speak sonable and wrong about everything. the brief clearer and more persuasive. for itself. The professional stresses content, not Judges multi-task and consider mul- Know Boundaries. A persuasive adjectives, style, and drama. The pro- tiple cases simultaneously. The brief advocate knows boundaries. An fessional avoids adverbial excesses like should get to the core of the argu- advocate may never exaggerate. The “only” and “certainly.” Few things can ment quickly. Otherwise, the advo- persuasive advocate doesn’t over- be said with certainty. cate’s writing will be lengthy and dis-
56 | February 2009 | NYSBA Journal Advocates are organized. The judge will be forced and edit. A brief written without to piece together the advocate’s argu- not credible if they the advocate’s conducting effective ments. That wastes the court’s time, research, outlining arguments, and and the judge might choose not to overpromise but editing is an unpersuasive and care- read the brief. Also, the clearer and under-deliver. less brief. Persuasive advocates will more concise the brief is, the lower the have uncovered material relevant to risk that the judge will overlook an their case and their adversary’s case. argument. If the advocate’s arguments advocate weaves the facts of the par- Persuasive advocates start early and are laid out explicitly throughout the ticular case into existing, applicable edit late. brief, the judge won’t need to search law. This requires the advocate to be Proofread. The persuasive advocate through numerous pages of discus- an expert on the facts and the record must check for errors after finish- sion to understand the position being and to have a comprehensive view on ing writing. Whether the errors are advanced. favorable and unfavorable precedent. grammatical, stylistic, typographi- Give a Roadmap. The advocate An advocate who has a good under- cal, they make an advocate’s posi- should give the judge a short and sim- standing of the law relevant to the tion less persuasive. A brief with ple introduction at the start to set out case can successfully analogize and errors means that the advocate did the argument and format of the brief. distinguish the client’s position from not review the brief thoroughly and This creates a coherent and readable earlier cases. An advocate’s position carefully. This makes a judge see that text. It also puts the main points of the can be bolstered by comparing and advocate as careless. Advocates care- argument at the forefront. That allows contrasting the case from other cases. less about typos might be careless the judge to know what arguments are An advocate who succeeds in analo- about the record. To eliminate errors, being made before the judge begins gizing and distinguishing the client’s the advocate should edit and revise reading the facts and precedent. It position can weaken the adversary’s several times. The advocate should also makes it more difficult for an position. spend some time away from the brief adversary to misunderstand and mis- Have a Theme. After some pre- between the writing and editing stag- interpret the argument. This abridged liminary research has been done but es and get an editor to review the and straightforward roadmap will before the advocate begins to write, brief for errors. This allows the advo- guide the structure of the brief and the advocate should see the big pic- cate to read and re-work the brief guide the judge through the brief in ture and outline how to convey it. with a fresh thought process and find its entirety. This allows the advocate to develop errors the advocate might otherwise Organize and Limit Issues. Persua- a legal theory that can serve as the overlook. sive advocates argue issues, not giv- brief’s overarching theme. A theme Written advocacy is a powerful ens, history, or facts in the narrative. is a single idea that runs through the tool in persuading the judge. A per- The persuasive advocate then gives entire brief. The theme should be easy suasive advocate takes the time to the best argument first, supports the to understand. The theme guides the draft a brief to ensure that the final best argument by the best law first, way an advocate portrays the facts draft is polished. Persuasion requires and then applies the best facts first. and tells a story. Knowing the theme the skill and effort to move the judge’s Discussing every conceivable argu- enables the advocate to emphasize law heart and mind. The time expended ment is a losing strategy. Advocates and fact that support the theme and to aids not only the client but, in our should identify the strongest and de-emphasize law and fact irrelevant adversary system, the administration most important issues affecting their to the theme. The persuasive advo- of justice as well. Judges are only as position and argue only those. These cate will make sure that every argu- good as the advocates who appear will be the issues that have the great- ment supports that theme or rebuts the before them. ■ est possibility of success. The judge adversary’s theme. neither wishes nor has time to hear Don’t Rush. No need to speed every conceivable argument. Worse, a through brief writing. Persuasive writ- GERALD LEBOVITS is a judge of the New York City judge who hears some frivolous argu- ing takes time. It requires the advocate Civil Court, Housing Part, in Manhattan and an ments might lose focus and believe to schedule. A persuasive brief will adjunct professor at St. John’s University School that all the arguments are frivolous. have been thought out in advance — of Law. This column is adapted from a piece he A persuasive practitioner will distin- but not too well thought out, because wrote for the Advocate, the Bronx County Bar guish between strong arguments and that will delay the writing process Journal. For her research, he thanks Brooklyn weak arguments and present only the — and written in multiple stages. Law School student Brieana Winn. Judge winning ones. The successful advocate will allocate Lebovits’s e-mail address is [email protected]. Analogize. Use fact and law to enough time to research applicable articulate positions. A persuasive law, outline the argument, write,
NYSBA Journal | February 2009 | 57 JULY/AUGUST 2007 VOL. 79 | NO. 6 JournalNEW YORK STATE BAR ASSOCIATION
No Greater Rights
The Limits of Pro Se Litigation in Also in this Issue New York Courts The Animal Welfare Act – What’s That? by Richard L. Weber Religious Motif in Law and Nation Building Motorist Insurance Law Update – Part II Preparing for Your First Oral Argument
Electronic copy available at: http://ssrn.com/abstract=1294836 THE LEGAL WRITER BY GERALD LEBOVITS
GERALD LEBOVITS is a judge of the New York City Civil Court, Housing Part, in Manhattan. He thanks court attorney Alexandra Standish for assisting in researching this column. His e-mail address is [email protected].
Do’s, Don’ts, and Maybes: Legal Writing Don’ts — Part I
n the last two columns, the Legal cite fact and law accurately, using the “It was Judge Beta who wrote the Writer discussed 26 things you record for facts and original sources for opinion.” Here, the author emphasizes Ishould do in legal writing. We con- law. But don’t obsess. Obsessing over Judge Beta’s authorship even though tinue with a baker’s dozen of things accuracy leads to including irrelevant it would have been more concise to you shouldn’t do: 13 things writers details. Obsessing will make you over- write “Judge Beta wrote the opinion.” should hate. ly cautious, force you to over-explain, Rhythm example: “To everything there is 1. Hate Boilerplate. Boilerplate is cause you to submit a document late, a season.”1 This example would have laziness. It’s boring and intimidating and lead you to hate being a lawyer. been different had the author written at the same time. Readers know when Exaggerating is a form of misrepre- “To everything is a season.” Climax you do a cut-and-paste job. They won’t senting. Understate not only to show example: “There is a prejudice against read boilerplate. Don’t recycle your integrity but also because understating sentences that begin with expletives” legal arguments. If you or the person persuades. Understating calls atten- is better than “A prejudice against from whom you’ve copied your boil- tion to content, not the writing or the sentences that begin with expletives erplate made errors in the original writer. Also, concede what you must to exists.” The climax should not be on document, you’ll repeat them in your make you honest and reasonable. “exists.” boilerplate. Each client and case is 4. Hate Expletives. “Expletive” 5. Hate Mixed Metaphors, Puns, unique. Boilerplate won’t be specific means “filled out” in Latin. Avoid Rhetorical Questions, and False to your case. Boilerplate is fine for con- expletives: “there are,” “there is,” Ethical Appeals. Metaphors com- tracts or forms. It’s unacceptable in a “there were,” “there was,” “there to pare two or more seemingly unre- legal argument. be,” “it is,” and “it was.” Examples: lated subjects. Metaphors make the 2. Hate Clichés. Avoid clichés like “There are three issues in this case.” first subject equal to the second: “All the plague. Clichés make writers look Becomes: “This case has three issues.” the world’s a stage/ And all the men as if they lack independent thought. They’re banal. Eliminate the following: “all things considered,” “at first blush,” Readers know when you do a cut-and-paste “clean slate,” “exercise in futility,” “fall job. Don’t recycle your legal arguments. on deaf ears,” “foregone conclusion,” “it goes without saying,” “last-ditch “There is no fact that is more damag- and women merely players.”2 In this effort,” “leave no stone unturned,” ing.” Becomes: “No fact is more dam- example, Shakespeare compared the “lock, stock, and barrel,” “making a aging.” “The court found there to be world to a stage, and men and women mountain out of a molehill,” “nip in prosecutorial misconduct.” Becomes: to actors. Mixed metaphors combine the bud,” “none the wiser,” “pros and “The court found prosecutorial mis- two commonly used metaphors to cre- cons,” “search far and wide,” “step up conduct.” Also eliminate double exple- ate a nonsensical image: “He tried to to the plate,” “tip of the iceberg,” “wait tives: “It is obvious that it will be nip it in the bud but made a mountain and see,” “wheels of justice,” “when my downfall.” Becomes: “My mistake out of a molehill.” Puns fail because the going gets tough,” and “writing on will be my downfall.” Exceptions: Use they transform formal legal writing to a clean slate.” expletives for emphasis; for rhythm; to informal writing. Puns are for children, 3. Hate Misrepresentations and climax (end with emphasis); or to go not groan readers. A pun is a figure of Exaggerations. Be honest. Mistakes are from short to long or from old to new. speech that uses homonyms as syn- excused. Purposeful misstatements and Emphasis examples: “It was a full metal onyms for rhetorical effect. Examples: negligent misquoting aren’t. Honesty jacket bullet that killed John.” Here, “Whom did the mortician invite to his is the best policy. It’s also the only the author emphasizes the object that policy. To prevent misrepresentations, killed John, not that John was killed. CONTINUED ON PAGE 50
64 | July/August 2007 | NYSBA Journal Electronic copy available at: http://ssrn.com/abstract=1294836 THE LEGAL WRITER CONTINUED FROM PAGE 64 sequent to.” Legalese makes for bad nouns like “myself,” “yourself,” lawyering: I am, inter alia, an attorney, “yourselves,” “ourselves,” “herself,” party? Anyone he could dig up!”3 hereinafter a per se bad attorney, for “himself,” “themselves,” and “itself.” “Families are like fudge. Mostly sweet utilizing said aforementioned legalese. Consider this dialogue between A and with a few nuts.”4 “Madness takes 7. Hate Pomposity. Be formal but B. Incorrect: A: “How are you? B: “Fine. its toll; please have exact change.”5 not over the top. Stay away from IQ And yourself?” Correct: A: “How are “Some people are wise, and some, or SAT words. No one will be im- you?” B: “Fine. And you?” Why would otherwise.”6 Are rhetorical questions pressed. You’ll look bovine, fatuous, anyone say “How are yourself?” effective? What do you think? Readers and stolid, not erudite, perspicacious, 8. Hate Abbreviations, Contractions, want answers, not questions. Some and sagacious. The fewer syllables in a and Excessive or Undefined Acronyms. writers use rhetorical questions to word, the better. Prefer simple and short Don’t use these abbreviations: “i.e.,” make readers think or to involve them. words to complex and long words: “e.g.,” “re,” “etc.,” and “N.B.” Be for- Do you agree? Rhetorical questions “Adjudicate” becomes “decide.” “Aggre- mal: use “facsimile,” not “fax.” Leave fail because you don’t know how the gate” becomes “total.” “Ameliorate” contractions, which are friendly and reader will answer the question or how becomes “improve” or “get better.” “As sincere, for informal writing, e-mails, involved the reader wants to be. False to” becomes “about” or “according to.” and Legal Writer columns. Eliminate ethical appeals are attempts to con- “At no time” becomes “never.” “Attain” “aren’t, “couldn’t,” “don’t,” “haven’t,” vince a reader that you’re credible, eth- becomes “reach.” “Commence” becomes “it’s,” “isn’t,” “shouldn’t,” “wouldn’t,” ical, honest, or meticulous because you “begin” or “start.” “Complete” becomes and “you’re.” An acronym is an
Legalese makes for bad lawyering. say so. Instead of telling the reader that “end” or “finish.” “Component” becomes abbreviation formed from the first you exhaustively researched the law, “part.” “Conceal” becomes “hide.” letter of each word of a title. Define discuss your research exhaustively. Let “Demonstrate” becomes “show.” terms and nouns you’ll frequently your writing speak for itself. Some “Donate” becomes “give.” “Effectuate” use in your legal document: Depart- false, unnecessary appeals: “It is well becomes “bring about.” “Elucidate” ment of Housing Preservation and settled that”; “it is hornbook law that”; becomes “explain.” “Implement” becomes Development (DHPD); New York “this author has carefully considered “carry out” or “do.” “In case” or “in the Stock Exchange (NYSE). Don’t use the facts and concludes that . . . .” event that” becomes “if.” “Incumbent quotation marks or “hereinafter 6. Hate Legalese. Use simple and upon” becomes “must” or “should.” “Is referred to as” to set out the acronym: common words that readers under- able to” becomes “can.” “Necessitate” Judge Me Not Corporation (“JMNC”) stand. Legalese is the antithesis of becomes “require.” “Per annum” becomes becomes Judge Me Not Corporation plain English. All legalisms can be “a year.” “Possess” becomes “own” or (JMNC). Common legal acronyms eliminated. The only loss will be the “have.” “Proceed” becomes “go.” “Pro- need not be defined: CPLR, not Civil legalese, and the gain will be fewer cure” becomes “get.” “Relate” becomes Practice Law & Rules (CPLR). If you words and greater understanding. “tell.” “Retain” becomes “keep.” “Suffi- use acronyms, use articles that modify Incorrect: “Enclosed herewith is my cient” becomes “enough.” “Terminate” the acronym, not the word. Example: brief.” Correct: “Enclosed is my brief.” becomes “end,” “fire,” or “finish.” “Uti- “An NYPD officer,” not “A NYPD Incorrect: “The defendant has a prior lize” becomes “use.” officer.” A person’s name or title need conviction.” Correct: “The defendant Pomposity arises when writers go not be defined. Incorrect: “John Smith has a conviction.” Eliminate these out of their way to sound intelligent (Smith)” or “John Smith, the architect words: “aforementioned,” “aforesaid,” but then err. For example, you’ll sound (the Architect).” “foregoing,” “forthwith,” “hereinaf- foolish if you try to use “whom” and 9. Hate Mystery and History. Legal ter,” “henceforth,” “herein,” “herein- then use it incorrectly. Incorrect: “Jane is documents aren’t mystery novels. above,” “hereinbefore,” “per” (and “as the person who defendant shot.” Better: Don’t wait to surprise your readers per”), “said,” “same,” “such,” “there- “Jane is the person whom defendant until the end. Don’t bury essential in,” “thereby,” “thenceforth,” “there- shot.” Best: “Jane is the person defen- issues in the middle, either, or give after,” “to wit,” “whatsoever,” “where- dant shot.” Incorrect: “Whom shall I say your readers clues along the way, hop- as,” “wherein,” and “whereby.” Legal is calling?” The answer is, “He [or she] ing they’ll catch them on time. Few will writing is planned, formal speech. If is calling.” Better: “Who shall I say is try to decipher what you have to say. you wouldn’t say it, don’t write it. calling?” Best: “Who’s calling?” Also, don’t inundate your readers with Write “earlier” or “before,” not “prior You’ll also sound pompous if you the history of the case law or statute. to.” Write “after” or “later,” not “sub- misuse reflexive and intensive pro- Readers don’t want a history lesson.
50 | July/August 2007 | NYSBA Journal Stay away from IQ or SAT words. becomes “perform.” “Preference” ior, possibly sanctionable, distracts becomes “prefer.” “Reference” becomes readers and leaves them wondering They want current law and how it “refer.” “Registration” becomes “reg- whether your substantive arguments applies. ister.” “Reliance” becomes “rely.” are weak. Wounding your adversary, 10. Hate Inconsistency. Be consis- “Review” becomes “reviewed.” “Ruling” your adversary’s client, or the judge is tent in tone: Don’t be formal in one becomes “rule.” “Settlement” becomes ineffective. Instead, be courteous and place and informal in another. Be con- “settle.” “Similarity” becomes “simi- professional. Never be petty. But if you sistent in point of view: Don’t use your lar.” “Statement” becomes “state.” must attack, aim to kill, metaphorically point of view in one place and the “Technicality” becomes “technical.” speaking. reader’s in another. Example: “Writers 12. Hate Negatives. Watch out for In the next column, the Legal Writer must not shift your point of view.” negative words: “barely,” “except,” will continue with the next baker’s Be consistent in reference: Don’t write “hardly,” “neither,” “not,” “never,” dozen of don’ts. Following that col- “my client” in one place, “this writer” “nor,” “provided that,” and “unless.” umn will be three columns on gram- in another, and “plaintiff” in a third. Be Example: “Good lawyers don’t write mar errors, punctuation issues, and consistent in voice: Don’t write “you” in the negative.” Becomes: “Good law- legal-writing controversies. Together in one place and “I” in another. Be yers write in the positive.” Eliminate with the two preceding columns on consistent in style. Examples: If you use negative combinations: “never unless,” legal writing’s do’s, this series repre- serial commas in one place, use them “none unless,” “not ever,” and “rarely sents legal writing’s do’s, don’ts, and everywhere. If you write “3d Dep’t” ever.” Don’t use “but,” “hardly,” or maybes. ■ in one citation, don’t write “3rd Dept.” “scarcely” with “not.” Use “but” instead in another. of “but however,” “but nevertheless,” 1. Ecclesiastes 3:1. 11. Hate Nominalizations. A nom- “but that,” “but yet,” and “not but.” 2. William Shakespeare, As You Like It, act 2, scene 7, available at http://www.shakespeare-literature. inalization is a verb turned into a Eliminate negative prefixes and suffixes: com/As_You_Like_It/10.html (last visited Feb. 22, noun. Nominalizations are wordy. “dis-,” “ex-,” “il-,” “im-,” “ir-,” “-less,” 2007). They hide. They’re abstract. Example: “mis-,” “non-,” “-out,” and “un-.” Use 3. My Favourite Punsters: Stan Kegel, available at http://workinghumor.com/puns/stan_kegel. “The defendant committed a viola- negatives only for negative emphasis: A: shtml (last visited Feb. 22, 2007). tion of the law.” Becomes: “The defen- “How are you?” B: “Not bad.” 4. Pun ny Oneliners, available at http://working dant violated the law.” Don’t bury 13. Hate Attacks or Rudeness. humor.com/puns/oneliners.shtml (last visited Feb. your verbs. Most buried verbs end Condescending language, personal 22, 2007) (attributed to Theresa Corrigan). with these suffixes: “-tion,” “-sion,” attacks, and sarcasm have no place in 5. Id. (attributed to Goeff Tibballs). “-ment,” “-ence,” “-ance,” and “- legal writing. Attacking others won’t 6. Id. (attributed to Phylbert). ity.” Use strong verbs: “Allegation” advance your reasoning. This behav- becomes “allege.” “Approval” becomes “approve.” “Assistance” becomes “assist.” “Complaint” becomes “com- plain.” “Conclusion” becomes “con- clude.” “Conformity” becomes “con- form.” “Consideration” becomes “con- sider.” “Decision” becomes “decide.” “Description” becomes “describe.” “Dissatisfaction” becomes “dissat- isfied.” “Documentation” becomes “documents.” “Enforcement” becomes “enforce.” “Evaluation” becomes “eval- uate.” “Examination” becomes “exam- ine.” “Finding” becomes “found.” “Holding” becomes “held” or “holds.” “Identification” becomes “identify.” “Indemnification” becomes “indem- nify.” “Knowledge” becomes “know.” “Litigation” becomes “litigate.” “Motion” becomes “moved.” “Notation” becomes “noted.” “Obligation” becomes “obligate” or “oblige.” “Opposition” becomes “oppose.” “Performance”
NYSBA Journal | July/August 2007 | 51 SEPTEMBER 2007 VOL. 79 | NO. 7 JournalNEW YORK STATE BAR ASSOCIATION
BBentleyentley KKassalassal – BBehindehind tthehe LLensens
Judge, Attorney, Children’s Advocate Also in this Issue The Lesson of Yukos Oil by Skip Card Resolving “Liens” in Personal Injury Settlements New York’s Judicial Selection Process Successor Liability
Electronic copy available at: http://ssrn.com/abstract=1294841 THE LEGAL WRITER BY GERALD LEBOVITS
Do’s, Don’ts, and Maybes: Legal Writing Don’ts — Part II
n the last column, the Legal creating possessives or by inverting the grounds of” becomes “because.” Writer discussed the 13 things you or rearranging the sentence. Possessive “Regardless of whether or not” becomes Ishouldn’t do in legal writing. We example: “The foregoing constitutes “regardless whether.” “With the excep- continue with 13 more don’ts — the the decision and order of the court.” tion of” becomes “except.” Also, elimi- things writers should hate. Becomes: “This opinion is the court’s nate “type of,” “kind of,” “matter of,” 14. Hate Incorrect Tenses. Mis- decision and order.” Rearranging and “state of,” “factor of,” “system of,” matched tenses confuse readers. State inverting examples: “I am a fan of the “sort of,” and “nature of.” current rules in the present tense, past Doors.” Becomes: “I am a Doors fan.” 17. Hate Redundancies. Redun- rules in the past tense, and past facts “Because of Judge Doe’s status as a dancy is the unnecessary repetition in the past tense. Past fact but current judge . . . .” Becomes: “Because Judge of words or ideas. “Advance plan- rule: “The court held in Alpha v. Zeta Doe is a judge . . . .” “He’s a justice of ning” becomes “planning.” “Adequate that statutory rape is illegal even if the the Supreme Court of the State of New enough” becomes “adequate.” “Any victim consents.” Past fact and past York.” Becomes: “He’s a New York State and all” becomes “any.” “As of this rule: “Until the court reversed Zeta v. Supreme Court justice.” “You’re not date” becomes “today.” “At about” Alpha, the rule was that . . . .” Past fact: the boss of me.” Becomes: “You’re not becomes “about.” “At the present time” “The defendant ran the red light.” (Not my boss.” becomes “now.” “At the time when” “runs.”) Past but still-valid rule: “This court has held that . . . .” Past fact, permanent truth in dependent clause: Get to the point without a running start that “Albert Einstein proved that E equals mc².” occupies space but adds nothing. 15. Hate Metadiscourse. Metadis- course is discourse about discourse. It’s throat clearing. Get to the point If the possessive looks awkward, becomes “when.” “By the time” becomes without a running start that occupies keep the “of.” “Subdivision B’s rem- “when.” “Complete stop” becomes space but adds nothing. Delete the edies.” Becomes “The remedies of “stop.” “During the time that” becomes following: “After due consideration,” Subdivision B.” “The Fire Department “during.” “Each and every” becomes “as a matter of fact,” “bear in mind of the City of New York’s (FDNY) poli- “each” or “every,” but not both. “Few that,” “for all intents and purposes,” cies.” Becomes: “The policies of the Fire in number” becomes “few.” “For the rea- “it appears to be the case that,” “it can Department of the City of New York son that” becomes “because.” “If that is be said with certainty that,” “it goes (FDNY).” the case” becomes “if so.” “In the event without saying that,” “it is clear that,” Delete “as of.” “The attorney that” becomes “if.” “Necessary essen- “it is important (or helpful or interest- has not filed the motions as of yet.” tials” becomes “essentials.” “Necessary ing) to remember (or note) that,” “it Becomes: “The attorney has not filed requirements” becomes “requirements.” is significant that,” “it is submitted the motions yet.” Don’t use “of” prepo- “On the condition that” becomes “if.” that,” “it should be emphasized that,” sitional phrases: “Along the line of” “Several in number” becomes “sever- “it should not be forgotten that,” “the becomes “like.” “As a result of” becomes al.” “Sworn affidavit” becomes “affi- fact of the matter is,” and “the point “because.” “Concerning the matter of” davit.” “True facts” becomes “facts.” I am trying to make is that.” Example: becomes “about.” “During the course “Until such time as” becomes “until.” “Please be advised that your hair is on of” becomes “during.” “In advance of” “Whether or not becomes “whether.” fire.” Becomes: “Your hair is on fire.” becomes “before.” “In case of” becomes 18. Hate Jargon, Slang, 16. Hate “Of.” Readers who see “of” “if.” “In lieu of” becomes “instead of.” Colloquialisms, Trendy Locutions, know you’re wordy. Eliminate “of” by “In the event of” becomes “if.” “On CONTINUED ON PAGE 58
64 | September 2007 | NYSBA Journal Electronic copy available at: http://ssrn.com/abstract=1294841 THE LEGAL WRITER CONTINUED FROM PAGE 64 “call girl,” “escort,” “working girl,” “truly,” “undeniably,” “undoubtedly,” and “sex workers” are all euphemisms “utterly,” “various,” and “virtually.” and Euphemisms. Jargon is terminol- for “prostitute.” Replacing one euphe- The exception is if you’re confessing ogy that relates to a specific profession mism for another won’t eliminate neg- an error: “I’m clearly wrong” is clearly or group. Don’t use words or phrases ativity or discomfort. Replacing one O.K. only you or another lawyer might euphemism for another perpetuates 21. Hate Cowardly Qualifiers. know. Examples: “In the instant case” negativity and discomfort. Leave no room to equivocate. Be brave or “in the case at bar” becomes “here” or If you’re quoting from a witness’s and decisive. It’s better to be wrong “in this case.” Or, better, discuss your testimony and the slang, colloquialism, than cowardly. Eliminate doubtful, case without resorting to “here” or “in or euphemism is material to your case, hedged, timid, and weaselly equivoca- this case.” then quote it. tions, phrases, and words: “apparent- Eliminate slang from formal legal 19. Hate Typos. Typos tell readers ly,” “at least as far as I’m concerned,” writing. Slang is made up of informal you don’t care. No one will take your “basically,” “conceivably,” “evidently,” words or expressions not standard in writing seriously if you make obvious “if practicable,” “practically,” “per- the speaker’s dialect or language and errors in grammar, punctuation, spell- haps,” “probably,” “purportedly,” “in which are used for humorous effect. ing, or syntax. Typos distract readers effect,” “it may well be,” “it might be Use “absent minded” instead of “out from the substance of your writing said,” “it is respectfully suggested,” to lunch,” “drag” or “take” instead and make you appear unprofessional. “it seems,” “more or less,” “nearly,” of “schlep,” “jewelry” or “money” No typo is subtle. Readers give typos “rather,” “seemingly,” “somewhat,” instead of “bling,” “marijuana” instead greater weight than they deserve. “sort of,” “virtually,” and “would con- of “weed,” “police” instead of “Five- Readers who see small typos assume tend.” Don’t cowardly combine let- O,” “stolen goods” instead of “loot” that the writer didn’t get the big things ters and numbers. Incorrect: “two (2).” or “stash,” and “respect” instead of right. The solution is to proofread. Use Legal writing isn’t a check that can “props.” someone you trust to proofread. Use be forged. Also, eliminate cowardly Don’t use colloquialisms. your word-processing program’s spell expressions. Not only are “at or near,” Colloquialisms are expressions that and grammar checkers. Edit on a hard “on or about,” and “on or before” aren’t used in formal speech or writing. copy. Read your hard copy backward. equivocal, these expressions, which Examples: “gonna” and “ain’t nothin.” Read it out loud if the document is signal approximations, may not pre- cede exact places or times. Use “at or near,” “on or about,” or “on or before” only when you’re writing a complaint Readers who see small typos and you don’t know exact places or assume that the writer didn’t get the big times. Use “generally,” “typically,” and “usually” if you need to discuss an things right. exception to a rule, rather than the rule. Example: “Generally, a municipal- ity is not liable for its failure to provide Do away with trendy phrases. They’re important. Go from big edits to small police protection. An exception arises here today, gone tomorrow. Examples: ones: Verify that your arguments make when a municipality and an injured “bottom line,” “cutting edge,” “inter- sense, that each sentence segues into party have a special relationship. A face,” “maxxed out,” “need-to-know the next, that your style is consistent, special relationship arose here.” basis,” and “user-friendly.” Eliminate and that each sentence is grammatical- 22. Hate Foreign, Latin, and Archaic the trendy “-ize” suffixes: “concretize,” ly correct and free of spelling errors. (Old English) Words. Lawyers love “finalize,” “maximize,” “optimize,” 20. Hate Adverbial Excesses. romance languages: French, Italian, “prioritize,” and “strategize.” Adverbial excesses weaken and and Spanish. Don’t use foreign words. A euphemism is a word or phrase obscure. They suggest that those who They won’t help you sound more edu- that replaces a negative, offensive, or disagree with you are stupid. They cated or sophisticated. And don’t mix uncomfortable word or phrase. Some also make a good, skeptical reader foreign languages with English unless euphemisms for dying: “passed away,” question whether you’re right. Is it you’re quoting or repeating dialect. Use “passed on,” “checked out,” “kicked really obvious? Eliminate “absolute- Latin, a dead language, only when the the bucket,” “bit the dust,” “bought ly,” “actually,” “almost,” “apparent- word or expression is deeply ingrained the farm,” “cashed in their chips,” ly,” “basically,” “certainly,” “clearly,” in legal usage (“mens rea,” “supra”) and “croaked.” “Sanitation engineer” “completely,” “extremely,” “incontest- and when no concise English word and “sanitation worker” are euphe- ably,” “nearly,” “obviously,” “plainly,” or phrase can substitute. Use “agen- misms for “garbage man.” “Hooker,” “quite,” “really,” “seemingly,” “surely,” das” not “agendums”; “appendixes”
58 | September 2007 | NYSBA Journal It’s better to be not “appendices”; “curriculums” not 24. Hate Elegant Variation. Elegant “curricula”; “dogmas” not “dogmata”; variation is the technique by which wrong than “formulas” not “formulae”; “forums” a writer uses different terms to iden- not “fora”; “indexes” not “indices”; tify one idea, person, place, or thing. cowardly. “memorandums” not “memoranda” Use different words to mean different or “memorandas”; and “syllabuses” things. Don’t use synonyms to say the not “syllabi.” Replace Latin terms with same thing. It’s wrong to reach for a you moved in did the pipes burst.” The their well-known English equivalents. thesaurus in this way. Incorrect: “The fallacy is that if the tenant had never “Ab initio” becomes “from the start.” prosecutor wanted to indict the defen- moved in, the pipes would be intact. “Arguendo” becomes “assuming” or dant. That’s why the Assistant District Dicto simpliciter: Applying the general “for the sake of argument.” “Ergo” Attorney [the prosecutor] secured a rule to the exception. Example: “Judge X becomes “therefore.” “Ex contractu” grand jury true bill [indictment] never learned grammar, but she writes becomes “in contract” or “contractu- against the suspect who was arraigned well.” The fallacy is that because Judge al.” “Inter alia” becomes “among oth- [the defendant].” To be understood, be X never studied grammar, no one need ers.” “In toto” becomes “on the whole.” repetitious. study grammar. Hasty generalizations: “Ipso facto” becomes “by itself” or Repeating articles, nouns, preposi- Jumping to conclusions without ade- “necessarily.” “Pro se” becomes “self- tions, and verbs adds power and helps quate sampling. Example: “Lawyer Z represented” or “unrepresented.” comprehension. Repetition makes never edits his briefs. All lawyers from “Sui generis” becomes “one of a kind” writing powerful and clear. Repetition Lawyer Z’s firm are lazy.” The fallacy or “unique.” “Via” becomes “by” or cures inelegant variation. Examples: is that Lawyer Z, who doesn’t edit, is “because of.” Eliminate archaic words “In Selma, as elsewhere, we seek and lazy or that because Lawyer Z is lazy, like “behooves,” “betwixt,” “eschew,” pray for peace. We seek order. We all attorneys from the firm must be and “hither.” Example: “It behooves seek unity.”1 (Repetition of “seek.”) lazy. Circular reasoning: An argument you to eschew archaic words.” “But this time, the world was not that begs the question of the truth of 23. Hate Vague Referents. Readers silent. This time, we do respond. This its conclusion by assuming its truth. hate writing that’s unclear about what time, we intervene.”2 (Repetition of Example: “A good brief begins with a or to whom writers are referring. Be the words “this time.”) In lengthy lists strong opening because a strong open- careful with “it,” “that,” “this,” “such,” or for poetic value, repeat “because,” ing makes a brief good.” The fallacy is “which,” “he,” “his,” “him,” “she,” “that,” and similar words. Then make that a good brief is a good brief because “her,” “they,” and “them.” Writers use your lists parallel. Examples: “The court a strong opening is a strong opening. these referents for concision. But it’s found that the attorney lied and that his Resuming in the November/ better to be clear than concise. Use behavior is sanctionable.” “Lawyers December Journal, the Legal Writer these referents if they refer to one thing advocate because they have something will address the do’s, don’ts, and only. Otherwise, use as many words to say and because they’re paid to advo- maybes relating to grammar errors, as you need to make your writing cate.” punctuation issues, and legal-writing clear. Example: “They won’t under- 25. Hate Personal Opinion or controversies. ■ stand you as such.” Here, the writer Emotion. Don’t interject personal opin- doesn’t clarify who won’t understand ion or emotion. Eliminate “I (or we) 1. Excerpt from President Lyndon B. Johnson’s “We Shall Overcome” speech on Mar. 15, 1965, you. Also unclear is what “as such” think,” “I (or we) feel,” and “I (or we) available at http://www.americanrhetoric.com/ refers to. Example: “He told Judge John believe.” Don’t vouch for your client. speeches/lbjweshallovercome.htm (last visited Feb. Doe that he should do some research.” 26. Hate Logical Fallacies. A fal- 22, 2007). In this example, it’s unclear to whom lacy is an invalid way of reasoning. 2. Excerpt from Elie Wiesel’s “The Perils of Indifference” speech on Apr. 12, 1999, available the second “he” refers: Judge John Doe Excessive reliance on logic is prob- at http://www.americanrhetoric.com/speeches/ or the person who spoke to Judge Doe. lematic. Accepting a fallacy is worse: ewieselperilsofindifference.html (last visited Feb. Example: “Plaintiff failed to deliver the Fallacies lead to incorrect conclusions. 22, 2007). widgets after defendant failed to pay Here are some logical pitfalls.3 Post 3. For an excellent discussion of logical fallacies, see Gertrude Block, Effective Legal Writing 254–56 for them. That started the lawsuit.” hoc fallacy: Assuming that because one (5th ed. 1999). It’s unclear what started the lawsuit thing happens after something else,
— plaintiff’s failure to deliver or defen- the first caused the second. Examples: GERALD LEBOVITS is a judge of the New York City dant’s failure to pay. Or both. Clarify “Every time I brag about how well I Civil Court, Housing Part, in Manhattan and an vague referents by using different write, I submit something with lots of adjunct professor at St. John’s University School nouns; by repeating the same nouns; typos.” The fallacy is that if you don’t of Law. He thanks court attorney Alexandra by making one antecedent singular brag about your writing, you’ll submit Standish for assisting in researching this column. and another plural; or by rewriting the a typo-free document. “I never had any His e-mail address is [email protected]. sentence to sharpen the antecedent. problems with the pipes. Only after
NYSBA Journal | September 2007 | 59 MAY 2007 VOL. 79 | NO. 4 JournalNEW YORK STATE BAR ASSOCIATION
Harness Racing and New York’s Ethics Laws
How politicians’ interest in the harness Also in this Issue tracks gave New York its ethics laws. A Brief Introduction to Florida Tort Law for by Bennett Liebman New York Attorneys Economic Globalization and Its Impact Upon the Legal Profession The Wave of the Future or Blatant Copyright Infringement?
Electronic copy available at: http://ssrn.com/abstract=1294833 THE LEGAL WRITER BY GERALD LEBOVITS
GERALD LEBOVITS is a judge of the New York City Civil Court, Housing Part, in Manhattan. He thanks court attorney Alexandra Standish for assisting in researching this column. His e-mail address is [email protected].
Do’s, Don’ts, and Maybes: Legal Writing Do’s — Part I
o create a legal document, you bold, italicize, underline, capitalize, or laws, a jurisdiction in which all that must know your audience, the use exclamation points or quotation counts is justice and morality. Tell the Tpurpose of your document, how marks to emphasize or show sarcasm. reader you’re right, not because some to organize, and when to stop research- Avoid excessive capitalization. Once law says this or that, but because if ing and start writing. You must fol- you’ve found the right tone, keep it you lose the bad will prosper and the low deadlines. You must comply with consistent. If the audience is a court good will suffer. Think about your court and ethics rules. You must edit and you’re writing a brief, your tone adversary’s theme. Once you find a your work and have pride in it. That’s should be confident, formal, persua- theme, weave it from the beginning to the writing process. sive, and understated, not angry, collo- the end of your writing. Include every Once you’ve perfected the process quial, harsh, or pushy. If your audience important and helpful authority, fact, you can focus on the final product. The is your boss and you’re writing an and issue that supports your theme or way to create a good final product is office memorandum, your tone in dis- contradicts your adversary’s theme. to know legal writing’s do’s, don’ts, cussing fact and explaining law should Exclude all else. and maybes. This column and the next be objective, not argumentative. Write 4. Love Good Facts. Organization, offer the Legal Writer’s top 26 do’s about emotional issues, but don’t write perspective, and theme are essential to — a double baker’s dozen. Following emotionally. writing facts. How you present facts these two columns will be two col- 2. Love Perspective. To persuade, determines whether the story is effec- umns on legal writing’s don’ts. The make your reader identify with your tive. Organize facts chronologically. Legal Writer will then continue with client. Write about real people and Reciting facts witness by witness won’t columns on grammar errors, punctua- real events. Your client isn’t a wooden engage the reader. tion issues, and legal-writing contro- figure, although your adversary’s cli- A brief’s Statement of the Case or versies. Together this series of columns ent might be. Bring your client to life. Counterstatement section or an office covers legal writing’s do’s, don’ts, and The way you refer to people affects memorandum’s Facts section, should maybes. how readers perceive them. Use your contain only facts, not argument. There’s no one way to write it right. client’s real name. If you represent the Don’t explain the significance of the Good writers do things differently. But defendant in a criminal case, describe facts. Save the argument for the brief’s writers and readers always agree about the crime blandly or generally. If you Argument section or office memoran- whether a document is written well. represent the prosecution, invoke the dum’s Discussion section. Despite the controversies about some victim’s perspective and describe the In a brief, present facts favorable legal-writing details, there’s a consen- crime in detail. A key place for per- to your position first. Readers will sus about what’s important: accuracy, spective is when you write the facts. prejudge the case and rationalize later brevity, clarity, and honesty. Here’s the Telling a revealing and vivid story will inconsistent facts because of what they consensus — the things writers should engage the reader and help the reader already believe is true. Example: A man love. remember what you wrote. you’ve already described as a pillar of 1. Love the Right Tone. Tone helps 3. Love Theme. Every persuasive the community walks into a bar and determine whether readers will accept legal document must have a theme. spills beer on someone. The reader will what you write. To get your tone Without a theme, a document won’t infer that the spilling was accidental. right, ascertain whom you’re writing be persuasive. A theme works if it When you later argue it was acciden- for. Anticipate the reader’s concerns. appeals to a smart high-school student. tal, the reader will agree. Example: A Always be measured, rational, and Themes involve right and wrong, good man you’ve already described as dis- respectful. Never be bitter, conde- and bad. Theme is about what’s just honest and vile walks into a bar and scending, defensive, defiant, sarcas- and moral. To create a theme, imag- spills beer on someone. The reader will tic, self-righteous, or strident. Don’t ine you’re in a jurisdiction with no CONTINUED ON PAGE 56
64 | May 2007 | NYSBA Journal Electronic copy available at: http://ssrn.com/abstract=1294833 THE LEGAL WRITER court should reverse the conviction.” only facts that advance your theme CONTINUED FROM PAGE 64 State clearly and repeatedly why and help good arguments get noticed. you’re writing. What do you want? Cite only to legal authority that’s help- infer that the spilling was intentional. What relief are you seeking? Go from ful to your argument. Unless you want When you later argue it was inten- general to specific, but don’t general- to analogize or distinguish your case tional, the reader will agree. Surround ize. Raise the issue before you explain from the authority you’re citing, don’t unfavorable facts with favorable facts it. Give the rule before you give the analyze the authority in depth or give for a halo effect. Emphasize favorable exception. Give rules and exceptions its facts. Don’t add unnecessary text by facts and de-emphasize unfavorable in separate sentences. Lay a foundation defining and qualifying. ones. In a brief, never let two sentences before you discuss something: Don’t 8. Love Concision. Use only neces- pass without letting the reader know discuss the terms of a contract before sary words: the fewest words without which side you represent. you establish that the parties have a losing precision in language, because In an office memorandum, present contract. Familiarize readers with a precision is more important than con- the facts neutrally and objectively, with case before you analogize or distin- cision. Make every word count. If the no intention to persuade the reader. guish it. Introduce characters before last line of a paragraph has only a few The reader shouldn’t know from the you talk about them. words, cut words out of the paragraph facts what you’ll ultimately recom- 6. Love Getting to the Point Fast. to save a line. Deleting unnecessary mend or predict. State your point in the first paragraph words will make your writing tighter In a brief’s Argument section or on page one of your document or, in a and your document shorter. This tech- an office memorandum’s Discussion brief, in the Argument section. Putting nique lets you come within the page section, apply only those facts men- your main point up front gives your limit. Obliterate the obvious. Incorrect: tioned in your facts. In your facts, readers the conclusion in case they “If respondent is evicted, he will have use only those facts you’ll apply in don’t read further. It tempts readers to to leave his apartment.” Replace coor- the Argument or Discussion section. continue and puts everything in con- dinating conjunctions (“and,” “but,” Review your facts after preparing the text. Consider the shape of a funnel or “for,” “nor,” “or,” “so,” “yet”) with Argument or Discussion sections to inverted pyramid: give the conclusion a period. Then start a new sentence. confirm that you’ve included all neces- (the big picture), then detail. Stating Transfer to a second sentence most sary facts. Eliminate irrelevant dates, your point immediately in a brief means parenthetical expressions, also called facts, people, and places. The record including a thesis paragraph after each embedded clauses — an internal word must support every assertion of fact, point heading. The thesis paragraph is group that has its own subject and which comes from pleadings, affida- the roadmap, the organization to your verb. Doing so shortens your sentence vits, and deposition, hearing, and trial argument. In the topic sentence — first and thus is concise, even though it transcripts. Always cite the record for sentence — of the thesis paragraph, might add text. Example: “The judge’s facts mentioned anywhere in a brief or state your conclusion on the issue. Then chambers, which has a view of the office memorandum. explain how you’ve reached that con- Empire State Building, is on the ninth The brief’s Statement of the Case clusion: why you should win. Conclude floor.” Becomes: “The judge’s chambers or Counterstatement should begin the thesis paragraph with a thesis sen- is on the ninth floor. It has a view with something about the person you tence: what you want the court to do. of the Empire State Building.” Delete want the reader to identify with or In an office memorandum, begin the “as” and “to be,” if possible. Examples: hate. Start from that person’s perspec- thesis paragraph with a topic sentence: “Some consider cigarette smoking as tive. End the Statement of the Case or a statement of your issue. Then state a crime.” Or: “Some consider ciga- Counterstatement with procedural his- the law objectively on the issue from rette smoking to be a crime.” Become: tory. The office memorandum’s Facts your topic sentence. Conclude the the- “Some consider cigarette smoking a section should begin with procedural sis paragraph with a recommendation crime.” Don’t begin sentences with history. or prediction. “in that” or use “in that” in an internal 5. Love Clarity. Jewelers say that 7. Love Succinctness. Readers have clause: “In that the judge’s cousin was the better the clarity, the better the short attention spans. Don’t repeat a litigant, the judge recused herself.” quality. The same applies to legal writ- yourself: Say it once, all in one place. Becomes: “The judge recused herself ing. Omit unnecessary fact, law, and Don’t dwell on givens. Don’t give the because her cousin was a litigant.” procedure. In sentences, paragraphs, entire procedural history unless doing Delete “being.” Example: “The attorney and sections, put essential things first. so advances your argument or proves was regarded as being a good writer.” Assume that the reader knows noth- necessary in context. Include only legal- Becomes: “The attorney was regarded ing about your case. Write directly, ly significant facts, apply only relevant as a good writer.” Wipe out “of” and not indirectly. Example: “Justice is an law to those facts, and tell your readers “as of.” Delete the following: “in fact,” important concept.” Becomes: “This only what they need to know. Include “in point of fact,” “as a matter of fact,”
56 | May 2007 | NYSBA Journal “the fact is that,” “given the fact that,” similes, parallelism, and antithesis. an important case in which you must “the fact that,” “of the fact that,” and Metaphors, which compare unlike preserve the record for appeal. State “in spite of the fact that.” Save “in fact” things that have something in com- your main point within 90 seconds. to state facts, not opinions. Incorrect: mon, make abstract concepts concrete. Recite facts chronologically. Add detail “The opinion relies on the fact that tes- Examples: “You don’t get a second bite to tell a memorable story. Cut out facts timonial statements are inadmissible from the apple.” “Property rights are a that don’t advance your argument. Use at trial.” Correct: “The opinion relies bundle of sticks.” “The court must sup- 50 to 75 words to frame your issue. on the rule that testimonial statements press the fruit of the poisonous tree.” A In a brief, use separate sentences to are inadmissible at trial.” Strike the simile is a comparison using “as,” “as create a statement-statement-question nonstructural “who,” “who are,” “who if,” “as though,” or “like.” Examples: format for each Question Presented. is,” “whoever,” “whom,” “whomev- “A judge is like an umpire at a base- Starting your question with “wheth- er,” “which,” “which is,” “which are,” ball game.” “Judges are like funnels: er” and writing one long, convoluted
There’s a consensus about what’s important: accuracy, brevity, clarity, and honesty.
“which were,” “that,” “that is,” “that There’s a big opening at the top and all sentence is superficial and ineffective. are,” and “that were.” Example: “The the law clerks and the staff attorneys The first two sentences in this state- point that I’m making is that . . . .” pour stuff in there.”1 Another effective ment-statement-question format pres- Becomes: “The point I’m making is that device is parallelism: a similarity of ent the legal controversy and introduce . . . .” Trim “to” stilts: “Help to prepare” structure in a pair or series of words, relevant facts. The last sentence is a becomes “help prepare.” “In an attempt phrases, and thoughts. Examples: “A question that goes to the heart of the to,” “in an effort to,” “in order to,” “so government of the people, by the peo- issue. Write the question so that the as to,” “unto,” “with a view to,” and ple, and for the people.”2 “We will answer is yes. The answers to the “with the object being to” become “to.” not tire, we will not falter, and we Questions Presented are found in your “In order for” becomes “for.” “Is autho- will not fail.”3 “I came, I saw, I con- point headings. In an office memo- rized to” becomes “may.” “With refer- quered.”4 Antithesis is powerful when randum, write the Issues Presented ence to,” “with regard to,” and “with it concisely contrasts ideas of the same as a question, one sentence long, respect to” become “about.” Eliminate order. Examples: “Injustice anywhere that addresses the issues. To prevent pleonasms. They’re unnecessarily full threatens justice everywhere.”5 “Never a long, intricate question, write the expressions. Example: “The judge, who in the field of human conflict was so Issues Presented in a statement-state- e-mailed me, he likes me.” Becomes: “The much owed by so many to so few.”6 ment-question format. After the Issues judge, who e-mailed me, likes me.” “We must all hang together or we will Presented, include an Answer section 9. Love Concreteness. Don’t just tell all hang separately.”7 — answer the Issues Presented with a your readers something: Show them 11. Love Issues. A common mistake “yes,” “no,” or “maybe” and the con- what you mean. Show by describing law students make is to focus on cita- cise reasons for your answer, without people, places, and things. Abstract tions instead of issues and arguments. repeating the question and without conclusions don’t help readers under- Stress issues and arguments, not cita- using “because.” stand the problem. Turn the gener- tions. Give rules first. Then support First argue the issue that has the al and vague into the particular and them with citations. greatest likelihood of success. If all vivid. Write so that readers will hear, Here are some suggestions on writ- claims have the same likelihood of see, smell, taste, and touch your ideas. ing issues, called Questions Presented success, discuss the claim that’ll affect Prefer concrete nouns and vigorous in a brief or Issues Presented in an the litigation most. In a criminal appeal verbs to adverbs and adjectives. Use office memorandum. Choose one to in which you represent the defendant, adjectives and adverbs sparingly. Poor four issues. An issue is an independent for example, discuss whether the court examples: “The man is tall.” Or: “The ground on which the relief you seek should grant your client a new trial man is very tall.” Good example: “The can be granted if the reader agrees with before you discuss whether the court man is seven feet, three inches tall.” you on that issue and disagrees with should reduce your client’s sentence. 10. Love Memorable Rhetoric. you on everything else. Avoid trivial Exceptions: Your first issue should Rhetoric is the art of marshaling and issues. The only time you should raise be a dispositive threshold issue — expressing argument. Embrace rhe- as many points as possible — the jurisdiction or statute of limitations torical strategies by using metaphors, kitchen-sink approach — is if you have — if you have one. Move logically
NYSBA Journal | May 2007 | 57 Putting your main point up front gives With subheadings or sub-subheadings, tence mean “Not because of this, but you need two or more subheadings rather because of that”? Or “Not so, your readers the (A., B.) or sub-subheadings (1., 2.). The and for this reason”? Or “Because of conclusion in case they exception is that you can have a single this, but for a different reason”? Use point heading (I.) on its own. Use a “because” before “not,” but never use don’t read further. period after each heading, subheading, “not” before “because” unless you add or sub-subheading. Single-space your a second clause or sentence. through statutory or common-law headings. What goes in the text after the head- tests. Discuss your issues in the order All headings, subheadings, and ing, subheading, and sub-subheading in which the statute or case laid out a sub-subheadings should be one sen- shouldn’t repeat the heading, sub- multi-factor test. When the answer to tence long, although they may contain heading, and sub-subheading. Be cre- one issue depends on the answer to an a semicolon. They must be concise, ative. Don’t regurgitate. Don’t even earlier question, resolve the first issue descriptive, and short. paraphrase. first. Discussing claims and issues in Point headings in a brief answer In the body of your document, the order they arose facilitates under- the Questions Presented. Match the bold your headings, subheadings, standing if the claims and issues arose number and order of your Questions and sub-subheadings, including the chronologically. Resolve issues by a Presented with your point headings. If roman numerals, letters, and figures hierarchy of authority: constitutional you have one Question Presented, you that come before them. Don’t bold issues first, then statutory issues, then should have one point heading; if you anything in the brief’s table of contents common-law issues. have two Questions Presented, have or use a period after each heading. Use In opposition papers, don’t copy the two point headings. If you have two dot leaders in your table of contents to way your adversary ordered the issues. or more Questions Presented, men- separate your headings from their cor- Tell your reader which issue you’re tion them in the same order in the responding page numbers. opposing, but order your opposing table of contents and in the Argument 13. Love Large-Scale Organization: issues the way it works for your client, section. In the office memorandum’s IRARC and CRARC. For a brief’s not your adversary. Discussion section, address the issues Argument section, organize each 12. Love Large-Scale Organization: in the same order as you did in the issue using the CRARC method Headings. Structure your writing so Issues Presented. — the Legal Writer’s patent-pend- that the reader follows your thoughts In a brief, write headings in an ing way to organize. CRARC is an from the beginning to the end of affirmative, argumentative, and con- IRAC variant (Issue, Rule, Analysis, the document. Identify each section clusory way — the conclusion you and Conclusion). CRARC stands for in your brief or office memoran- want after applying law to fact. The Conclusion, Rule, Analysis, Rebuttal dum: “Question Presented” or “Issue more subheadings or sub-subheadings, and Refutation, and Conclusion. In the Presented”; “Statement of the Case” the more conclusory the point head- first Conclusion section of CRARC, (opening brief) or “Counterstatement” ings. The argument in the subheadings state the issue and why you should (replying brief) or “Facts”; “Argument” should add up to the argument in the prevail on it. In the Rule section, state or “Discussion”; and “Conclusion.” point headings. The sub-subheadings your points from the strongest (those After you’ve figured out the issues should add up to the subheadings. you’ll most likely win) to the weakest and how to order them, divide your Too many headings will break up the (those you’ll least likely win). After brief’s Argument section or office text too much. Your document will be each rule, cite your authority from the memorandum’s Discussion section disjointed and have no flow. Too few strongest to the weakest and from the into headings to tell readers where headings will make your document most binding on down. In the Analysis you’re going. Headings are signposts. disorganized. To determine whether section, apply your rules — the law Use roman numerals for your point you’ve enough headings, read all the — to the facts of your case. The facts headings (I., II., III.). Some writers headings in the table of contents as should come from the Statement of believe that you should use all capitals they appear in the brief. The argument the Case or Counterstatement. In the for your point headings. The Legal should reveal itself. Rebuttal and Refutation section, state Writer recommends capitalizing only In an office memorandum, write the the other side’s position honestly and the first letter of each word. All capitals headings in an objective, neutral, and refute it persuasively. Address adverse is unreadable. For your subheadings informative way. fact and law, even if your adversary (A., B., C.), capitalize the first letter of Keep your subject near its predicate. didn’t or might not. Doing so will dif- each word: Don’t use all capitals. For Don’t interject information between fuse its impact before your reader fig- your sub-subheadings, use figures (1., your subject and predicate. Never ures out your adversary’s argument. 2., 3.). You can’t have a subheading (A.) write ambiguous headings in which The Rebuttal and Refutation section is or a sub-subheading (1.) on its own. “not” precedes “because.” Will the sen- placed here on purpose. The Rebuttal
58 | May 2007 | NYSBA Journal and Refutation section is in the middle, not the beginning or end — places with the greatest emphasis — of the argument. You’ve begun with why you should win. You’re right because you’re right, more than because the other side is wrong. In the Rebuttal and Refutation section, don’t repeat anything you’ve written in the Rule section. In the sec- ond Conclusion section, state the relief you’re seeking on the issue. For an objective office memoran- dum’s Discussion section, organize each issue using the IRARC method — the Legal Writer’s other organizational tool. IRARC, an IRAC variant, stands for the Issue, Rule, Analysis, Rebuttal and Refutation, and Conclusion. In the Issue section, state the issue objec- tively. In the Rule section, state the rule applicable to the issue. Then support each point with the law. In the Analysis section, apply your rules — the law — to the facts of your case. Facts come from the Facts section, which is compiled from affidavits, affirmations, and deposition, hearing, and trial tran- scripts. In the Rebuttal and Refutation section, create a strawman argument — the contrary argument — and then refute it. In the second Conclusion section, give your recommendation or prediction. In the next issue, the Legal Writer will continue with a second set of 13 do’s. Following that column will be two columns on legal writing’s don’ts. ■
1. Richard S. Arnold, The Future of the Federal Courts, 60 Mo. L. Rev. 533, 543 (1995). 2. Abraham Lincoln, Address Delivered at the Dedication of the Cemetery at Gettysburg (Nov. 19, 1863), in 7 The Collected Works of Abraham Lincoln 17, 23 (Roy P. Basler ed., 1953). 3. George W. Bush, address before Joint Meeting of Congress, September 20, 2001. 4. “I came, I saw, I conquered” is the English translation of Julius Caesar’s oft-quoted statement from the Latin, “Veni, vidi, vici.” 5. Rev. Dr. Martin Luther King Jr., Letter from the Birmingham Jail, Apr. 16, 1963, available at http:// www.almaz.com/nobel/peace/MLK-jail.html (last visited Feb. 22, 2007). 6. Sir Winston S. Churchill, 1940, on the debt due to the Royal Air Force pilots during World War II. 7. John Bartlett, Familiar Quotations 348 (15th ed. 1980) (attributing these words to Benjamin Franklin).
NYSBA Journal | May 2007 | 59 JUNE 2007 VOL. 79 | NO. 5 JournalNEW YORK STATE BAR ASSOCIATION
Smoke and Mirrors The Fabrication and Alteration of Electronic Evidence Manipulated Evidence Can Be More Also in this Issue Powerful Than the Sum of Its Parts Military Voting Rights Motorist Insurance Law by Sharon D. Nelson and John W. Simek Update – Part I Uniform Laws Commission Cruise Passengers – Part II
Special pullout section— 2006–2007 Report to Membership
Electronic copy available at: http://ssrn.com/abstract=1294834 THE LEGAL WRITER BY GERALD LEBOVITS
GERALD LEBOVITS is a judge of the New York City Civil Court, Housing Part, in Manhattan. He thanks court attorney Alexandra Standish for assisting in researching this column. His e-mail address is [email protected].
Do’s, Don’ts, and Maybes: Legal Writing Do’s — Part II
n the last column, the Legal Writer with more than 25 words is hard to Versus: “Bill’s a good worker, but he discussed 13 things you should do digest. Each sentence should contain drinks.” Start and end with power. Iin legal writing. We continue with one thought and about 15–18 words. Bury less important information in the our list of the next 13 do’s. Together the A paragraph should rarely be longer middle. The best writing doesn’t rely columns are a double baker’s dozen of than six sentences. It shouldn’t exceed excessively on conjunctive adverbs like legal writing’s do’s — the things writ- one thought and two-thirds of a dou- “additionally,” “along the same lines,” ers should love. ble-spaced page or 250 words, which- “furthermore,” “however,” “in addi- 14. Love Small-Scale Organization: ever is less. Varying sentence and para- tion,” “in conclusion,” “moreover,” Paragraphs. Paragraphs are the build- graph length makes your writing spicy “lastly,” and “therefore.” If the logic ing blocks of writing. Start each para- and more readable. When in doubt, and movement of your ideas are clear, graph with a topic or transition sen- shorter is better. Reserve one-sentence your reader connects thoughts without tence. A topic sentence introduces paragraphs for those sentences that needing artificial transitional devices what you’re going to discuss in your must have great emphasis. If you use that impose superficial logic. paragraph. Every sentence in each too many one-sentence paragraphs, the 17. Love Simple Declarative paragraph must relate to and amplify emphatic effect will be lost. Also, too Sentences. Don’t write convoluted your topic sentence. One way to have many short sentences or paragraphs in sentences. Each sentence should con- a topic sentence is to take the last rapid order is angry-sounding, choppy, tain a subject, a verb, and an object. sentence of a paragraph and put it and distracting. Put the subject at the beginning of onto the next. A transition sentence To see your “average words per most sentences. Examples: “The court links the end of one paragraph to the sentence” on WordPerfect, go to “File,” . . . .” “Defendant . . . .” “The witness start of the next paragraph by linking then “Properties,” and then “Word . . . .” Use a short subject. Put the verb or repeating a word or concept. Use Count.” On Microsoft Word, you have immediately after the subject. Don’t transitional devices to divide para- two ways to see your “words” and put words between the subject and graphs and to connect one paragraph “paragraphs.” Go to “Tools,” then the verb: keep your subjects next to to the next when a paragraph becomes “Word Count,” or go to “File,” then their verbs. Examples: “The court held lengthy. The best transitional devices “Properties,” and then “Statistics.” . . . .” “Defendant fled . . . .” “The wit- join paragraphs seamlessly. End your 16. Love Small-Scale Organization: ness explained . . . .” Misplacing your paragraph with a thesis sentence that Sentences. Start sentences with famil- subject, not keeping your subject next summarizes and answers your topic iar, less important information. End to your verb or object, or placing quali- sentence. Don’t restate your topic sen- sentences with new, more important fying or descriptive information before tence. Every sentence in the paragraph information. The best writing repeats the main subject and its verb (“front- should lead to the conclusion set out in in the beginning of the second sentence loading”) are common errors that lead the thesis sentence. Each sentence must concepts, names, phrases, and words to lack of clarity. relate to the next, to the one before it, taken from the end of the first sentence. Don’t begin every sentence with a to the topic sentence, and to the thesis Transition from sentence to sentence subject. From time to time substitute sentence. Topic sentence: “Defendant by going from old to new, from simple subjects with subordinate clauses, also lied about his relationship with ABC.” to complex, from short to long, or called dependent clauses, to assure flow Thesis sentence: “The court should reject from general to specific. The strongest and to rank ideas by importance. Then defendant’s testimony as incredible.” emphasis is at the end of a sentence. place the main idea in the main clause, Transition sentence: “Defendant also The second strongest is at the begin- after the dependent clause. A subordi- lied about his relationship with XYZ.” ning of a sentence. The least emphasis nate clause begins with a subordinate 15. Love Appropriate Paragraph is in the middle of a sentence. Example: conjunction (“after,” “although,” “as,” and Sentence Length. A sentence “Bill drinks, but he’s a good worker.” CONTINUED ON PAGE 53
64 | June 2007 | NYSBA Journal Electronic copy available at: http://ssrn.com/abstract=1294834 THE LEGAL WRITER CONTINUED FROM PAGE 64 “because,” “before,” “if,” “though,” The active voice is concise; the passive, “until,” “when,” “where,” or “while”) wordy. The active voice is always honest; or a relative pronoun (“that,” “which,” “who,” “whoever,” or “whom”) and the passive is sometimes dishonest. will contain a subject and a verb. For variety, begin sentences occasionally with “after,” “although,” “as,” “as if,” lawyer.” If you see a “by,” you’ll see a Gender-neutral language focuses read- “as long as,” “because,” “before,” “if,” single passive. ers on content. A writer’s goal is to “though,” “until,” “when,” “where,” Use single passives only to dovetail emphasize content, not style. or “while.” or to end a sentence with climax. To The first way to make language gen- Not every sentence should be dovetail is to connect sentences. To cli- der neutral is to make the antecedent simple. A few should be compound, max is to end a sentence with empha- plural: “A law clerk can’t be careless. complex, or compound-complex. sis. One dovetailing technique is to She must be meticulous and precise.” Compound sentences contain two move from old to new. Active example: Change “a law clerk” to “law clerks” independent clauses: the clauses are “Mr. Smith wrote the brief. Mr. Smith and “she” to “they” to eliminate the linked with a semicolon, or they are is a strong writer.” Dovetail examples: sexist language. Becomes: “Law clerks linked with a coordinating conjunc- The brief was written by Mr. Smith, can’t be careless. They must be meticu- tion. Example: “New York City is fun who is a strong writer.” Or: “The brief lous and precise.” The second way is and exciting, but it doesn’t compare to was written by Mr. Smith. Mr. Smith is to rephrase the sentence to eliminate Montréal.” Complex sentences contain a strong writer.” Climax example: “The the pronoun: “She who can’t handle a main, independent clause and at ground was shaken by an earthquake.” the work should find another job.” least one dependent clause linked by The word “earthquake” brings about Becomes: “Anyone who can’t handle a subordinating conjunction. Examples: the climax; the words “the ground” the work should find another job.” “A “Although Montréal is a fun town, I aren’t that important. The active ver- waiter likes his customers to be gener- don’t visit often enough.” Compound- sion is less interesting than the passive ous.” Becomes: “A waiter likes gener- complex sentences contain at least two version: “An earthquake shook the ous customers.” The third way is to independent clauses, and at least one ground.” repeat the noun. “A police officer will dependent clause, all somehow linked. Sometimes blank passives hide be here soon. He’ll help you.” Becomes: Example: “New York City is fun and what’s important but harmful. Using “A police officer will be here soon. The exciting, and so is Montréal, but New blank passives to conceal information officer will help you.” The fourth way York City doesn’t compare to Montréal, is unethical. Example: “Mistakes were is to use the second-person pronoun: although I don’t visit Montréal often made.” In this sentence, you don’t “you,” “your,” or “yours.” “He who enough.” know who made the mistakes. Becomes: can write should apply for the job.” 18. Love the Active Voice. Prefer the “Attorney Abe made mistakes.” Becomes: “If you can write, apply for active voice to the passive. The passive Example: “The suspect was read her the job.” voice comes in two forms: single pas- Miranda rights.” The problem with this Eliminate all sexist language. Use sives and blank passives. Blank pas- sentence is that you don’t know who gender-neutral parallel language: Write sives are sometimes called double or read the suspect her rights. Write it in “husband and wife,” not “man and nonagentive passives. A single passive the active voice instead: “Officer Jones wife” or “man and woman.” Delete occurs when a sentence is converted to read the suspect her Miranda rights.” the suffix “-man.” Use “Assembly object, verb, subject from subject, verb, Exceptions: Use blank passives if you Member” not “Assemblyman”; “Chair” object. The blank passive hides the sub- don’t know who the subject (actor) is not “Chairman” or “Chairperson”; and ject. The active voice lets readers know or to de-emphasize an irrelevant or “Police officer” not “Policeman.” Avoid who did what to whom, in that order. obvious subject (actor). the suffixes “-ess” and “-trix.” Use The active voice is concise; the passive, 19. Love Gender-Neutral Language. “executor,” not “executrix”; “prosecu- wordy. The active voice is always hon- Gender neutrality isn’t about political tor,” not “prosecutrix.” Eliminate mas- est; the passive is sometimes dishonest. correctness. It’s about thinking and culine terms: “humanity,” not “man- People think in the active voice, not writing in a nondiscriminatory way. kind”; “made by hand,” not “man- the passive. Active voice: “The lawyer Sexist language is bad because it’s made”; “average person,” not “com- wrote the brief.” This sentence goes offensive and degrading. It’s discrimi- mon man.” Don’t use clumsy variants from subject, to verb, to object. Single nation in print. Sexist language is also like “s/he/it,” “s/he,” “(s)he,” “he passive: “The brief was written by the bad because it focuses readers on style. or she,” or “him or her,” or alternate
NYSBA Journal | June 2007 | 53 between “he” and “she.” Never write only in a newspaper headline. Use The appellate court held that the lower ungrammatically to solve a gender double quotation marks to set off or court “should have denied the sum- issue. Incorrect: “A gourmet likes their define a word or phrase and to repeat mary-judgment motion.” coffee black.” Correct: “Gourmets like speech. People don’t like to read quotations. black coffee.” All quoting must be accurate. Tempt them. Introduce the quotation 20. Love Good Quoting. To quote Always proofread your quotation from with a lead-in, weave the quotation into or not to quote — that’s the question. the original source to assure perfect the sentence, or use an upshot to para- Quoting shows readers you’re reliable: quoting, letter for letter, comma for phrase the meaning of the quotation. The reader needn’t consult the source comma. Show if you’ve altered, added, Lead-in: “As the prosecutor explained, to confirm your argument. or deleted language. Use brackets “[]” ‘The defendant bought a gun.’” Weave: “The prosecutor explained that defen- dant ‘bought a gun’ before he commit- Readers think that if you’ll cheat on rules, ted the crime.” Upshot: “The prosecu- tor explained that the defendant pur- you’ll lie about the record or not cite chased the murder weapon before he committed the crime: ‘The defendant controlling authority. bought a gun.’” 21. Love and Follow Rules. Readers Quoting is good if done reasonably. to show alterations or additions to a think that if you’ll cheat on rules, Quote essential things you can’t say letter or letters in a word. Alterations: you’ll lie about the record or not cite better than the original. Quote authori- “Substantially” becomes “Substantial[].” controlling authority. Your credibility tative sources. If a case, contract, or “Substantial” becomes “Substantial[ly].” — essential to legal writing — will van- statute is in dispute, quote it. Quote to “Substantially” becomes [s]ubstantially.” ish. If you’re submitting a document to eliminate any suggestion of plagiarism. “Substantlly” becomes “substant[ia]lly.” a court, follow the court’s rules about Then quote only what’s helpful or Additions: “The judge did [not] like to page length, table of contents, font, necessary. Quoting excessively makes make jakes [sic] in court.” When quot- paper color, and number of copies you your document look choppy and you ed material contains a spelling, usage, must submit. It’s easy to comply with look lazy. Excessive quoting doesn’t or factual error, use “[sic],” meaning these rules; many courts publish their substitute for analysis. Paraphrase and “thus,” after the error to show that the rules on their Web sites. Make sure in explain instead, and cite the source. error is in the original. If the context particular to follow the rules of the Don’t use block quotations (also makes it clear that the error was in judge who’s presiding over your case. called blocked or set-off quotations) the original, don’t add “[sic].” If you Your office might have its own rules on unless you’re quoting important parts overuse “[sic],” the reader will believe style and format. Follow them, too. of a statute, contract, or critical test you’ve used the quoted material only 22. Love Good Format. Write for from a case. The Legal Writer recom- to highlight the error. To prevent over- the ear, not the eye. But create easy-to- mends that quotations of 50 words or using “[sic],” alter the quotation or read documents. Presentation always more be double-indented. Others sug- paraphrase it. counts. Readers need plenty of white gest blocking quotations of three lines Use ellipses to show omission. Use space on a page. Your margins should or more. Single-space block quotations, three-dot ellipses (“. . .”), all sepa- measure at least one inch, up to 1.25 but double space between block para- rated by spaces, to show omissions of inches, on the bottom, sides, and top. graphs. Never end a paragraph with a punctuation or one word or more in Indent your paragraphs one tab from block quotation. The Tanbook — New the middle of the sentence. Use four- the margin. The Legal Writer prefers York’s Official Style Manual — recom- dot ellipses (“. . . .”), all separated by single spacing, although many court mends that you use double quotation spaces, to show omissions at the end rules require double spacing between marks (“ ”) around the entire block of a sentence if (1) the end of the quo- paragraphs. The Legal Writer prefers quotation. The Bluebook advises not to tation is omitted; (2) the part omitted two spaces between sentences, not just surround the block quotation with quo- isn’t a citation, a footnote, or an end- one space. If you’re writing an article tation marks. The Legal Writer recom- note; and (3) the remaining portion is for publication, for example, editors mends using double quotation marks an independent clause. Unless all three will convert to one space between sen- around the block quotation. They make criteria are satisfied, use a period, not tences. The Legal Writer also prefers it easier to see quotations, especially in an ellipse. Don’t use ellipses before right-ragged margins to fully justified documents published online. the portion you quote. Example: The ones. Don’t create a kaleidoscope of Use single quotation marks (‘ ’) appellate court held that the lower colored or highlighted text. Choose one around a quotation within a quotation. court “. . . should have denied the font and stick to it. The Legal Writer Otherwise use single quotation marks summary-judgment motion.” Becomes: recommends Times New Roman or any
54 | June 2007 | NYSBA Journal font with the word “book” in it, with judges use the New York Law Reports — at the beginning of the parentheti- 12- or 13-point font size. Italicize case Style Manual (Tanbook),1 prepared by cal explanation: “citing,” “comparing,” names. Don’t underline and italicize the New York Law Reporting Bureau.2 “distinguishing,” “finding,” “holding,” at the same time. Number each page Make it easy for the court to rule for or “noting.” Example: A v. B, 3 N.Y. (suppress the first page) unless you’re you. Use the Tanbook when you write 123, 125 n.4, 55 N.Y.S.2d 231, 234 n.4, writing an affidavit or an affirmation, for New York courts. The Bluebook 1 N.E. 456, 457 n.4 (1981) (holding that then number your paragraphs. Get rid and ALWD are brilliant documents. But landlord may take for personal use of orphans and widows. An orphan is their recommendations on how to cite one or more apartments in building a single word or phrase at the end of a New York authorities are always wrong; if landlord shows good faith at trial). paragraph or page. A widow is a single and the Tanbook is always right. Pinpoint even if your proposition is on word or phrase appearing alone at the Citing well makes you credible. It the first page: E v. F, 16 Misc. 61, 61, 18 top of a page. tells readers to trust you and your writ- N.Y.S 75, 75 (App. Term 2d & 11th Jud. 23. Love Official Citations. Always ing. Use the correct volume, reporter, Dists. 2d Dep’t 1961) (per curiam). The cite the official version when you cite a page number, and case name. Accurate same applies if your authority has only New York case to a New York court. The citations help readers find propositions one page. court system gives most judges only fast. Give a full citation in each new One good citation is enough. Don’t the official reports; official citations section of your document before you string cite obvious or threshold matters. are more accurate than unofficial ones; give a short-form citation; then always Limit string citing to three cases except and CPLR 5529(e) requires lawyers to use the short-form citation in that sec- when you must document the sources use official citations in appellate briefs. tion of your document. Use signals to necessary to understand authority or Prefer the New York Reports and its introduce citations. No signal is neces- a split in authority. Separate different Second or Third Series (N.Y., N.Y.2d, sary after a quotation or if the citation authorities by semicolons. Never cite N.Y.3d) to West’s North Eastern Report supports your proposition directly. Use headnotes and syllabuses. and its Second Series (N.E. or N.E.2d) “contra” if your citation contradicts 25. Love Deadlines. Submit court or West’s New York Supplement and your proposition directly. Use “see” if documents on time. If you need more its Second Series (N.Y.S. or N.Y.S.2d); your citation supports your proposi- time, ask the court in advance, not after the New York Appellate Division tion indirectly or by inference. When the document is due. If your boss gave Reports and its Second or Third Series you use “see,” explain in the text or in you a deadline, follow it. Adhering to (A.D., A.D.2d, A.D.3d) to West’s New a parenthetical following the citation deadlines shows that you’re profes- York Supplement and its Second Series why the citation supports your propo- sional and responsible. It shows that (N.Y.S. or N.Y.S.2d); and the New York sition. Use “but see” if your citation you respect and value someone else’s Miscellaneous Reports and its Second contradicts your proposition indirectly. time. If you gave yourself a deadline, or Third Series (Misc., Misc. 2d, Misc. Use pinpoint (jump) citations. This follow it, too. 3d) to West’s New York Supplement and forces you to read the authority so that 26. Love Visuals. Paint visuals for its Second Series (N.Y.S. or N.Y.S.2d). you’re certain your authority supports the reader. Attach to your legal docu- Use West’s unofficial reports, but not your proposition fully; it also helps ment the authority you’ve cited if the instead of the official citations. In New you find other citations and arguments. authority is unpublished. If you’re York, it’s unnecessary to give parallel Pinpointing tells readers that you’ve submitting a document to a trial court, citations. If you do, always cite and use read the case and know the material. attach the leading cases even if the the official citation (N.Y.3d, A.D.3d, It also prevents readers from rummag- cases are published or available on Misc. 3d), if available, in addition to ing through an entire document to find Westlaw or LEXIS. Highlight the rele- the unofficial citation. Use commas to your point. When citing cases or sec- vant text in the attachment. Download separate parallel citations. ondary authorities, use pinpoint cita- photographs and include them in the 24. Love Good Citing. Readers love tions down to the footnotes. Use the document. Create graphs and charts if proper citation. It doesn’t take long to correct court and year to tell the reader you can. Attach them in an appendix look up the rule in the Bluebook, now in whether your authority is binding or and explain them in the text. its eighteenth edition, or in ALWD, the persuasive. Mention in a parenthetical In the next two columns, the Legal Association of Legal Writing Directors after your citation whether the opin- Writer will discuss legal writing’s 26 Citation Manual, now in its third edi- ion is a memorandum, per curiam, en don’ts. ■ tion. The Bluebook has been around banc, dissent, concurrence, or plural- since 1926. Most lawyers, law journals, ity opinion. Mention whether leave or 1. See http://www.courts.state.ny.us/reporter/ New_Styman.htm (last visited Apr. 20, 2007). A new and Moot Court competitions use the certiorari was granted or denied. Use edition of the Tanbook will be released sometime in Bluebook. Some law school legal-writ- parenthetical explanations to clarify the latter part of 2007. ing programs use ALWD as an anti- authority. Use lower-cased gerunds — a 2. See http://www.courts.state.ny.us/reporter dote for the Bluebook blues. New York verb used as a noun that ends in “-ing” (last visited Apr. 20, 2007).
NYSBA Journal | June 2007 | 55 SEPTEMBER 2008 VOL. 80 | NO. 7 JournalNEW YORK STATE BAR ASSOCIATION
A Special Issue on Law Practice Management: What Does the Future Hold?
Understanding the perils and Articles by opportunities in 21st-century Richard S. Granat law practice Susan Raridon Lambreth Roland B. Smith and Paul Bennett Marrow Gary A. Munneke Arthur G. Greene and Sandra J. Boyer Alan Feigenbaum
Electronic copy available at: http://ssrn.com/abstract=1296675 THE LEGAL WRITER BY GERALD LEBOVITS
Fact vs. Fiction: Writing the Facts — Part I
rafting fact sections in per- tone for the rest of the meal. A bland how the case is handled.9 In persua- suasive briefs and objective fact section will make readers lose their sive briefs, stir the readers’ emotions Cmemorandums is an essential appetite. to help them remember the facts.10 skill all lawyers must learn. A case is Choose words with slightly positive or never decided on the law alone but Briefs and Memorandums negative connotations rather than with rather on how law applies to fact.1 The persuasive brief and objective exceedingly strong undertones.11 Given the relationship between law memorandum both follow the same Example (objective): “The eleva- and fact, many judges, professors, and general format. Both have questions tor was poorly maintained. There attorneys believe that the fact sec- presented, a fact section, and a discus- was no warning it was going to tion is the most important part of a sion. But facts in briefs and memoran- break.” brief.2 In a persuasive brief, the fact dums are communicated differently.6 Example (persuasive): “The poorly section “tells the story that makes State the facts neutrally in an objec- maintained elevator broke without the fairness of your client’s position tive memorandum. Take sides in a warning, leaving the eight-year-old evident.”3 Objective memorandums, persuasive brief. In a persuasive brief, child stuck in it for three hours.” prepared as intra-office documents, some facts are emphasized and oth- neutrally present the legally relevant ers de-emphasized, depending on the facts before offering a recommenda- theme. This tactic shouldn’t be used in What persuades is tion. This two-part column offers some objective memorandums.7 In objective tips to writing persuasive and objec- memorandums, the reader shouldn’t storytelling. tive fact sections. know from the facts alone what the lawyer will recommend. In persua- The structure of persuasive and Importance of Facts sive briefs, writers shouldn’t go two objective fact sections also differs. According to John W. Davis, the 1924 sentences without making it obvious Objective memorandums should begin Democratic presidential candidate, which side they represent. In deter- with the procedural history. Persuasive “the statement of the facts is not mere- mining which facts to include in the briefs must first introduce a character ly a part of the argument, it is more objective memorandum, don’t con- with whom the reader can identify and often than not the argument itself. sider whether the fact is favorable to end with the procedural aspects of the A case well stated is a case far more the client but whether the fact itself is case. In neither document should the than half argued.”4 The fact section, necessary to determine how the case or drafter argue facts or reach a legal con- which is read immediately before the issue should be resolved.8 clusion in the fact section. Arguments brief’s argument section, becomes the Example (objective memorandum): and conclusions are reserved for the lens through which readers view the “The defendant appeared at the argument section. argument. plaintiff’s house six times over the A well-written fact section has a course of two weeks.” Presentation of Facts natural progression. It emphasizes the Example (persuasive brief): “The A strong fact section will appeal to client’s humanity and communicates defendant harassed the plaintiff for readers immediately and keep them legally significant and determina- two weeks by showing up at her interested throughout. Selecting which tive facts. Because judges are, or will home six times.” facts to present and their subsequent become, familiar with the pertinent Be aware of emotion-laden facts. order is important for the brief’s per- law, the advocate must demonstrate Facts carrying emotional weight must suasiveness. Because the fact section how the unique facts of the case apply be dealt with carefully, especially in is best told as a story, develop a theme to the law.5 If the brief is a meal, the objective memorandums, and should that can be carried throughout the fact fact section is a first course that sets the be included only when they will affect CONTINUED ON PAGE 54
64 | September 2008 | NYSBA Journal Electronic copy available at: http://ssrn.com/abstract=1296675 If the brief is a meal, the fact section THE LEGAL WRITER CONTINUED FROM PAGE 64 is a first course that sets the tone section.12 The theme is the brief’s uni- for the rest of the meal. fying idea. It allows the reader to view the client’s case favorably. It reinforces cant facts must be included in the fact people, places, and dates. Introduce the advocate’s view of the story behind section, regardless whether they favor the most important characters here so the case. It dictates which facts are or disfavor your client. Withholding that the reader will identify with them selected, where they are placed, and legally significant facts might be immediately.27 Present favorable facts whether they are emphasized or de- unethical and may violate court rules.20 and those deemed worthy of emphasis emphasized.13 Use only people, places, Advocates should also include all the at the beginning to force the reader to and dates that directly relate to your opposition’s legally significant facts as analyze the facts from your perspec- or your adversary’s theme. Including a straw man. By presenting the opposi- tive.28 unnecessary information wastes space tion’s facts, the advocate can later con- Example: A man you have already and burns the reader’s brain cells. tradict them or argue their irrelevance described as a community leader There are several ways to choose in the argument section. and a good father is accused of the theme. The theme can be based The fact section should not be a theft. The reader will infer that he on moral or philosophical ideals, pol- summary of witness testimony, a list is innocent. When you later argue icy considerations, or precedent.14 For of facts witness by witness, or a series he is innocent, the reader might example, the theme of a brief about an of lengthy quotations. These methods agree with you. employment case could be about the never persuade. What persuades is Example: A man you have already immorality of discrimination. Look to storytelling. described as deceitful and depraved the reader’s preferences in choosing Once you choose which facts to use, is accused of theft. The reader will the theme. The theme must appeal to, the selected facts must be positioned to infer that he is guilty. When you and be understood by, a smart high- maximize persuasiveness. Improperly later argue he is guilty, the reader school senior. Select the theme before placing facts will damage the fact sec- might agree with you. writing. Choosing the theme during tion’s persuasiveness. Fact sections Unfavorable facts, which should the writing process is ineffective. are organized most often in one of be de-emphasized, belong halfway to There are three basic categories of two ways: chronologically or by issue. two-thirds through the fact section.29 facts. First are legally significant or Chronological order, the more common All legally significant facts, even those determinative facts.15 They help deter- organizational method, emphasizes unfavorable to the client, must be stated mine the reader’s decision. If differ- clarity.21 Sometimes important facts in the brief. But you can control where ent facts would result in a different that require emphasis appear only at they are placed and how persuasive decision, those facts are determina- the end of the chronology. When that they are. By placing bad facts halfway tive facts.16 The second category is happens, present these facts at the to two-thirds through the section, their explanatory facts. These piece together beginning of the section.22 damaging impact is minimized. and make sense of the determinative Some writers organize facts by issue The end of the fact section is where facts.17 The third category is the coin- when two or more legal questions the advocate must place the facts that cidental or irrelevant fact. Although are involved.23 Use an introductory the reader should remember the most. these facts relate to the case, they are paragraph to set out all the issues and Facts read at the end will be fresh in irrelevant to the theme of the brief or the order in which they will be dis- the readers’ minds when they read the memorandum.18 They add only color cussed.24 Each issue should be intro- argument section.30 and background. duced with a topic heading to separate In objective memorandums, the A useful way to decide which facts them. Separate the fact section into cat- procedural history goes at the begin- are necessary is by comparison to the egories like evidence, witnesses, and ning to provide context for the rest of argument section. Go back and forth testimony.25 In a criminal appeal, the the document. All procedural history between the facts and argument sec- categories could be the arrest, the trial, should go at the end of the fact section tion to decide which facts are neces- and the sentence. in a persuasive brief. In a persuasive sary for the brief or memorandum. If Three categories form the structure brief, procedural history strengthens a fact isn’t argued in the argument sec- of the brief’s fact section: the begin- the merits of your case. For example, if tion, omit it in the fact section. If a fact ning, the middle, and the end. a lower court ruled in the client’s favor isn’t in the fact section, it should be cut Grab the reader’s attention at the on a particular aspect of the case but from the argument section. beginning of the fact section to make against the client in general, discuss in Include every fact that supports a lasting impression.26 The beginning the appellate brief the favorable part of and advances your client’s or your is where the writer sets up the rest the ruling and point to facts or omis- adversary’s theme.19 All legally signifi- of the fact section. Identify important sions that affect the unfavorable part.
54 | September 2008 | NYSBA Journal You’re not arguing law. You’re setting defendants might not garner the read- Facts: Foundation of the Appellate Brief, 32 Stetson L. Rev. 415, 417 (2003). out procedural facts in a compelling, er’s sympathy. Investigate the corpora- 6. Ray & Cox, supra note 2, at 151. factual way. tion’s goals to find information associ- 7. Berry, supra note 1, at 90–91; Ray & Cox, supra ated with human emotion like phi- note 2, at 155. Introducing the Characters lanthropy or employing hard-working 8. Ray & Cox, supra note 2, at 151. 9. Id. at 153; Berry, supra note 1, at 90. 39 In selecting the theme for the fact individuals. Present this information 10. Ray & Cox, supra note 2, at 180. section, the advocate also selects the at the beginning of the fact section 11. Id. at 180–81. characters through whom the theme to show the corporate client’s human 12. Berry, supra note 1, at 66, 85. applies. An effective fact section begins side. For example, “XYZ Corporation, 13. Id. at 66, 84–87. with the characters with whom you which employs 45,000 people and has 14. Id. at 66. want the reader to identify and sym- provided automobiles for 3.5 million 15. Berry, supra note 1, at 90; Ray & Cox, supra note 2, at 168–69. 31 pathize. families, is a Delaware corporation 16. Richard K. Neumann, Jr., Legal Reasoning and The first major character introduced with an address of 2345 Main Street, Legal Writing 207 (5th ed. 2005). is usually the protagonist, not the vil- Wilmington, Delaware.”40 This makes 17. Id. at 208. lain.32 Think of how characters in a the corporation likable. Focus on spe- 18. Id. 19. Id. good movie are introduced. Lead with cific individuals when the corpora- 20. Mario Pittoni, Brief Writing and Argumentation the villain only if your story tells how tion must defend against allegations 32 (3d ed. 1967); Berry, supra note 1, at 84. the villain becomes a protagonist, if the of wrongdoing.41 If a senior manager 21. Pittoni, supra note 20, at 32; Berry, supra note 1, villain is downright awful, or if you was responsible for an error that cost at 87; Ray & Cox, supra note 2, at 153. want to fool the reader about how the investors a lot of money, portray the 22. Elligett, supra note 5, at 422. 33 42 23. Berry, supra note 1, at 87. protagonist is really the villain. Select corporation as a victim. 24. Id. the proper character to introduce first. One tactic to humanize criminal 25. Elligett, supra note 5, at 421. The character need not be your paying defendants is to make them a proxy for 26. Berry, supra note 1, at 88. client. The reader will analyze the facts an ideal so that, for example, “holding 27. Brian J. Foley & Ruth Anne Robbins, Fiction through this character’s perspective.34 against the client is a holding against 101: A Primer for Lawyers on How to Use Fiction Writing Techniques to Write a Persuasive Fact Section, 43 Communicate your position. How the Fourth Amendment.” Another 32 Rutgers L.J. 459, 468 (2001). you refer to your client and your adver- technique in the appropriate case is 28. Berry, supra note 1, at 88. sary has a subtle yet important impact.35 to villainize the complaining wit- 29. Ray & Cox, supra note 2, at 171. Refer to your client by name rather than ness or police or to portray the client 30. Id. as Appellant or Respondent. Calling as involved in a “Man Against Self” 31. Foley, supra note 27, at 468. 32. Id. your client Appellant or Respondent struggle.44 In the case of a drug addict, 33. Id. can be confusing, and the reader will depict the defendant as a victim of 34. Id. not identify with the client.36 Referring drugs, a nemesis that becomes a char- 35. Berry, supra note 1, at 88. to your adversaries as Appellant or acter in the story.45 Viewed in this light, 36. Gertrude Block, Effective Legal Writing 176 (5th Respondent will, however, dehuman- the criminal defendant becomes the ed. 1999). 37. Berry, supra note 1, at 90. ize them. protagonist and the drugs the bad guy. 38. Pittoni, supra note 20, at 30–31; Berry, supra note Example: In an abortion case, the The audience will hope that the defen- 1, at 90–91. opposing parties can use different dant’s better nature will triumph.46 39. Foley, supra note 27, at 474. terms to refer to the unborn. Pro- The Legal Writer will discuss other 40. Id. at 475 (emphasis deleted). choice advocates might refer to the issues about the fact section in Part II, 41. Id. unborn as a fetus. Anti-abortionists including writing style, visual aids, 42. Id. ■ 43. Elizabeth Fajans et al., Writing for Legal Practice might use “child.” The two terms and ethical considerations. 188 (2004). 37 have different connotations. 44. Foley, supra note 27, at 470. 1. Carole C. Berry, Effective Appellate Advocacy: Example: Compare how the par- 45. Id. at 473. Brief Writing and Oral Argument 84 (2d ed. 1999) ties were presented in the case of (noting that “[t]he law arises out of the facts”). 46. Id. at 470. Paula Jones against Bill Clinton. 2. Mary Barnard Ray & Barbara J. Cox, Beyond the GERALD LEBOVITS is a judge of the New York City The fact section of Mr. Clinton’s Basics: A Text for Advanced Legal Writing 167 (2d ed. 2003); Berry, supra note 1, at 83–84. The fact section Civil Court, Housing Part, in Manhattan and an brief makes it obvious that he is has different names. It’s called the Statement of the adjunct professor at St. John’s University School the President of the United States. Case (Petitioner) or Counterstatement of the Case of Law. He thanks Fordham University School of (Respondent) in United States Supreme Court briefs. Ms. Jones’s fact section describes Law student Mark S. Goldstein and New York 3. Ray & Cox, supra note 2, at 167. her as a $6.35-an-hour government 4. John W. Davis, The Argument of an Appeal, 26 Law School students James Pincow and Aileen employee and Mr. Clinton as the A.B.A. J. 895, 896 (1940) (quoted in Berry, supra Siclait for assisting in researching this column former governor of Arkansas.38 note 1, at 83–84); accord Wesley Gilmer, Jr., Legal and Part II. Judge Lebovits’s e-mail address is Humanizing some clients is diffi- Research, Writing & Advocacy 183 (2d ed. 1987). [email protected]. 5. Gilmer, supra note 4, at 183–84; Raymond T. cult. Corporate clients and criminal Elligett, Jr. & John M. Scheb, Stating the Case and
NYSBA Journal | September 2008 | 55 OCTOBER 2008 VOL. 80 | NO. 8 JournalNEW YORK STATE BAR ASSOCIATION
But You Promised Me a Promotion
Are False Inducements Actionable Also in this Issue in At-Will Employment? Averting Disaster: Techniques for by Jyotin Hamid Analyzing Business Interruption Claims Rewriting History: The Trial of Susan B. Anthony Update: Did the Appellate Odds Change in 2007?
Electronic copy available at: http://ssrn.com/abstract=1296744 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. Judge Lebovits’s e-mail address is [email protected].
Fact vs. Fiction: Writing the Facts — Part II
he Legal Writer continues from of obvious bias. Bias damages effec- restaurant, as he did every Friday evening, the last issue, discussing tech- tiveness.8 Example: “The plaintiff was the waiter ushered him to his table.” niques to write fact sections in injured when a dog bit him.” The word • Rhythm: Control pace and T 18 persuasive briefs and objective memo- choice in this example is important. Do tempo. Rhythm conveys a mood randums. we call the dog “a ‘pet,’ a ‘guard dog,’ and feeling.19 Example: “While driv- a ‘Doberman,’ or, simply by its name, ing around town in his new, sleek, Writing Style ‘Chocolate?’”9 red car, Jack saw out of the corner Facts the advocate wants to emphasize The challenge of successful word of his eye a small girl run into the go at the beginning or end of a para- choice lies in finding restraint.10 street. He slammed on the brakes. graph.1 Consider several factors: The brakes failed. He pulled the Unfavorable facts can be de-empha- • The word’s meaning (denota- wheel and missed her by a hair.” By sized by placing them in the middle of tion).11 placing the words “new, sleek, red” the paragraph.2 Surrounding unfavor- • The word’s emotional associa- together, the reader is slowed down, able facts with favorable ones dimin- tion (connotation).12 and a sense of anticipation is created. ishes the negative impact of unfavor- • Degree of detail: Compare: “The The short second sentence conveys a able facts. This is known as the halo plaintiff, who is larger than the defen- sense of urgency and fear. The phrases effect. dant, moved toward him.” Versus: “slammed on the brakes” and “pulled Use short paragraphs with few “The plaintiff, who is 6’ 3” and weighs the wheel” speed up the rhythm as the details when factual emphasis is 210 pounds, strode toward the defen- action increases. important and long paragraphs with dant, who is 5’ 10” and weighs 160 Avoid legal jargon. An example of many details to de-emphasize facts.3 pounds.”13 The first sentence is less jargon is using grandiose words like Explain in greater detail favorable descriptive than the second. The sec- “grandiose.”20 Use plain, nonsyllab- facts than unfavorable ones.4 Place ond sentence will garner more sympa- ic English. Complicated, unfamiliar facts requiring emphasis at the begin- thy for the defendant. language confuses and decreases per- ning or end of short sentences.5 Notice • Repetition: Repeating words, suasiveness.21 Even the most complex in these examples how placing facts is phrases, and sentence and paragraph and abstract ideas must be stated sim- important: structures is an effective fact-writing ply and clearly.22 Neither persuasive Example: “Jack’s on parole, but he’s technique. Repetition, which can be briefs nor objective memorandums are a good father.” obvious or subtle, “creates a sense of effective “if the reader must pause at Example: “Jack’s a good father, but heightened drama, an increased for- every sentence to ponder its mean- 23 he’s on parole.” mality elevating the value of the con- ing.” According to Texas Justice tent repeated.”14 Brian Quinn, “the use of legalese or Word choice, like paragraph and • Order of words and phrases: ‘six-bit’ college words . . . . interferes sentence structure, affects how the Yoda said it. Cardozo wrote it. Unusual in your communication with the court reader interprets, analyzes, and under- are inversions. Placing words in unusu- when the judge is constantly shifting stands facts. Word choice “pervades al order draws attention.15 Begin a attention from the brief to either a all other literary elements: What we sentence with a word or phrase that Webster’s, Black’s Law, or a Latin-to- call something goes a long way toward normally comes at the end.16 Example: English dictionary.”24 what or how a reader will think of “Smiling widely, the children were Every memorandum must be that thing.”6 It’s also the most com- supervised by their parents as they checked repeatedly for spelling, gram- mon way that writers reveal their bias- picked a puppy.” Multiple introducto- mar, and punctuation errors. These es.7 Lawyers drafting objective fact ry phrases is another unusual order.17 sections should select words devoid Example: “When Jack walked into the Continued on Page 58
64 | October 2008 | NYSBA Journal Electronic copy available at: http://ssrn.com/abstract=1296744 The Legal Writer Continued from Page 64 Active voice: “According to the wit- Focus on the relevant points in the mistakes will affect your credibility. ness, Jack signed a contract to sell diagram to minimize distraction and Readers will question the contents of a guns to Jill for $5000.” confusion.49 brief or memorandum when the writer By stressing the actor, the active makes these mistakes.25 Reading a brief voice focuses on the subject of the Record Citations with spelling, grammar, and punctua- sentence.35 Characters become more Lawyers must cite every assertion of tion errors is like talking to someone sympathetic when they’re the subject fact to the record.50 The record is com- who is picking his nose.26 People will of the sentence.36 The active voice also posed of assorted documents, includ- assume that a brief with these errors highlights your adversary’s unfavor- ing transcripts, pleadings, affidavits, contains mistakes of fact.27 The reader able actions.37 Use the passive voice motions, prior decisions, and depo- will think that a writer who doesn’t when you want to decrease intensity38 sitions. Precise citations require cit- care about these types of errors will or remove focus from the actor39 or ing to the correct volume, page, and carelessly fudge the big stuff. when the actor is unknown or already paragraph number in the record. The Consider your commas, semicolons, known. reader shouldn’t have to, and prob- and periods. These devices can slow ably won’t, search through the record readers down or speed them up. Visual Aids to find documents referred to in the Avoid adverbs, adjectives, and all Visual aids are valuable tools for fact fact section. false, cowardly, or boring intensifiers. writing. The more complex the case, Tell the reader how you’ll cite the Use concrete nouns and, even better, the more visual aids will clarify and record. For example, at the begin- vigorous verbs. simplify. Choose the graphic that ning of the fact section, explain that
Reading a brief with spelling, grammar, and punctuation errors is like talking to someone who’s picking his nose.
Avoid embellishments like italics, emphasizes meaning best.40 Use a “Numerals in parentheses refer to underlining, or bold font.28 These map to show the relationship between pages (or folios) of record.”51 Citing techniques suggest that you want to cars at an intersection in a case about page 43 might look like this, according emphasize a fact or idea but don’t an automobile collision. Pictures and to the Bluebook: (R. at 43.). know how to do so.29 They also shout video footage tell the viewer what to For advocates preparing persuasive at the reader and say, “you’re stu- watch for.41 Charts, tables, and graphs briefs, record citations are a convincing pid.” Treat the reader like a smart, communicate complex facts and sta- tool.52 Just as omitting or misrepresent- busy professional. Express thoughts tistics. ing facts will diminish the advocate’s through content, not style. If a word Choosing the graphic to present the credibility, careful and precise cita- or phrase doesn’t stand out, delete all facts depends on what information the tions augment credibility.53 Whenever unnecessary information surrounding advocate is trying to provide.42 There doubt arises about whether a citation it, re-order the words to change the are several types: is necessary, err on the side of caution emphasis, or add detail.30 Eliminate • Pie chart: Compares various and include it.54 embellishments to sound confident.31 amounts that together comprise a If you’re uncertain whether you’ve Advocates are less direct and word- whole.43 accurately characterized a fact or ier with the passive voice.32 Use the • Bar graph: Compares changes idea, quote directly from the record.55 subject-verb-object formation — who over time in amounts that comprise a Quotations should be used to make a does what to whom.33 The active voice whole.44 point and to prove you’re not making engages the reader by emphasizing • Multi-bar graph: Compares things up.56 Some things are best and action and making sentences interest- relative quantities over time.45 most memorably said in a witness’s ing.34 • Table: Compares statistics. words. But too many quotations, or Single passive voice: “According to Tables can be read from left to right or lengthy quotations, will dilute the fact 46 the witness, a contract was signed top to bottom. Begin with informa- section, bore the reader, and damage 57 by Jack to sell guns to Jill for tion the reader knows. Move to infor- continuity. 47 $5000.” mation the reader needs. • Diagrams: These include maps, Show, Don’t Tell Double passive voice: “According to drawings, and blueprints. Make the In persuasive briefs, an effective fact the witness, a contract was signed diagram simple so that the reader can section persuades readers without let- to sell guns for $5000.” extract the maximum information.48 ting them know they’re being per-
58 | October 2008 | NYSBA Journal suaded. A good brief allows readers point headings in the table of con- your fact section. To improve your to believe they’ve reached the legal tents.63 Many judges will be familiar fact writing, focus on a few strategies conclusion without the writer’s help. with the relevant law and will analyze at a time rather than all of them at Persuasion is most effective when the the facts with that law in mind.64 If the once.73 Work on large-scale organiza- writer allows the reader to reach the brief discusses “whether a particular tional techniques like section structure conclusion.58 statute applies to your case, marshall and humanizing your client separately Example (reader reaches the con- the facts that support your point of from small-scale ones like sentence 74 clusion): “At the time and place view that the statute does or does not structure and word choice. specified in the complaint, the apply.”65 Focus on choosing and organizing defendant struck the plaintiff from the facts. Determine from your theme behind with a stick.”59 which ones require emphasis. Example (writer reaches the conclu- It’ll take several drafts to write an Show, don’t tell. 75 sion): “At the time and place speci- effective fact section. Edit constantly. fied in the complaint, the defen- Write “1 + 1,” but Even when you believe you’ve pro- dant committed a battery on the duced your final draft, set it aside for a 76 plaintiff.”60 don’t write “= 2.” while and re-read it. Have colleagues and friends evaluate it.77 The final State the facts, not what those facts product will be a fact section that will mean. Let readers determine the mean- Ethical Considerations enhance the entire document. ■ ing of the facts for themselves. To do Legal writers must uphold the ideals 1. Mary Barnard Ray & Barbara J. Cox, Beyond this, use the “show, don’t tell” tech- of good moral character, integrity, and the Basics: A Text for Advanced Legal Writing 172, nique. Thus, write “1 + 1,” but don’t professionalism.66 Never omit facts, 185 (2d ed. 2003). write “= 2.” Save the “= 2” for the misrepresent the lower court’s deci- 2. Id. 3. Id. argument section or conclusion. To sion, or use quotation marks with ref- 4. Id. “show” is to describe in concrete, non- erences to the record where no witness 5. Girvan Peck, Writing Persuasive Briefs 39–42, conclusory language. To “tell” is to had used the quoted words.67 Evading 46–49 (1984); Ray & Cox, supra note 1, at 172–74, 185. characterize and conclude. The writer the truth damages your credibility 6. Brian J. Foley & Ruth Anne Robbins, Fiction must “[l]et the facts themselves answer and the credibility of those associated 101: A Primer for Lawyers on How to Use Fiction 61 68 Writing Techniques to Write a Persuasive Fact Section, the question . . . .” with you. Judge Clyde H. Hamilton 32 Rutgers L.J. 459, 466 (2001). Be specific and precise. For exam- has explained that “[a] statement of 7. Ray & Cox, supra note 1, at 180. ple, “the baseball was thrown fast” is facts that omits relevant facts seriously 8. Id. imprecise. “The baseball was thrown at undermines the omitting party’s cred- 9. Foley & Robbins, supra note 6, at 466. 10. Ray & Cox, supra note 1, at 180; Peck, supra 95 miles an hour” enhances writing. ibility, leaving the . . . impression that note 5, at 46–49. Show: “When the Mets won the the party does not believe it can win if 11. Ray & Cox, supra note 1, at 180. 69 12. Id. World Series, Jack jumped up in the judge learns of the omitted facts.” Opposing counsel or the judge will 13. Id. at 181. the air, shed tears, and shouted, 14. Id. at 183. probably catch a misrepresentation of ‘I can’t believe they won! I can’t 15. Peck, supra note 5, at 46–49; Ray & Cox, supra 70 believe they won!’” the facts, no matter how small. Don’t note 1, at 179. 16. Ray & Cox, supra note 1, at 179. Tell: “Jack was excited when the think you’ll get away with it. Don’t overstate the facts. 17. Id. Mets won the World Series.” 18. Id. at 184. Understating always succeeds. 19. Id. Show: “The witness testified to X Overstatement and exaggeration 20. Lawrence T. D’Aloise, Jr. & Henry G. Miller, and later to Y.” always fail. 8 Mark Davies et al., N.Y. Prac. Series — N.Y. Civ. Prac. § 16:1 (2008). Impermissible tell: “Because of the State the facts clearly and honestly. 21. Id.; Charles R. Calleros, Legal Method and witness’s contradictions under Good brief and memorandum writers Writing 240 (5th ed. 2006); Mario Pittoni, Brief Writing and Argumentation 31 (3d ed. 1967); oath, the witness is incredible as a de-emphasize the irrelevant to stress D’Aloise & Miller, supra note 20, at § 16:1. matter of law.” what it is important. But to be ethi- 22. Calleros, supra note 21, at 240. cal, they write fairly and clearly.71 An 23. Id. Keep the Law in Mind 24. Brian Quinn, Dispelling Misconception, 62 Tex. advocate should “[a]im for a fact state- B.J. 890, 891 (1999) (quoted in Calleros, supra note Craft the fact section to fit the law that ment the court could use in its opinion 21, at 240–41). will be presented in the brief’s argu- if it finds in your favor.”72 25. Richard K. Neumann, Jr., Legal Reasoning and Legal Writing 237 (5th ed. 2005). 62 ment section. Before reading the fact 26. John Gardner, The Art of Fiction: Notes on section, the reader will already have Conclusion Craft for Young Writers 99 (1984) (cited in Neumann, been introduced to the legal issues It’s daunting to incorporate the many supra note 25, at 237). from the questions presented and the effective brief-writing devices into Continued on Page 61
NYSBA Journal | October 2008 | 59 The Legal Writer Continued from Page 59
27. Neumann, supra note 25, at 237. 28. Pittoni, supra note 21, at 32. NEW YORK STATE BAR ASSOCIATION 29. Peck, supra note 5, at 182–84 (1984); Ray & Cox, supra note 1, at 179–84. 30. Ray & Cox, supra note 1, at 170. 31. Jonathan K. Van Patten, Twenty-Five Propositions on Writing and Persuasion, 49 S.D. L. Rev. 250, 269 (2003–04). 32. Id. at 269–70. 33. Id. at 270. 34. Ray & Cox, supra note 1, at 174; Van Patten, supra note 31, at 270. 35. Ray & Cox, supra note 1, at 174. 36. Id. 37. Van Patten, supra note 31, at 270. 38. Id. 39. Ray & Cox, supra note 1, at 157. 40. Id. 41. Id. at 157–58. 42. Id. at 158. 43. Id. 44. Id. at 159. 45. Id. 46. Id. at 160–61. 47. Id. 48. Id. at 161–62. 49. Id. 50. Pittoni, supra note 21, at 31. 51. Id. 52. Carole C. Berry, Effective Appellate Advocacy: Brief Writing and Oral Argument 91 (2d ed. 1999). 53. Id. 54. Id. 55. Id. 56. D’Aloise & Miller, supra note 20, at § 16:5. 57. Id. 58. Id. 59. Neumann, supra note 25, at 205. 60. Id. 61. D’Aloise & Miller, supra note 20, at § 16:5. 62. Id. 63. Van Patten, supra note 31, at 273. 64. Wesley Gilmer, Jr., Legal Research, Writing & Advocacy 183 (2d ed. 1987). 65. D’Aloise & Miller, supra note 20, at § 16:5. 66. Gerald Lebovits, Legal-Writing Ethics — Part II, 78 N.Y. St. B.J. 64, 64 (Nov./Dec. 2005). 67. Elizabeth Ahlgren Francies, The Elements of Renew today for 2009. Ordered Opinion Writing, 38 Judges’ J. 8, 8 (1999); Ray & Cox, supra note 1, at 169; Gerald Lebovits, Thank you for your membership support Legal-Writing Ethics — Part I, 77 N.Y. St. B.J. 64, 52–53 (Oct. 2005). 68. Ray & Cox, supra note 1, at 169. 69. Clyde H. Hamilton, Effective Appellate Brief Writing, 50 S.C. L. Rev. 581, 585 (1999). 70. Ray & Cox, supra note 1, at 169. 71. Wendy B. Davis, An Attorney’s Ethical Obligations Include Clear Writing, 72 N.Y. St. B.J. 50 (Jan. 2000); Lebovits, supra note 66, at 64. 72. Ray & Cox, supra note 1, at 169. 73. Id. at 186. 74. Id. 75. Pittoni, supra note 21, at 32; D’Aloise & Miller, supra note 20, at § 16:7. 76. D’Aloise & Miller, supra note 20, at § 16:7. 77. Id.
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