March-April 2010.Indd

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

BESTSELLERS NEW YORK STATE BAR ASSOCIATION FROM THE NYSBA BOOKSTORE Journal February 2010 BOARD OF EDITORS EDITOR-IN-CHIEF David C. Wilkes Debt Collection and the Enforcement of NEW! Tarrytown Money Judgments, Second Edition (2008) e-mail: [email protected] Attorney Escrow Accounts – Rules, Monetary awards determined in court cases involve an Mary Grace Conneely array of procedures that attorneys must know. The new Regulations and Related Topics, Monticello second edition, under the editorship of Paul A. Peters, 3rd Edition Philip H. Dixon This new edition provides useful guidance on Esq., not only updates case and statutory law but also Albany escrow funds and agreements, IOLA accounts addresses new issues within this field, providing in-depth Elissa D. Hecker and the Lawyers’ Fund for Client Protection. The Irvington topical analyses. greatly expanded appendix features statutes, Jonathan Lippman PN: 40308 / Member $125 / List $170 / 548 pages regulations and forms. New York City PN: 40269 / Member $45 / List $55 / 330 pages Eileen D. Millett Foundation Evidence, Questions and New York City Best Practices in Legal Courtroom Protocols, Second Edition Gary A. Munneke Management White Plains (2009) The most complete and exhaustive treatment of Thomas E. Myers The second edition, along with its collection of the business aspects of running a law firm avail- Syracuse forms and protocols, has four new chapters: Pro Se able anywhere. John B. Nesbitt Defendants, Courtroom Closure, Burdens of Proof and PN: 4131 / Member $139 / List $179 / 498 pages Lyons Summations. Gary D. Spivey Colorado Springs, Colorado PN: 41078 / Member $50 / List $60 / 172 pages Consumer Bankruptcy, 2nd Edition This new edition covers consumer bankruptcy Sharon L. Wick from both debtor and creditor perspectives. It Buffalo Medical Malpractice in New York, provides official and procedural forms, as well as MANAGING EDITOR Third Edition the local bankruptcy rules for New York’s federal Daniel J. McMahon This book provides advanced insight into many districts. Albany e-mail: [email protected] aspects of the trial of a medical malpractice case. PN: 40456 / Member $125 / List $170 / 770 PN: 41309 / Member $95 / List $125 / 654 pages pages ASSOCIATE EDITORS Bran Noonan New York Lawyer’s Deskbook New York City and Formbook (2009–2010) Model Partnership Agreements (2009) Philip C. Weis Award-winning and packed with new information Here is a guide for solo and small-firm practitioners Oceanside who wish to establish a partnership or other business and forms for use in over 25 practice areas. form, or to formalize relationships in a law practice Deskbook PN: 4150 / Member $295 / List $375 Formbook PN: 4155 / Member $295 / List $375 PUBLISHER that has no formal structure. Patricia K. Bucklin PN: 41358 / Member $50 / List $60 / 142 pages New York Practice Monograph Executive Director Series 2009–2010 New York Residential Landlord-Tenant This 16-book set comprises chapters excerpted NYSBA PRODUCTION STAFF from the 2009-2010 edition of the New York Law and Procedure (2009–2010) ASSISTANT EDITOR Covers the fundamentals of residential landlord-tenant law Lawyer’s Deskbook and Formbook. It is an invalu- Joan Fucillo and offers a guide to the procedural mechanics practitio- able reference for practitioners who work in or are new to these areas. DESIGN ners face in landlord-tenant disputes. Greatly expanded for Lori Herzing 2009–2010, with numerous samples of judicial forms. PN: 4009GP / Member $400 / List $500 Erin Corcoran PN: 41699 / Member $72 / List $80 / 366 pages NYSBA Practice Forms on EDITORIAL OFFICES CD-ROM 2009–2010 One Elk Street The Plaintiff’s Personal Injury Action in More than 600 of the forms from Deskbook and Albany, NY 12207 New York State Formbook used by experienced practitioners in (518) 463-3200 FAX (518) 463-8844 This treatise answers the tough questions faced by their daily practice. The advanced installation program allows forms to be used in Adobe Acrobat® www.nysba.org the plaintiff’s personal injury attorney every day – Reader,™ Microsoft Word® or WordPerfect.® liens, special needs trusts, structures, Medicare and PN: 615010/ 2009-2010 / Member $280 / ADVERTISING REPRESENTATIVE Medicaid, conflicts of interest, workers’ compensation, List $315 Network Media Partners no-fault, bankruptcy, representing a party in infancy, Bruce Tackett incompetency and wrongful death. Executive Plaza 1, Suite 900 PN: 4181 / Member $175 / List $225 / 1,734 pages 11350 McCormick Road Hunt Valley, MD 21031 (410) 584-1960 e-mail: [email protected]

EUGENE C. GERHART (1912 – 2007) Expand your professional knowledge Editor-in-Chief, 1961–1998

1.800.582.2452 www.nysba.org/pubs Mention Code: PUB0716

THE OPPORTUNITY TO BE PART OF THE WORLD Legal Cases for 10 Gender Equality by Karen DeCrow

DEPARTMENTS 5 President’s Message 24 2009 New York State Legislative Session 8 CLE Seminar Schedule Changes Affecting Trust and Estate Law 20 Burden of Proof by JOSHUA S. RUBENSTEIN by David Paul Horowitz The Rise and Fall of 44 Metes & Bounds 28 by Michael Rikon Martin Thomas Manton 48 Attorney Professionalism Forum by MARVIN V. A USUBEL 49 Presentation Skills for Lawyers by Elliott Wilcox 34 Peer Review An Alternative Dispute Resolution Process 50 Empire State Counsel to Dentistry Malpractice Claims 56 Language Tips by JODY ERDFARB, JEFFREY GALLER AND JUDITH SHUB by Gertrude Block 58 Index to Advertisers 40 New York State Consumer Protection 58 Classified Notices Law and Class Actions in 2009: Part I 63 2009–2010 Officers by THOMAS A. DICKERSON 64 The Legal Writer by Gerald Lebovits New Members Welcomed – please visit www.nysba.org/welcomemembers Cartoons © CartoonResource.com

The Journal welcomes articles from members of the legal profession on subjects of interest to New York State lawyers. Views expressed in articles or letters published are the authors’ only and are not to be attributed to the Journal, its editors or the Association unless expressly so stated. Authors are responsible for the correctness of all citations and quotations. Contact the editor-in-chief or managing editor for submission guidelines. Material accepted by the Association may be published or made available through print, film, electronically and/or other media. Copyright © 2010 by the New York State Bar Association. The Journal ((ISSN 1529-3769 (print), ISSN 1934-2020 (online)), official publication of the New York State Bar Association, One Elk Street, Albany, NY 12207, is issued nine times each year, as follows: January, February, March/April, May, June, July/ August, September, October, November/December. Single copies $20. Periodical postage paid at Albany, NY and additional mailing offices. POSTMASTER: Send address changes per USPS edict to: One Elk Street, Albany, NY 12207.

NYSBA Journal | March/April 2010 | 3

PRESIDENT’S MESSAGE MICHAEL E. GETNICK

Membership Challenge 2010: The Not-So-Impossible Dream

rom our bank accounts to our despite a historic downturn in the 401ks to our business ledgers, economy that has negatively impacted Fwe’ve all been watching the bot- the legal profession, speaks volumes tom line for quite some time now, out about the tremendous value that mem- of concern for what the numbers will bership in the State Bar provides. show. The situation is no different at the State Bar. We’ve been closely Annual Meeting Is a Success! watching our investments, tracking The challenges associated with mov- our expenses, and working hard to do ing Annual Meeting to a new location, more with less. When I took the oath of coupled with the down economy, were office last June, I pledged to maintain among our concerns as we planned There were so many phenomenal the first-class level of services that our the State Bar’s 133rd Annual Meeting. moments during Annual Meeting members have come to depend upon, Fortunately, I am pleased to report week, and it is impossible to share as well as focus on the relevant, practi- that our Annual Meeting, which was them all, but here are some highlights: cal programs and initiatives that our attended by about 5,000 people who We were honored that Court of members need during these difficult collectively registered for more than Appeals Chief Judge Jonathan Lippman economic times. I am proud to report 10,000 events, was a tremendous suc- joined us at many events, includ- that, due in large part to these efforts, cess. Nearly 1,100 attended the Tax ing our House of Delegates meeting, we are seeing evidence of sustained Section luncheon – what I am told where he spoke passionately about membership growth. is the largest gathering of tax attor- the Judiciary’s budget request, which In 2007, then-President Kate neys in the nation. Notably, the event includes a desperately needed $15 mil- Madigan issued an ambitious featured Internal Revenue Service lion appropriation for civil legal servic- Membership Challenge, with the goal Commissioner Douglas Shulman, who es and funds for the long-overdue judi- of increasing State Bar membership by chose our venue to make the signifi- cial pay increase. As President-elect 5% and section membership by 10% by cant announcement that the IRS would Steve Younger stated, our Executive 2010. It is Kate’s foresight and leader- begin requiring large corporations to Committee voted unanimously to ship that put us on track to achieve the disclose on their tax returns that they stand side by side with the Judiciary in sustained growth we are seeing today. are taking tax breaks that could be support of its budget request. We are Let’s look at the numbers. For a viewed as unacceptable to the IRS. issuing a call to arms, asking each and sixth year in a row, our membership Clearly, if you are a tax attorney, our every member to write their legisla- has increased. We now have more than Annual Meeting was the place to be. tors urging that the Judiciary’s budget 77,000 members, an increase of more Other successful section events request be approved. The Judiciary than 1.5% over the last year. Moreover, included the Trusts and Estates Law needs the support of the Bar. The since 2008, 18 sections have increased Section meeting, attended by nearly annual caseload of the courts is at an their ranks, and 14 of our sections 500 people, and the Real Property Law all-time high, exceeding 4.7 million have experienced growth ranging from Section meeting, attended by more than filings for the first time. Further, it is 2.7% to 18.5%. This increase is due to 300 people. And more than 550 attend- expected that the economic downturn a sustained commitment from State ed the Presidential Summit, which fea- will continue to bring additional cases Bar leaders and staff to membership tured expert panels on two important to the courts. If the Judiciary does not recruitment and retention, high-quali- and relevant topics – social media and receive the funding requested in its ty and relevant continuing legal educa- wrongful convictions. If you missed budget, it will be forced to reduce its tion programs, and new and expanded this standing-room-only program, you resources to assist lawyers during the can view the webcast at www.nysba. current fiscal crisis. The fact that our org/2010SummitWebcastArchive. Michael E. Getnick can be reached at membership has grown this past year, [email protected].

NYSBA Journal | March/April 2010 | 5 PRESIDENT’S MESSAGE workforce, potentially through layoffs, In 1935, on the advice of his soon- a person who throughout his life has at a time when the courts’ workload is to-be father-in-law, Mr. Gillespie gave moved forward. More important, he increasing. Undoubtedly, this would up a shot at being an Olympic skier has moved our profession forward. It jeopardize the fair and swift adminis- to attend Harvard Law School. His was my tremendous honor to recog- tration of justice. Again, I urge you to achievements as a lawyer are many, nize him with our Gold Medal. write your legislators in support of the but he is most well known for his role In introducing Mr. Gillespie, I stated Judiciary’s budget. in the United States Supreme Court that the best introduction I could give Another highlight of Annual landmark case of Erie v. Tompkins, and was to say that most achievements Meeting week was a luncheon honor- as the lawyer who backpacked into thought to be impossible are accom- ing our fourth Empire State Counsel the Grand Canyon’s Inner Gorge in plished by somebody who did not know class, consisting of more than 1,400 130-degree heat to collect a crucial they were impossible. This brings me attorneys who provided more than a piece of evidence from an airline crash. full circle, to where I began. When Kate quarter million hours of pro bono ser- As State Bar president, he brought 347 introduced the Membership Challenge, vices for the poor. All designees had to young lawyers to Washington D.C. there were many who thought it impos- provide at least 50 hours of pro bono to be admitted to the United States sible. And that was before the reces- service in 2009, but many went above Supreme Court, and he took time – sion led to significant layoffs within and beyond by donating anywhere from 8 a.m. to 3 a.m. the following day – the legal profession. But the impor- from 800 to 2,400 hours of free legal to personally meet each and every one tant thing is that, despite adversity, services to the poor. of them. And, he introduced the con- we have continued to move forward, For me, the most memorable cept of traveling across New York to listening and responding to our mem- moment was presenting Hazard foster relationships with local bar asso- bers’ needs, ensuring that we remain Gillespie, who served as president of ciations and to build the State Bar’s relevant to our profession, in both the the State Bar from 1958–1959, with the membership. As membership chair, he good and bad times. If you have not yet Association’s highest honor, the Gold helped raise membership from 11,000 renewed your membership for 2010, Medal. At 99, Mr. Gillespie has been to 15,000 – a 36% increase! I urge you to do so now. Lend your a member of the State Bar for nearly Many people judge someone’s voice to the largest voluntary state bar 60 years. He is senior counsel at Davis career or life’s work as to whether in the nation; lend your expertise to our Polk & Wardwell, where after more they were to the left or to the right. important work on behalf of the legal than 75 years he still comes to the office But, those people are looking in the profession. As a 40-year member of this every day, devoting his time to pro wrong direction. Instead, they should great Association, I can assure you that bono service. be looking forward like Mr. Gillespie, membership is a solid investment. ■

There are millions of reasons to do Pro Bono. (Here are some.)

Each year in communities across New York State, indigent people face literally millions of civil legal matters without assistance. Women seek protection from an abusive spouse. Children are denied public benefits. Families lose their homes. All without benefit of legal counsel. They need your help. If every attorney volunteered at least 20 hours a year and made a financial contribution to a legal aid or pro bono program, we could make a difference. Please give your time and share your talent. Call the New York State Bar Association today at 518-487-5640 or go to www.nysba.org/probono to learn about pro bono opportunities.

6 | March/April 2010 | NYSBA Journal

NYSBACLE Tentative Schedule of Spring Programs (Subject to Change)

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

Bridging the Gap Spring 2010 Public Sector Law (two-day program) April 28 New York City March 24–25 New York City May 20 Albany The Examination Before Trial – Honing Your Women on the Move Deposition Skills in Tort and Personal Injury April 29 Albany Cases +Ethics and Professionalism (Video Replay) April 7 New York City April 30 Canton April 9 Latham April 23 Syracuse Immigration Law April 30 Buffalo; Long Island (two-day program) Health Law Fundamentals May 4–5 New York City April 9 New York City DWI on Trial April 16 Albany (one-and-a-half-day program) Introductory Lessons on Ethics and May 6–7 New York City Civility for 2010 (9:00 am – 1:00 pm) Practical Skills: Basic Torts April 9 Rochester May 6 Albany; Buffalo; Long Island; April 16 Buffalo; New York City Westchester April 23 Albany; Long Island May 7 New York City; Syracuse Practical Skills: Family Court Practice Estate Planning After Divorce April 13 Albany; May 6 Syracuse New York City; Rochester; May 7 Westchester Westchester May 26 Long Island April 14 Buffalo; Long Island; Syracuse June 2 Albany; Buffalo June 9 New York City; Rochester +The Nuts and Bolts of Arbitrating Individual Employment Claims (Webcast) Long Term Care April 16 Albany May 7 Buffalo May 14 New York City Practicing Matrimonial and Family Law in May 21 Albany Chaotic Times – Part Two (9:00 am – 1:00 pm) Tenant Screening and the Correction of Records April 16 Long Island (9:30 am – 11:30 am) April 23 Westchester May 11 New York City May 14 New York City Fraudulent Practices in Real Estate May 21 Rochester June 18 Albany May 13 New York City +14th Annual New York State and City Tax Fraudulent Practices in Real Estate Institute May 13 New York City April 22 New York City June 8 Albany Practical Skills: Mortgage Foreclosures and Workouts April 22 Albany; New York City; Rochester April 27 Buffalo; Long Island; Syracuse April 29 Westchester

† Does not qualify as a basic level course and, therefore, cannot be used by newly admitted attorneys for New York MCLE credit. NYSBA’s CLE Online ONLINE | iPod | MP3 PLAYER

Bringing CLE to you... anywhere, anytime. Starting Your Own Practice May 21 New York City All online programs available in People’s Law School Tenant Screening and MP3 format to download to your the Correction of Records (6:00 pm – 8:00 pm) iPod or other MP3 player May 24 New York City NYSBA is proud to present the most flexible, Avoiding Ethical Pitfalls for Solo and Small Firm Practitioners “on demand” CLE solutions you could ask for. (5:30 pm – 8:30 pm) With CLE Online, you can now get the valuable May 25 New York City professional learning you’re after Advanced Document Drafting for the Elder ...at your convenience. Law Practitioner June 2 Westchester > Get the best NY-specific content from the June 3 New York City; Syracuse state’s #1 CLE provider. June 8 Long Island > Take “Cyber Portable” courses from your June 10 Buffalo June 11 Albany laptop, at home or at work, via the Internet. Ethics and Professionalism > Download CLE Online programs to your iPod or MP3 player. (9:00 am – 12:35 pm) June 4 Rochester > Everything you need to obtain full MCLE June 7 Westchester credit is included online! June 9 New York City June 10 Long Island; Syracuse June 17 Albany TBD Buffalo; Ithaca Representing a Political Candidate (9:00 am – 1:00 pm) June 18 Westchester June 22 Albany June 23 Buffalo; Long Island June 24 New York City; Syracuse 2010 Insurance Coverage Update Come click for CLE credit at: June 18 Albany; Long Island; www.nysbaCLEonline.com Syracuse June 25 Buffalo; New York City Features Electronic Notetaking allows you to take notes while listen- To register ing to your course, cut-and-paste from the texts and access notes later – (on any computer with Internet access). or for more information call toll free 1-800-582-2452 Audio Seminars complement the onscreen course texts. You control the pace, and you can “bookmark” the audio In Albany and surrounding areas dial (518) 463-3724 at any point. Or fax your request to (518) 487-5618 Bookmarking lets you stop your course at any point, then www.nysba.org/CLE pick up right where you left off – days, even weeks later. (Note: As a NYSBA member, you’ll receive MCLE Credit can be obtained easily once you’ve completed a substantial discount) the course – the form is part of the program! Just fill it out and mail it in for your MCLE certificate.

KAREN DECROW thanks her law clerk, Robert S. Webb III, a second- year student at the Syracuse University College of Law, for his editorial assistance in the preparation of this article. She also thanks Robert Seidenberg, M.D., with whom she explored and shared the ideas included in this article, for his insights. Ms. DeCrow’s bio is on page 19.

The Opportunity to Be Part of the World Legal Cases for Gender Equality By Karen DeCrow

Introduction to and in the home. If feminism has accomplished one In recent decades sex discrimination has emerged as a goal, it is to liberate women from that stereotype. Or, prominent area of legal practice. Law schools teach cours- as the late Bella Abzug, member of Congress, put it, “a es on the subject, law firms have departments devoted to woman’s place is in the house, and in the senate.” the practice, and law journals publish articles that illumi- nate the topic. Marriage Gender roles are arbitrary and capricious. Sex role ste- For many of us, the stereotype is still too close. It is reotypes have no place in society and certainly no legiti- less than 40 years since the Supreme Judicial Court mate place in our laws. The goal should be the eventual of Massachusetts decided Green v. Commissioner of blurring of gender roles. Corporations and Taxation.1 In Green, the court held that As attorneys we must each take a deep breath and income received by Mrs. Green while she lived in New put aside what we were taught as children, that males Hampshire was subject to Massachusetts tax by virtue of and females are different and their roles cannot be inter- the established common law rule “that a wife’s domicile, changeable in work or in play. Humans do differ greatly, absent some marital wrong committed by her husband, one from the other, but not on the basis of sex. follows that of her husband.”2 For centuries the main stereotype has been that men A few years earlier, in Meeker v. Meeker,3 a wife was rule the world outside the home and that women belong forced to file for divorce in Pennsylvania, a state where

NYSBA Journal | March/April 2010 | 11 she did not live, because that is where her husband lived There were weight requirements. They had to be single. at the time. The Supreme Court of New Jersey held that Married women were excluded. And, they were sup- the Meekers could not file for divorce in New Jersey posed to be beautiful. because, although the wife lived there (and both had The job description sounded more like that of a film lived there at the time of their marriage), the husband star rather than a person in charge of the safety of pas- now lived in Pennsylvania. sengers. In Diaz v. Pan American World Airlines, Inc.,11 In 1964, in Schneider v. Rusk, the U.S. Supreme Court expert witnesses testified that the job was, of necessity, upheld a statute that provided that although an American held by women. male did not suffer loss of citizenship during his marriage Pam Am sought . . . to explain in psychological terms to a foreign citizen, an American woman did.4 . . . [why] most airline passengers of both sexes prefer These decisions reflected a centuries-old tradition to be served by female stewardesses. . . . Th[e] envi- that determined not only the legal, but the social and ronment, said Dr. Berne [their expert], creates three economic conditions of marriage. Women were gener- typical passenger emotional states with which the air ally considered the property of their husbands. And, of carrier must deal; first and most important, a sense of course, one can move property at will. apprehension; second, a sense of boredom; and third, a feeling of excitement. Dr. Berne expressed the opin- Jury Duty ion that female stewardesses, because of the nature of their psychological relationship as females to persons In 1961, in Hoyt v. Florida,5 the U.S. Supreme Court ruled: of both sexes, would be better able to deal with each of Despite the enlightened emancipation of women from these psychological states. . . . He explained that many the restrictions and protections of bygone years, and male passengers would subconsciously resent a male their entry into many parts of community life for- flight attendant perceived as more masculine than merly considered to be reserved to men, woman is they, but respond negatively to a male flight attendant still regarded as the center of home and family life. perceived as less masculine, whereas male passengers We cannot say that it is constitutionally impermissible would generally feel themselves more masculine and for a State, acting in pursuit of the general welfare, to thus more at ease in the presence of a young female conclude that a woman should be relieved from the flight attendant. He further explained that female pas- civil duty of jury service unless she herself determines sengers might consider personal overtures by male that such service is consistent with her own special attendants as intrusive and inappropriate, while at the responsibilities.6 same time welcoming the attentions and conversations of another woman. He concluded that there are sound 7 In 1970, in DeKosenko v. Brandt, the plaintiff attempted psychological reasons for the general preference of air- to overturn N.Y. Judiciary Law § 599(7), which permitted line passengers for female flight attendants.12 women to claim exemption from jury duty because of their gender. The judge held: Flight attendants had to be under the age of 32. This Her lament should be addressed to the “Nineteenth was supposedly because most airline passengers were Amendment State of Womanhood” which prefers clean- businessmen who presumably liked being waited on by ing and cooking, rearing of children and television soap young women. This requirement had no rationale – the operas, bridge and canasta, the beauty parlor and shop- flight attendant was not there to be a date, she was there ping, to becoming embroiled in plaintiff’s problems.8 to save your life, when necessary. Hoyt was overruled in 1975 by Taylor v. Louisiana,9 Eleven years after Diaz, Wilson v. Southwest Airlines13 when the Supreme Court held that the systematic exemp- established the job description for the job of flight attention of women from juries constituted a violation of a dant. It is not to make male passengers feel more mascu- rape defendant’s Sixth Amendment right to a jury repre- line (whatever that might mean). It is to help ensure the sentative of the community. safety of passengers. In 1979, in Duren v. Missouri,10 the Court nullified the Wilson concerned a group of men who wanted to be option for women to decline jury duty because no such flight attendants for Southwest Airlines. They filed a class option was available to men. action suit against the company for hiring only women as flight attendants. Southwest defended its policy by stat- Employment: In the Sky ing that “female sex appeal” was a vital part of the cor- The occupation of flight attendant used to have glam- porate image. (Southwest’s brand was the “love” airline.) orous connotations. The “stewardess” got to travel the The court held that what is essential is whether men are world. For a young person brought up in a small town equally able to perform the tasks needed for the “essence” or on a farm this was a dream come true. There was no of the airline’s business – the safe transportation of pas- shortage of applicants for every opening. sengers. Thus, the finding was that Southwest’s policy The job was open to women only, and whites only. No was illegal. The men won their case. person of color need apply. Candidates had to be slim. Continued on Page 14

12 | March/April 2010 | NYSBA Journal

Continued from Page 12 Ms. Weeks charged that the telephone company would not consider her for the job of switchman purely on the Other challenges involved pregnant flight attendants basis of her sex. The court found that the company vio- who did not choose to be grounded. Eventually, they were lated the Civil Rights Act when it refused to consider a allowed to decide when to stop flying, after consulting female employee’s application since the employer had their physicians; corporate headquarters could not make failed to meet the burden of proving that sex is a bona the determination. Another challenge was to the strict fide occupational qualification and that females would be weight requirements. When the job of flight attendant unable to be safe and efficient switchmen. In other words, was still equated with that of model or movie star, the Southern Bell could not prove that females would be women had to be stick thin. In Europe, however, I noted unable to work as safe and efficient switchmen. that the flight attendants were not Southern Bell’s contention that emergency necessarily thin, and not nec- work could require Lorena Weeks to use essarily glamorous. This gave heavy equipment or be subject to late- me the courage to attack the hour call-outs was a speculative smoke requirements as ridiculous. Another screen for discrimination. Decades later, I saw the news In 1969 the Equal Employment footage of the jet that had crash challenge was Opportunity Commission (EEOC) landed into the Hudson River (the federal administrative agen- after an unnerving encounter to the strict cy which is charged with enforc- with a flock of birds. The pilot, ing the Civil Rights law) held Capt. Chesley Sullenberger III, weight that state protective laws have was the hero, no doubt. But stand- ceased to be relevant to our ing with him were the flight atten- requirements. technology or to the expand- dants who had risked their lives to ing role of the female in our guide each passenger to safety. It economy. Because such laws was obvious that these were seasoned tend to discriminate rather employees who had taken advantage of than protect, the Commission seniority to work a desired flight. They were definitely will not regard them as a defense to a Title VII charge.15 middle-aged women. Their experience saved lives! Performing tough, even unpleasant, work is worth the candle if it pays enough. As the court wrote: “Title VII rejects Employment: Unromantic, but Well Paying just this type of romantic paternalism as unduly Victorian It’s a very hot summer day. I sit in my air-conditioned car, and instead vests individual women with the power to waiting at a road stop. Repair work is being done, and we decide whether or not to take on unromantic tasks.”16 are down to one lane. Finally a worker in the crew waves us along. I note that the person is female. She is sunburnt Motherhood: Women, Children – and Fathers and hot. This is hard work. Irony abounds on the subject of motherhood. On the one I watch her and think about several cases I have hand, a young girl is taught from the time she is a toddler, brought to admit women into various highway depart- and a baby doll is placed in her arms, that the highest call- ments. Should I feel guilty? I say to her, “You could be in ing is that of a “mother.” Young boys are not taught that a nice air-conditioned office.” their highest calling is that of father. If you doubt this, “Right,” she says. “Making one-quarter of what I am give a baby doll as a gift to a boy. Note the reaction of the earning now!” Res ipsa loquitur. parents. Perhaps panic. Men have always had the right to determine whether Once a woman has her first child, her situation as an the incremental increase in remuneration for strenu- employee changes dramatically. Employment handbooks ous, dangerous, obnoxious, boring or unromantic include the right to parental leave. (This is often called tasks is worth the candle. The promise of Title VII is maternity leave.) But the subtle impression of a woman that women are now to be on equal footing.14 who has a baby is that she will not be as devoted to the Lorena Weeks won the right to be a switchman at job. Her career path may be littered with road blocks. She Southern Bell Telephone Company. Her case used Title may be kept out of the loop or not given access to assign- VII of the Civil Rights Act of 1964 to overturn a “pro- ments with the prime clients or customers. tective” law that prohibited women from lifting more Here is what the U.S. Supreme Court held in 1908, in than 30 pounds on the job. Most cases designed to bring Muller v. Oregon.17 It was the law of the Court and the law women into the work force in jobs that require difficult of the land until 1971: physical labor are based on Weeks. It is the key case on That woman’s physical structure and the performance bona fide occupational qualification. of maternal functions place her at a disadvantage in

14 | March/April 2010 | NYSBA Journal the struggle for subsistence is obvious. This is espe- Case Files cially true when the burdens of motherhood are upon I have been involved in a large number of women’s rights her. Even when they are not by abundant testimony of cases. Here are two that are particularly close to me. the medical fraternity, continuance for a long time on her feet at work, repeating this from day to day, tends to have injurious effects upon the body, and as healthy The Environment: Boys AND Girls Are Welcome mothers are essential to rigorous offspring, the physi- That the operation of Camp Rushford for boys only, cal well-being of woman becomes an object of public under the direction of the New York State Department interest and care in order to preserve the strength and of Environmental Conservation, be terminated as soon vigor of the race.18 as the funds are available to make it co-educational: for Thus, the Supreme Court classified women as moth- the 1981 camping season, if possible, and if not, for the ers – or potential mothers. What was at stake here was 1982 camping season.25 nothing less than the future of the human species. Muller and . . . continues: [t]hat the New York State Division of the Budget be Still again, history discloses the fact that woman have directed to provide sufficient funds to convert Camp always been dependent upon man. He established his Rushford from a boys only camp to one providing control at the outset by superior physical strength, facilities for both boys and girls. and this control in various forms, with diminishing Thus ordered the Hon. John O’C. Conway, Supreme intensity, has continued to the present. . . . Though Court of the State of New York, on March 9, 1981. limitations upon personal and contractual rights may This saga incorporated every sex role stereotype be removed by legislation, there is that in her disposi- imaginable and included not only much sound and tion and habits of life which will operate against a full fury, but also considerable humor. It started when I was assertion of those rights. She will still be where some approached by Lorca Sheppard, a 12-year-old student, and legislation to protect her seems necessary to secure a her father. Lorca, who was named after the Spanish poet, real equality of rights.19 Federico Garcia Lorca, had seen a brochure advertising Limitations on personal and contractual rights of the state-run Rushford Environmental Education Camp women are necessary. for Boys, in Allegany County. She wanted to attend, but Differentiated by these matters from the other sex, she was excluded because she was female. Advertisements is properly placed in a class by herself, and legislation described the camp as open to boys aged 12 to 14 years designed for her protection may be sustained, even old from Central and Western New York. when like legislation is not necessary for men and “I didn’t think it was fair,” she said. “It’s a state camp. could not be sustained. It is impossible to close one’s Everybody should be able to go to it.”26 eyes to the fact that she still looks to her brother and At the time Lorca was in seventh grade at the depends on him . . . that her physical structure and Jamesville-Dewitt Middle School. She told journalist proper discharge of her maternal functions – having Robert W. Andrews that her participation in the lawsuit in view not merely her own health, but the well-being grew out of a general conviction that women are too often of the race – justify legislation to protect her from the at an unnecessary disadvantage in American society. She greed as well as the passion of man.20 stated, “I think things should not lean so much towards The Muller language has been cited in excluding one portion of the population . . . , towards men.”27 women from juries,21 in allowing different treatment for She cited politics and the police force as examples. men and women in licensing occupations,22 and in keep- “I notice there aren’t many women in elected positions. ing women out of state-supported colleges.23 And there are not many women police on patrols. There Finally, in 1971, the U.S. Supreme Court untied the should be,” she said.28 Even at her own school, she noted, tight knot between women and children. In Phillips v. the boys soccer team gets to play more games with other Martin Marietta Corp.,24 the Court ruled that it is contrary schools than the girls do. Lorca also said that most of her to Title VII of the Civil Rights Act of 1964 for a company friends at school shared the same convictions she had to refuse to hire a woman because she has pre-school-aged about women’s rights. children when it does not refuse to hire men who have I’d known Lorca for some time. When she was six – pre-school-aged children. This is the first Title VII case and I was the National President of NOW – she par- to go to the Supreme Court. This is the beginning of the ticipated in a protest, sponsored by NOW, against the acknowledgment of fatherhood (men also are parents). Miss America Pageant in Atlantic City, New Jersey. We Unfortunately, it is still the case that until and unless were conducting a mock beauty pageant, and I dressed the care of children, and the housekeeping tasks, are as Wonder Woman and Lorca dressed as Little Wonder accepted as responsibilities for women and men – success Woman. A photograph of the two “Wonder Women” was on the job will be for unmarried women, superwomen, published in People magazine. and exhausted women only.

NYSBA Journal | March/April 2010 | 15 So, we began the legal fight. First, the argument was, Social Club, or a Part of Doing Business? where would the campers sleep? Girls can’t be sleeping For many decades women were excluded from service in the same bunk as the boys, we were told. We made clubs, a major part in the business life of any city, large or several suggestions: Since there were four sessions (each small. In Minnesota, the Minneapolis and St. Paul chap- two weeks long), they could alternate sessions for the ters of the Jaycees challenged the national organization’s boys and the girls. Or, they could divide the facilities into male-only policy by admitting women as full members. a boy’s section and a girl’s section, and they could go to The national organization penalized the chapters; the camp together. chapters filed discrimination claims. The national Jaycees The next major argument was over bathroom and claimed that as a private club it had a First Amendment shower facilities. Were we suggesting that boys and girls right to exclude women, and that the Minnesota law pro- shower together? We were not. We suggested they could hibiting discrimination in places of public accommoda- create single-sex bathrooms from the existing boy’s bath- tion did not apply. The U.S. Supreme Court disagreed.32 rooms. The Court held that the unselective membership policy Then it was argued that it was simply too dangerous and the large size of the Jaycees organization took it out for girls to go away from home. That argument was too of the category of a private group whose right to associa- silly even to address. tion is protected under the Constitution. Minnesota civil Because the camp’s name included the word “educa- rights law applied; the Jaycees were required to admit tion,” we argued that limiting participation to boys is a women.33 And in 1987 the U.S. Supreme Court applied the violation of Title IX of the federal education act, in addi- California law banning tion to being a violation of sex discrimination in New York State educa- any “business estab- tion law. lishment” to the Rotary On January 28, 1981, Clubs in the state.34 the New York Times ran Why so much fuss an article: “A 12-year Then it was argued over private clubs? What old girl has won her is so terrible if men want case against a state-oper- that it was simply too to gather, with no girls ated summer camp for allowed? What made the boys.”29 dangerous for girls to grown-up version of the On March 18, 1981, the tree house such a target of New York Times continued go away from home. lawsuits? its coverage: First of all, business is Wonder Woman and Little conducted in these clubs. Wonder Woman have Contacts are made. You need struck again, this time win- an accountant, a lawyer, a house ning a victory over New York State in their struggle painter? Find the right person at your Tuesday luncheon. against sexism: The dynamic duo are Karen DeCrow, But this issue goes beyond business and money, although a lawyer and well-known feminist, and her young that certainly is a motivation for going into court. What protegee, Lorca Sheppard, a 12-year-old Syracuse girl, women were asking for, were demanding, were taking to who, it may be recalled, appeared in Wonder Woman costumes in Atlantic City six years ago to protest the court, was the opportunity to be part of the world. They Miss America Pageant. wanted the opportunity to be central figures – outside of Now, as a result of a new effort, conducted in civil- the home. 35 ian clothes in State Supreme Court in Syracuse, New One such person is Bonnie Orendorff. Seventeen York State has been ordered to accept girls at Camp years after the U.S. Supreme Court required the Jaycees to Rushford, an all-boys environmental camp in Allegany admit women as members, she was denied membership County.30 by the Rome, New York, Elks Lodge on January 4, 2001. In addition to violating Title IX, the state was in vio- Although many local Elks groups were integrated by gen- lation of the provisions of § 40-c of the Civil Rights Act der, this was one of the groups which remained single sex. of the state of New York. Lorca Sheppard’s victory was On Friday nights, Bonnie Orendorff prepared fried noted nationwide. For example, Jane Pauley, then the fish dinners for the men of the Rome Elks Lodge. She co-host of the NBC Today show, wrote: “Congratulations! would then join her coworkers for a drink at the small Camps are for kids!”31 bar where the wives of Elks and female lodge employees Lorca made history but didn’t get to attend environ- could socialize.36 Down the hall at the lodge’s main bar, mental education camp: by the time New York State integrated the facility, she was too old for the program. Continued on Page 18

16 | March/April 2010 | NYSBA Journal

Continued from Page 16 Bonnie Orendorff’s attorneys – I represented her, as a the Rome Elks’ exclusively male membership drank and cooperating attorney with the New York Civil Liberties talked; women were not allowed. Union, as did lawyers from the American Civil Liberties Orendorff knew that other Elks Lodges were moving Union Women’s Rights Project – sought to change the towards gender equality. In fact, in 1995, the National construction of the Benevolent Orders Law and to have Fraternal Organization had ordered its chapters to start the New York rule consistent with the U.S. Supreme admitting women.37 Court opinions in the Jaycees and Rotary cases. Hoping they could belong to the same club as their In his decision of January 9, 2003, Judge Robert F. husbands and fathers, Orendorff, Deborah Lince-Milotte, Julian enunciated what is the overall rule in New York Peggy Elia, and Laura Elia submitted their first applica- State: “The Human Rights Law is to be construed liber- tions to join the Rome Elks Lodge in 1999 and received ally to accomplish the purposes enumerated therein.”42 the first of three rejections. He concluded, “It was arbitrary, capricious and an Bonnie Orendorff’s husband, Roger, who had been an abuse of discretion” for the New York State Division of Elk for 20 years, supported his wife’s desire to join the Human Rights to have dismissed the complaint of Bonnie organization. He said of the Lodge’s assertion that it was Orendorff.43 selective in admitting members, “that he ha[d] never seen At first glance this case, like so many others, seems to a male’s application denied in his [20] years as a member have been merely a tangled web of procedural wrangling. of the Rome lodge.”38 But it has strong substantive importance in the history of Orendorff went on an Internet letter-writing campaign women’s efforts to be full participants in the outside world. and gained support from the New York Civil Liberties To my pleasure, Bonnie Orendorff kept in contact with Union. On April 19, 2001, she brought a complaint against me. Eventually she and her husband moved from Rome, New the Elks before the New York State Division of Human York, to Florida. She called to tell me the following: Shortly Rights. On June 19, 2001, the Division of Human Rights after they moved, she and her husband went to a fish fry dismissed the complaint.39 The determination had relied being hosted by the Elks in their Florida town. When Bonnie on an interpretation of New York law: “Respondent is introduced herself, many people in the room recognized her incorporated under the benevolent orders law and is name. That lodge, which had many members, greeted her therefore distinctly private and not a place of public like a celebrity, a hero. They gave her a standing ovation. accommodation.”40 Bonnie Orendorff brought an Article 78 proceeding that Conclusion August, seeking review of the determination by the New It may be a source of amusement, or it may be a source York State Division of Human Rights, a declaration that of horror, but as recently as 1872,44 the U.S. Supreme Executive Law § 292(9) is unconstitutional, and a review Court declared that it was God’s will that women not be of the Rome Elks decision to deny her membership.41 allowed to practice law: It is also to be remembered that female attorneys at law were unknown in England, and a proposition that a woman should enter the courts of Westminster Hall in that capacity, or as a barrister, would have created hardly less astonishment than one that she should ascend the bench of bishops, or be elected to a seat in the House of Commons. . . . That God designed the sexes to occupy different spheres of action, and that it belonged to men to make, apply, and execute the laws, was regarded as an almost axiomatic truth. In view of these facts, we are certainly warranted in saying that when the legislature gave to this Court the power of granting licenses to practice law, it was with not the slightest expectation that this privilege would be extended to women. This is no longer the law in the United States. But even laws which have changed are still in our consciousness. Both women and men have these stereotypes and patterns in their heads. Are changes in the law due to political modifications, or is it the converse? Does the law, in existential fashion, reverse our behavior?

18 | March/April 2010 | NYSBA Journal Karen DeCrow Women’s rights are part of the inexorable march of Karen DeCrow is a nationally recognized attor- human rights across the planet, toward equality and jus- ney, author, activist, and leader of the women’s tice. My goal in writing this article is to inspire readers to movement. She has devoted her legal career to think more about the issues of equality between women cases promoting gender equality, eliminating age and men, girls and boys. Think hard when an employ- discrimination, and protecting civil liberties. ment situation occurs which has a scent of differential Born in Chicago, Ms. DeCrow earned her treatment. (My test is if the fact pattern would have been bachelor’s degree from the Medill School of different if the genders were reversed, it may be sexist.) Journalism at Northwestern University in 1959. My goal is to encourage parents to raise their sons and Over the next 10 years, she worked as a writer daughters as humans – not as separate species. and editor, and she became active in the women’s I urge readers to include gender cases in their legal movement. In 1967, Karen founded the Syracuse work. If you represent employers, help them to follow Chapter of the fledgling National Organization the state and federal civil rights laws. This is not only the for Women (NOW), and in 1974, she was elected moral and ethical thing to do, it is good business. If they National President of NOW, serving for two terms follow the law they will not be sued. They will be spared from 1974 to 1977. She is author of Sexist Justice: anguish, and they will save money. How Legal Sexism Affects You (NY Random Here’s another suggestion: take an employment dis- House, 1974) and co-author of Women Who crimination case representing a plaintiff. You will gain an Marry Houses; Panic and Protest in Agoraphobia education in how the corporate system operates in America (with Robert Seidenberg, M.D.; NY McGraw- (and increasingly, because of multi-national corporations, Hill Book Co., 1983). She has also written many in the world). You will learn economics and sociology. And, articles and lectured worldwide on civil rights, based on my 36 years of practice, I can say – without hesita- ■ feminism, parental rights, gender rights, and the tion – you will have a strikingly pleasurable time. Equal Rights Amendment. 1. 364 Mass. 389, 305 N.E.2d 92 (Mass. 1973). In January 2009, Ms. DeCrow was the 19th 2. Id. at 391. recipient of the New York State Bar Association’s 3. Meeker v. Meeker, 52 N.J. 59, 243 A.2d 801 (N.J. 1968). Ruth G. Schapiro Award, which recognizes note- 4. 377 U.S. 163 (1964). 5. 368 U.S. 57 (1961). worthy contributions to the concerns of women. 6. Id. at 61–62. That October she was inducted into the National 7. 63 Misc. 2d 895, 313 N.Y.S.2d 827 (Sup. Ct., N.Y. Co. 1970), aff’d, 36 A.D.2d Women’s Hall of Fame in Seneca Falls, New 796, 318 N.Y.S.2d 915 (1st Dep’t 1971). York. Ms. DeCrow has received innumerable 8. Id. at 898. 9. 419 U.S. 522 (1975). other honors, including the “2008 Distinguished 10. 439 U.S. 357 (1979). Lawyer Award” from the Onondaga County Bar 11. 311 F. Supp. 559 (S.D. Fla. 1970), rev’d on other grounds, 442 F.2d 385 (5th Cir. Association and a “2009 George Arents Award” 1971). from Syracuse University. She earned her law 12. Id. at 565–66. 13. 517 F. Supp. 292 (N.D. Tex. 1981). degree from Syracuse University College of Law 14. Weeks v. Southern Bell Tel. & Telegraph Co., 408 F.2d 228, 236 (5th Cir. 1969). in 1972. 15. See 29 C.F.R. § 1604.1(b)(2). 16. Weeks, 408 F.2d at 236. 17. 208 U.S. 412 (1908). 18. Id. at 421. 32. Roberts v. U.S. Jaycees, 468 U.S. 609 (1984). 19. Id. at 421–22. 33. Id. 20. Id. at 422. 34. Bd. of Directors of Rotary Int’l v. Rotary Club of Duarte, 481 U.S. 537 (1987). 21. Commonwealth v. Welosky, 276 Mass. 398, 414, 177 N.E. 656 (Mass. 1931). 35. Bonnie D. Orendorff v. Benevolent & Protective Order of Elks Lodge No. 96 & 22. State v. Hunter, 208 Ore. 282, 285, 300 P.2d 455 (Or. 1956); Quong Wing v. N.Y. State Div. of Human Rights, 195 Misc. 2d 53, 753 N.Y.S.2d 703 (Sup. Ct., Kirkendall, 223 U.S. 59, 63 (1912); People v. Case, 153 Mich. 98, 101, 116 N.W.2d Oneida Co. 2003). 558 (Mich. 1908). 36. Aaron Gifford, Women Turn to Courts to Join Rome Elks Club Other Central 23. Allred v. Heston, 336 S.W.2d 251 (Tex. Civ. App. 1960). New York Lodges Allow Women as Members and Leaders, Post Standard (Syracuse), 24. 400 U.S. 542 (1971). July 18, 2001, at Al. 25. Sheppard v. Dep’t of Envt’l Conservation, State of N.Y., & Div. of the Budget, 37. Id. Index No. 80-6993 (N.Y. 1981). 38. Id. 26. Robert W. Andrews, Area Feminist, 12, Sues Boys Camp, Post-Standard, Dec. 39. Id. 25, 1980, at Dl. 40. Bonnie D. Orendorff, 195 Misc. 2d at 55. 27. Id. 41. Id. 28. Id. 42. Id. at 62. See Arnot Ogden Mem’l Hosp. v. State Div. of Human Rights, 67 29. Associated Press, State Camp for Boys Told to Open to Girls, N.Y. Times, Jan. A.D.2d 543, 546, 416 N.Y.S.2d 372 (3d Dep’t 1979); N.Y. State Div. of State Police 28th, 1981, at B7. v. H. Carl McCall, 98 A.D.2d 921, 470 N.Y.S.2d 916 (3d Dep’t 1983). 30. Alan Krebs & Robert McG. Thomas, Jr., Victory Declared in Battle to Make 43. Bonnie D. Orendorff, 195 Misc. 2d at 62. Camp Coed, N.Y. Times, Mar. 18, 1981, at C26. 44. Bradwell v. The State, 83 U.S. 130 (1872). 31. Letter from Jane Pauley to author (Mar. 16, 1981) (on file with author).

NYSBA Journal | March/April 2010 | 19 BURDEN OF PROOF BY DAVID PAUL HOROWITZ

DAVID PAUL HOROWITZ ([email protected]) practices as a plaintiff’s personal injury lawyer in New York and is the author of New York Civil Disclosure (LexisNexis), the 2008 Supplement to Fisch on New York Evidence (Lond Publications), and the Syracuse Law Review annual surveys on Disclosure and Evidence. Mr. Horowitz teaches New York Practice, Evidence, and Electronic Evidence & Discovery at Brooklyn, New York and St. John’s law schools. A member of the Office of Court Administration’s CPLR Advisory Committee, he is a frequent lecturer and writer on these subjects.

We All Do It

do it. You do it. Newly minted As a newly minted attorney (in Kitty, I searched for Latin words with attorneys do it. Legends of the bar the days when law offices still used a similar spelling and sound. “Sicubi” I do it. Even judges can do it. “red-lined” paper for original docu- was a good candidate and seemed to What is “it”? Use “ss:” at the start ments filed with the court or served have a corresponding, albeit slightly of affidavits, immediately below the upon adversaries), I was blessed with redundant, definition: “if in any place, caption, that’s what. As in: the best teacher a neophyte lawyer if anywhere, wheresoever.”6 Other State of New York ) can have: a skilled, seasoned, and no candidates included “sicut” (so as, just )ss: nonsense (and what today would be as, as)7 and “sicubi” (a little dagger).8 County of New York ) referred to as “old school”) legal secre- By now thoroughly distracted Now ask yourself: Have you ever tary, one Kitty Roth.2 In addition to the from the legal work at hand, I turned seen an affidavit without the “ss:”? I finer points of grammar, proper saluta- to a legal dictionary for the answer. bet you haven’t. Until recently, I hadn’t tions, and the difference between “cc:” Ballentine’s Law Dictionary defined either. Every New York state court affi- and “bcc:” (back in the days when “ss.” as: davit I have ever seen has had it. Every people actually used carbon paper), Abbreviation of scilicet, used most federal court affidavit I have ever seen Kitty once told me that “ss:” stood for often in the caption of affidavits, has had it. Every affidavit from every what, to my untrained ear, sounded for example: other state I have ever seen has had it. like “situs siculi.” Remembering from State of New York County of Even affidavits from Louisiana have law school that “situs” was Latin and Monroe }ss: had it. had something to do with geography, Scilicet? Back to Ballentine’s: Think about the number of affida- and being ashamed to ask what “siculi” Scilicet: To-wit; that is to say, abbre- vits you draft every year. Then multi- (sic) meant, I made a noise intended viated “ss.,” “s.,” or “scil.” An alle- ply that by the 1,180,386 attorneys in to convey “I knew that already,” and gation of fact in a pleading in form the United States.1 That’s a staggering returned to my grunt work. dispensing with proof of the pre- number of affidavits, generated each With Kitty’s “situs siculi” as my start- cise circumstance alleged. and every year, going back hundreds ing point, I did an online search for the Helpful? I don’t know about you, of years. And each one has “ss:” on it. Latin words.3 I quickly confirmed that but I really don’t understand the defi- I was correct in my understanding of nition. It may mean the practice of set- So What? “situs”: “The manner of lying, the situ- ting forth, in the United States, a state So what? ation, local position, site of a thing.”4 and county rather than the “precise” I don’t know what it means. I’ll bet “Siculi” was more problematic. There location where an affidavit was exe- you don’t know what it means. Neither is a Latin word “siculi,” but it means cuted. Fortunately, Ballentine’s contains do those newly minted attorneys nor “The Siculians or Sicilians, an ancient a cross-reference for “ss:” legends of the bar. Even judges don’t Italian people on the Tiber, a portion TERM: apud London videlicet, in know what it means. of whom, driven thence, migrated to parochia Beatae Mariae de arcu- Recently, when I did come across the island of Sicily, which derived its bus, in ward de Cheap. TEXT: At an affidavit sans “ss:,” I began what I name from them.”5 While I am second London, that is to say, in the parish thought would be a quick search for to no one in my admiration of Sicilian of St. Mary-le-bow, in the ward of the meaning of the term, and its legal culture and cuisine, I could not believe Cheap. An old form for designat- significance (in order to criticize its that affidavits in the United States (not ing the venue. ALSO: See SS. omission). I was simply looking for to mention our mother country) for Well, at least we are back in the confirmation of the English translation hundreds of years have borne a refer- world of venue, which appears to of the Latin phrase that I had been told ence to the ancient people of Sicily. make sense in the manner in which many years ago “ss:” abbreviated. Realizing I must have misunderstood “ss:” is used in affidavits (although

20 | March/April 2010 | NYSBA Journal the cross-reference leads you back to impact on the admissibility of my affi- application and ordered the affidavit “To-wit.” davits, while making certain to include be amended.13 The Fourth Department Time for a new dictionary. Black’s the venue of the affidavit. And yet, made clear that the omission of the Law Dictionary9 offers the following: I would not be able to sleep having venue of the affidavit was potentially ss. abbr. 1. Sections. 2. Subscripsi drafted such an affidavit for fear that a fatal defect: (i.e., signed below). 3. Sans (i.e., a clerk would reject the affidavit, that The weight of authority in this without). 4. (Erroneously) scilicet. a judge would strike the affidavit from state seems to be to the effect that “Many possible etymologies have the record or elect not to consider the the venue of an affidavit is prima been suggested for this mysteri- affidavit a competent proof in support facie evidence of the place where it ous abbreviation. One is that it of whatever application gave rise to was sworn to, and, in the absence signifies scilicet (= namely, to wit), its submission. Small consolation to of a venue or statement in the jurat which is usually abbreviated sc. or my client if an appeal was required to as to where it was taken, it would scil. Another is that ss. represents prove my point, something the respon- contain no evidence that it was ‘[t]he two gold letters at the ends of dent in Babcock v. Kuntzsch11 learned sworn to within the jurisdiction of the chain of office or “collar” worn over 100 years ago. The issue? “The the officer administering the oath, by the Lord Chief Justice of the principal contention of the appellant and, without evidence that it was King’s Bench . . . .’ Max Radin, Law is that the affidavit thus used was taken by a proper officer, within Dictionary 327 (1955). Mellinkoff a nullity, because the venue therein his jurisdiction, would be regarded suggests that the precise etymol- did not contain the words ‘City of as a nullity, unless the presump- ogy is unknown: ‘Lawyers have Syracuse,’ and the letters ‘ss.,’ and that tion would be that it was taken been using ss for nine hundred the court had no power or jurisdiction within his jurisdiction.14 years and still are not sure what to amend the affidavit by inserting However, “the omission does not it means.’ David Mellinkoff, The them.”12 When the issue was raised invalidate the oath, or render the affi- Language of the Law 296 (1963). In at the trial level, the court denied the davit a nullity, when it is shown, as fact, though, it is a flourish deriv- ing from the Year Books — an equivalent of the paragraph mark: ‘¶ .’ Hence Lord Hardwicke’s statement that ss. is nothing more than a division mark. So much for scilicet.

Don’t Feel Bad You’ve used “ss:” your whole professional life. Could it really be that all this time you have incorporated a meaningless element into every affidavit you have ever drafted? Yes, but don’t feel bad: you are in good company. As the leading legal lexicographer of our generation, Bryan A. Garner, explains: “An early formbook writer incorporated it into his forms, and ever since it has been mindlessly perpetuated by one generation after another.”10

Why Do I Do It? Now firmly convinced that “ss:” is a meaningless historical artifact, I continue to include it in affidavits I draft. Why? Fear. Certain that “ss:” has no known meaning, and hence can have no legal significance, I could draft affidavits, sans “ss:,” confident that the omission should not have the slightest

NYSBA Journal | March/April 2010 | 21 So, even appellate the venue, viz., “County of New marketresearch/PublicDocuments/2009_NATL_ LAWYER_by_State.pdf. York, ss.”18 judges do it. 2. In those days, my office used Dictaphones and, The First Department affirmed, cit- as a native New Yorker, I was a bit of a fast talker. ing, inter alia, Babcock: Nonetheless, Kitty managed to convert my ram- blings into clear and coherent prose. in this case, that it was duly admin- The venue is only prima facie evi- istered by a proper officer within his dence of the place where an affida- 3. Charlton T. Lewis, A Latin Dictionary (1879) available at http://www.perseus.tufts.edu/hopper/ jurisdiction, and the omission of the vit is sworn to. Here, the affidavit, resolveform?redirect=true&lang=Latin. venue may be supplied by amend- while it does not contain a venue, 4. Charlton T. Lewis, A Latin Dictionary (1879) ment.”15 Noting that section 723 of the purports to have been sworn to available at http://www.perseus.tufts.edu/hopper/ then-effective Code of Civil Procedure before a notary public of Kings text?doc=Perseus%3Atext%3A1999.04.0059%3Aent ry%3Dsitus2. “requires the court, in every stage of an county, whose certificate of author- action, to disregard an error or defect 5. Charlton T. Lewis, A Latin Dictionary (1879) ity to administer an oath was filed available at http://www.perseus.tufts.edu/hopper/ in the pleadings or other proceedings, in the county of New York. The text?doc=Perseus%3Atext%3A1999.04.0059%3Aent which does not affect the substan- omission of the venue, however, at ry%3DSiculi. tial rights of the adverse party,”16 the most made the affidavit prima facie 6. Charlton T. Lewis, A Latin Dictionary (1879) Fourth Department affirmed the deci- a nullity, but the affidavit was, in available at http://www.perseus.tufts.edu/hopper/ text?doc=Perseus%3Atext%3A1999.04.0059%3Aent sion of the trial court. fact, sworn to within the jurisdic- ry%3Dsicubi. Seven years later, citing Babcock, the tion – as appears from the affidavit 7. Charlton T. Lewis, A Latin Dictionary (1879) First Department reached the same used to procure the amendment – available at http://www.perseus.tufts.edu/hopper/ conclusion in Fisher v. Bloomberg,17 of the notary who administered the text?doc=Perseus%3Atext%3A1999.04.0059%3Aent ry%3Dsicut. although not without provoking a oath, and, therefore, the omission of the venue did not invalidate the 8. Charlton T. Lewis, A Latin Dictionary (1879) pithy dissent by Presiding Justice Van available at http://www.perseus.tufts.edu/hopper/ Brunt: “I dissent. The attachment was oath, nor did it render the affidavit text?doc=Perseus%3Atext%3A1999.04.0059%3Aent also amended in a material point.” In a nullity when it appeared that the ry%3Dsicula. Fisher, the defendant moved to vacate oath was duly administered.19 9. 8th Ed. 2004. an order of attachment, and the plain- So, even appellate judges do it. 10. A Dictionary of Modern Legal Usage (2d ed. tiff moved by order to show cause to 1985). correct a defect in one of the affida- Conclusion 11. 85 Hun. 33, 32 N.Y.S. 587 (4th Dep’t 1895). vits upon which the attachment was Having shared this legal mystery, I con- 12. Id. based: tinue, for reasons aforestated, drafting 13. Id. at 588. The defect sought to be supplied affidavits all bearing the meaningless 14. Id. was the omission of the venue. “ss:.” However, each time I do so, or 15. Id. Both motions were heard together, come across “ss:” in an affidavit from 16. Id. at the close of which an order was another party, I can’t help smiling. ■ 17. 74 A.D. 368, 77 N.Y.S. 541 (1st Dep’t 1902). made granting leave to the plaintiff 18. Id. at 369. 1. As of 2009 according to the American Bar within ten days to amend such 19. Id. (citation omitted). Association. See http://new.abanet.org/ affidavit nunc pro tunc by inserting

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22 | March/April 2010 | NYSBA Journal NEW YORK STATE BAR ASSOCIATION

I value my NYSBA membership for its wide variety of reliable information resources — from its online publications, to its listserves, to its case summary and alert services, and its NYSBA T-News — all of which I use regularly. Tracey Salmon-Smith NYSBA member since 1991

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www.nysba.org/renew2010 Thank you for your membership support. 2009 New York State Legislative Session Changes Affecting Trust and Estate Law By Joshua S. Rubenstein

espite the introduction of nearly 60 trusts and executed prior to that date unless there is a clear indica- estates–related bills in the New York State tion of a contrary intent.1 DLegislature, only a small handful passed both the Assembly and the Senate. These include a new default Surrogate’s Court Procedure Act simultaneous death rule, technical guardianship changes, Section 1750-b(1)(a) of the SCPA has been amended to fix anatomical gift clarification, and sweeping changes to a technical error, deleting the word “court” from “sur- New York’s power of attorney law. The low volume of rogate court decision-making committee.” This change is legislation was likely caused by the June 8, 2009, “coup,” effective immediately.2 which prevented any bills from passing the Senate for the Section 1757(2) of the SCPA has been amended to remainder of the session. extend the time by which a court must confirm the appointment of a standby guardian 60 days to 180 days Estates, Powers and Trusts Law after the assumption of his or her duties. This change is Section 2-1.6 of the EPTL was repealed in its entirety and effective immediately.3 replaced with a new § 2-1.6, eliminating New York’s long- standing simultaneous death test and replacing it with JOSHUA S. RUBENSTEIN ([email protected]) is a co-man- the 120-hour survivorship requirement found in the 1993 aging partner at Katten Muchin Rosenman, New York City. He earned his version of the Simultaneous Death Act. This change is undergraduate degree from Columbia University, where he was elected to effective July 21, 2009, provided, however, that (1) actions Phi Beta Kappa, and his J.D. from Columbia Law School, where he was a pending on that date shall not be impaired, and (2) the Harlan Fiske Stone Scholar. new rules of construction shall apply to instruments

24 | March/April 2010 | NYSBA Journal General Obligations Law purposes, providing enforcement procedures and estab- The title heading of Title 15 of Article 5 of the General lishing standards of care.7 Obligations Law (GOL) has been amended to read, GOL § 5-1502C has been amended to delete the “Statutory Short Form and Other Powers of Attorney authority to revoke, create or modify trusts from a power for Financial Estate Planning.” This change is effective of attorney. This change is effective September 1, 2009, for September 1, 2009, for powers of attorney executed on or powers of attorney executed on or after that date. Powers after that date. Powers of attorney executed before that of attorney executed before that date will remain valid, date will remain valid, but will become subject to certain but will become subject to certain of the provisions in the of the provisions in the new law, expanding their use for new law, expanding their use for benefits and health care benefits and health care purposes, providing enforcement purposes, providing enforcement procedures and estab- procedures and establishing standards of care.4 lishing standards of care.8 GOL § 1501 has been repealed and replaced with three GOL § 5-1502D has been amended to add the power new sections – § 5-1501, § 5-1501A and § 5-1501B. Section to make deposits to and withdrawals from bank accounts, 5-1501 contains definitions governing Title 15 of Article provided however, that the power to add or delete joint 5 of the GOL, including new definitions for a “monitor” tenants or beneficiaries of Totten trusts be conveyed and a “statutory major gifts rider.” Section 5-1501A cre- in a statutory major gifts rider. This change is effective ates the presumption that powers of attorney survive the September 1, 2009, for powers of attorney executed on or principal’s incapacity and provides that if a guardian is after that date. Powers of attorney executed before that appointed for the principal, the agent shall thenceforth date will remain valid, but will become subject to certain account to the guardian. Section 5-1501B sets forth the of the provisions in the new law, expanding their use for requirements for a valid power of attorney, including benefits and health care purposes, providing enforcement that it be in at least 12-point typeface and signed by both procedures and establishing standards of care.9 the principal and the agent (but not necessarily at the GOL § 5-1502F has been amended to require that the same time); it contains the correct wording of the “cau- power to change beneficiary designations in life insur- tion to the principal” and “important information for the ance policies must be conveyed in a statutory major gifts agent.” To make most gifts or transfers, the power must rider. This change is effective September 1, 2009, for pow- be accompanied by a statutory major gifts rider. The ers of attorney executed on or after that date. Powers of power becomes effective as to an agent when signed by attorney executed before that date will remain valid, but that agent, or at such date or on the occurrence of such will become subject to certain of the provisions in the contingency as the power may specify. A “person” other new law, expanding their use for benefits and health care than an individual may use other forms of powers of purposes, providing enforcement procedures and estab- attorney. This change is effective September 1, 2009, for lishing standards of care.10 powers of attorney executed on or after that date. Powers GOL § 5-1502G has been amended to provide that of attorney executed before that date will remain valid, all powers are exercisable with respect to any estates, but will become subject to certain of the provisions in the trusts or other funds in which the principal is interested, new law, expanding their use for benefits and health care regardless of whether such estates, trusts or other funds purposes, providing enforcement procedures and estab- are specifically identified “at the giving of the power of lishing standards of care.5 attorney.” This change is effective September 1, 2009, for GOL § 5-1502A has been amended to delete the powers of attorney executed on or after that date. Powers authority to revoke, create or modify trusts from a power of attorney executed before that date will remain valid, of attorney. This change is effective September 1, 2009, for but will become subject to certain of the provisions in the powers of attorney executed on or after that date. Powers new law, expanding their use for benefits and health care of attorney executed before that date will remain valid, purposes, providing enforcement procedures and estab- but will become subject to certain of the provisions in the lishing standards of care.11 new law, expanding their use for benefits and health care Subdivision 13 of GOL § 5-1502I has been amended purposes, providing enforcement procedures and estab- to replace the phrase “personal relationships and affairs” lishing standards of care.6 with “personal and family maintenance.” This change is GOL § 5-1502B has been amended to delete the effective September 1, 2009, for powers of attorney exe- authority to revoke, create or modify trusts from a power cuted on or after that date. Powers of attorney executed of attorney. This change is effective September 1, 2009, for before that date will remain valid, but will become subject powers of attorney executed on or after that date. Powers to certain of the provisions in the new law, expanding of attorney executed before that date will remain valid, their use for benefits and health care purposes, provid- but will become subject to certain of the provisions in the ing enforcement procedures and establishing standards new law, expanding their use for benefits and health care of care.12

NYSBA Journal | March/April 2010 | 25 GOL §§ 5-1505 and 5-1506 are repealed and replaced attorney executed on or after that date. Powers of attorney executed before that date will remain valid, but will with 10 new sections. become subject to certain of the provisions in the new law, expanding their use for benefits and health care purposes, providing enforcement procedures and establish- Subdivision 14 of GOL § 5-1502I has been renumbered ing standards of care.18 subdivision 15, and a new subdivision 14 has been added GOL § 5-1502O has been redesignated as § 5-1502N. to continue preexisting patterns of gifts not to exceed This change is effective September 1, 2009, for powers of $500 per year in the aggregate. This change is effective attorney executed on or after that date. Powers of attor- September 1, 2009, for powers of attorney executed on or ney executed before that date will remain valid, but will after that date. Powers of attorney executed before that become subject to certain of the provisions in the new date will remain valid, but will become subject to certain law, expanding their use for benefits and health care pur- of the provisions in the new law, expanding their use for poses, providing enforcement procedures and establish- benefits and health care purposes, providing enforcement ing standards of care.19 procedures and establishing standards of care.13 GOL § 5-1503 has been amended to permit certain GOL § 5-1502J has been amended to expand powers modifications to statutory major gifts riders as well as to with respect to benefits from military service to benefits statutory short form powers of attorney. This change is from governmental programs and civil service as well. effective September 1, 2009, for powers of attorney exe- This change is effective September 1, 2009, for powers of cuted on or after that date. Powers of attorney executed attorney executed on or after that date. Powers of attor- before that date will remain valid, but will become subject ney executed before that date will remain valid, but will to certain of the provisions in the new law, expanding become subject to certain of the provisions in the new law, their use for benefits and health care purposes, provid- expanding their use for benefits and health care purpos- ing enforcement procedures and establishing standards es, providing enforcement procedures and establishing of care.20 standards of care.14 GOL § 5-1504 has been amended to prevent third par- GOL § 5-1502K has been amended to expand powers ties from refusing to honor a statutory short form power with respect to records, reports and statements to health of attorney without reasonable cause. It shall be deemed care billing and payment matters as well. This change is unreasonable if the cause is that it is not a form prescribed effective September 1, 2009, for powers of attorney exe- by the third party or that there has been a lapse of time cuted on or after that date. Powers of attorney executed since the execution of the power of attorney or that it was before that date will remain valid, but will become subject executed by the principal and agents on different dates. to certain of the provisions in the new law, expanding A special proceeding as authorized by GOL § 5-1510 their use for benefits and health care purposes, provid- shall be the exclusive remedy for such a violation. No ing enforcement procedures and establishing standards third party shall be liable for honoring a power of attor- of care.15 ney in the absence of actual knowledge of its invalidity. GOL § 5-1502L has been amended to require that the Financial institutions where the principal has an account power to change beneficiary designations of retirement are deemed to have actual notice following receipt of a benefits must be conferred in a statutory major gifts rider. written notice of revocation. Third parties may require This change is effective September 1, 2009, for powers of the agent to execute an affidavit that the power of attor- attorney executed on or after that date. Powers of attorney is in full force and effect, upon which they may rely ney executed before that date will remain valid, but will in the absence of actual knowledge to the contrary. Only become subject to certain of the provisions in the new law, statutory short form powers of attorney must be accepted expanding their use for benefits and health care purpos- in accordance with this section. This change is effective es, providing enforcement procedures and establishing September 1, 2009, for powers of attorney executed on or standards of care.16 after that date. Powers of attorney executed before that GOL § 5-1502M, titled “Construction – Certain Gift date will remain valid, but will become subject to certain Transactions,” has been repealed. This change is effective of the provisions in the new law, expanding their use for September 1, 2009, for powers of attorney executed on or benefits and health care purposes, providing enforcement after that date. Powers of attorney executed before that procedures and establishing standards of care.21 date will remain valid, but will become subject to certain GOL §§ 5-1505 and 5-1506 are repealed and replaced of the provisions in the new law, expanding their use for with 10 new sections. benefits and health care purposes, providing enforcement • GOL § 5-1505 sets forth the standard of care and procedures and establishing standards of care.17 fiduciary duties of the agent, and the requirement GOL § 5-1502N has been redesignated as § 5-1502M. to disclose records to certain parties, as well as the This change is effective September 1, 2009, for powers of procedure by which an agent may resign.

26 | March/April 2010 | NYSBA Journal • GOL § 5-1506 provides that an agent shall be providing enforcement procedures and establishing stan- uncompensated, except as provided in the power dards of care.22 of attorney, but may be reimbursed for reasonable expenses, actually incurred. Public Health Law • GOL § 5-1507 sets forth how the agent may sign for Section 4307 of the Public Health Law has been amended the principal and that the signature is an attestation to clarify that the statutory prohibition against the sale to the validity of the power of attorney, except as to or purchase of organs does not prohibit conditioning the third parties with actual knowledge to the contrary. donation of an organ on the donor’s receipt of a matching • GOL § 5-1508 provides that unless otherwise donation, such as with a paired kidney exchange. This provided, co-agents must act jointly but may act change is effective immediately.23 ■ without an unavailable co-agent in the event of emergency and following the death, resignation or 1. 2009 N.Y. Laws ch. 92, § 1. incapacity of such co-agent. Principals may desig- 2. 2009 N.Y. Laws ch. 12, § 1 nate successor agents. 3. 2009 N.Y. Laws ch. 260, § 1. • GOL § 5-1509 permits a principal to appoint a moni- 4. 2008 N.Y. Laws ch. 644, § 1, as amended by 2009 N.Y. Laws ch. 4, § 1. tor to review the records of the agency. 5. 2008 N.Y. Laws ch. 644, § 2, as amended by 2009 N.Y. Laws ch. 4, § 1. • GOL § 5-1510 creates a special proceeding to deter- 6. 2008 N.Y. Laws ch. 644, § 3, as amended by 2009 N.Y. Laws ch. 4, § 1. mine all matters with respect to powers of attorney. 7. 2008 N.Y. Laws ch. 644, § 4, as amended by 2009 N.Y. Laws ch. 4, § 1. • GOL § 5-1511 provides the manner for termina- 8. 2008 N.Y. Laws ch. 644, § 5, as amended by 2009 N.Y. Laws ch. 4, § 1. tion or revocation of a power of attorney. Unless 9. 2008 N.Y. Laws ch. 644, § 6, as amended by 2009 N.Y. Laws ch. 4, § 1. expressly provided to the contrary, the execution of 10. 2008 N.Y. Laws ch. 644, § 7, as amended by 2009 N.Y. Laws ch. 4, § 1. a power of attorney revokes any and all prior pow- 11. 2008 N.Y. Laws ch. 644, § 8, as amended by 2009 N.Y. Laws ch. 4, § 1. ers of attorney executed by the principal. 12. 2008 N.Y. Laws ch. 644, § 9, as amended by 2009 N.Y. Laws ch. 4, § 1. • GOL § 5-1512 provides that powers of attorney exe- 13. 2008 N.Y. Laws ch. 644, § 10, as amended by 2009 N.Y. Laws ch. 4, § 1. cuted in another state in compliance with the laws 14. 2008 N.Y. Laws ch. 644, § 11, as amended by 2009 N.Y. Laws ch. 4, § 1. of that state are valid in New York. 15. 2008 N.Y. Laws ch. 644, § 12, as amended by 2009 N.Y. Laws ch. 4, § 1. • GOL § 5-1513 sets forth the statutory short form 16. 2008 N.Y. Laws ch. 644, § 13, as amended by 2009 N.Y. Laws ch. 4, § 1. power of attorney. 17. 2008 N.Y. Laws ch. 644, § 14, as amended by 2009 N.Y. Laws ch. 4, § 1. • GOL § 5-1514 provides that all gift-giving powers 18. 2008 N.Y. Laws ch. 644, § 15, as amended by 2009 N.Y. Laws ch. 4, § 1. beyond those authorized in § 5-1502I(14) must be 19. 2008 N.Y. Laws ch. 644, § 16, as amended by 2009 N.Y. Laws ch. 4, § 1. set forth in a statutory major gifts rider to a statutory short form power of attorney, or in a non- 20. 2008 N.Y. Laws ch. 644, § 17, as amended by 2009 N.Y. Laws ch. 4, § 1. statutory power of attorney executed as provided 21. 2008 N.Y. Laws ch. 644, § 18, as amended by 2009 N.Y. Laws ch. 4, § 1. in § 5-1514(a), (b). This section sets forth permitted 22. 2008 N.Y. Laws ch. 644, § 19, as amended by 2009 N.Y. Laws ch. 4, § 1. gift transactions and prevents a gift to the agent 23. 2009 N.Y. Laws ch. 362, § 1. unless expressly authorized. This section also sets forth the form of statutory major gifts rider. A statutory major gifts rider must be executed simultaneously with the execution of the short-form power of attorney and must be both acknowledged in the same manner as a deed conveying real property and executed in the presence of two witnesses who are not potential gift recipients. These changes are effective September 1, 2009, for powers of attorney executed on or after that date. Powers of attorney executed before that date will remain valid, but will become subject to certain of the provisions in the new law, expanding their use for benefits and health care purposes,

NYSBA Journal | March/April 2010 | 27 MARVIN V. AUSUBEL is a retired partner and Of Counsel to the litigation department of Fried, Frank, Harris, Shriver & Jacobson. He is a Fellow, American College of Trial Lawyers, and a former Adjunct Professor, Brooklyn Law School, and Special Master, Appellate Division, First Department. He received his J.D. from Harvard Law School.

The Rise and Fall of Martin Thomas Manton By Marvin V. Ausubel

artin Thomas Manton was born in Brooklyn, Cockran, a former U.S. Representative and a Democratic New York, on August 2, 1880, into an Irish fam- leader. Manton had a most successful practice. He was Mily. He was a devout and prominent Catholic reputed to be worth a half million dollars, and he enjoyed layman who served as president of the Catholic Club and an excellent reputation. the Catholic Association for International Peace. Msgr. William E. Cashin, rector of the Roman Catholic Church, Judicial Career said that Judge Manton “has been a fine, clean-living In 1916 President Woodrow Wilson appointed Manton to man.”1 When he died at age 66, he had lived both the the United States District Court for the Southern District American dream and the American disaster. He was a of New York. He became at age 36 the youngest federal federal judge for 22 years and a one-time candidate for judge ever appointed. Two years later, in 1918, he was a nomination to the United States Supreme Court, who elevated to the United States Court of Appeals for the resigned in disgrace from the bench when he was accused Second Circuit, and through seniority he became Senior of receiving more than $400,000 from individuals with Circuit Judge of the Court (the equivalent of the position business before his court. He was tried and convicted of of Chief Judge today). One of the most revered courts in conspiracy to obstruct justice and served 19 months in a the country, the Second Circuit at that time included the federal penitentiary. distinguished judges Learned Hand, Augustus Hand, Charles Merrill Hough and Thomas Swan. As Senior Law School Circuit Judge, Manton was considered the tenth most Manton worked his way through Columbia Law School, important judge in the land. At the time Circuit Judges and in 1901 he was admitted to the New York bar. He received a salary of $12,500 per annum. began practicing law in Brooklyn, but in due course he In 1922 President Warren G. Harding was required to moved his offices to Manhattan. In about 1913 he formed appoint a judge to the United States Supreme Court to the law partnership of Cockran & Manton with W. Bourke succeed Justice William R. Day. The last Catholic to sit on

28 | March/April 2010 | NYSBA Journal the high Court was Chief Justice Edward Douglas White, investigation of Judge Manton’s affairs to determine who had died the year before. The Day vacancy was whether there was a basis for prosecuting him under regarded as the “Catholic seat” on the Court. The eastern New York’s income tax laws. This investigation lasted hierarchy of the Church lobbied the president to appoint about one year; it was thorough and broad. Because the Manton. However, Manton ran into opposition from the country was in the depths of a massive depression with Court’s Chief Justice and former U.S. president, William a scarcity of available jobs, Dewey was able to recruit Howard Taft; President Harding ultimately appointed highly talented people for his office. Pierce Butler of Minnesota to the Court. The Manton investigation was directed by Assistant District Attorney Murray I. Gurfein.3 He was aided from Extra-Judicial Business Activities time to time by Assistant District Attorneys Frank S. While serving as a judge, Manton owned or controlled Hogan,4 Victor J. Herwitz, Lawrence E. Walsh5 and Aaron 12 corporations, among them several that were heav- Benson. A.J. Gutreich supervised the accounting phase of ily invested in realty. Manton’s official and confidential the inquiry. secretary, Marie D. Schmalz, was made treasurer of at The investigation culminated in six charges accusing least two of these companies. Many of the real properties Manton or his corporations of having received more than held or controlled by Manton’s enterprises were highly $400,000, only a minuscule portion of which was repaid. mortgaged. Half of the charges related to sums received from persons acting for companies interested in litigation before the The Crash Second Circuit. The other half concerned transactions Manton was keenly and substantially affected by the involving persons who aided Manton financially under “Great Depression.” His business enterprises were heav- circumstances that would expose the judge to criticism. ily in debt, and by June 1934 he personally owed more than half a million dollars. Rumors began to circulate that Schick Judge Manton was on the take. One of the charges involved Schick Dry Shaver Inc. Towards the end of 1937, Thomas E. Dewey, the New v. Dictograph Products Corp.6 Schick, a manufacturer York County District Attorney,2 decided to conduct an of electric razors, brought a patent infringement suit

NYSBA Journal | March/April 2010 | 29 against Dictograph in the U.S. District Court for the agency earned commissions of about $2.8 million annu- Eastern District of New York and prevailed. Dictograph ally from American Tobacco’s advertising business. appealed.7 In 1931 a Manhattan lawyer named Richard Reid Looking for a reversal, Archie M. Andrews, who con- Rogers, who was a stockholder in American Tobacco, trolled Dictograph and a number of other companies, met brought two stockholders’ suits against the company with a “confidential man,” George M. Spector. During the claiming that its officers illegally paid themselves sub- pendency of the appeal, it was alleged, Andrews gave stantial bonuses. He requested that they be required to

The New York County District Attorney had been investigating Judge Manton’s activities for at least a year, and a grand jury had been impaneled nearly nine months.

$52,000 to Spector, who in turn gave or “loaned” that sum return those bonuses to the company and be restrained to corporations owned or controlled by Judge Manton. from paying themselves future bonuses. He sought more On April 12, 1937, a divided Second Circuit reversed than $10 million in damages. The viability of this suit was the District Court with Manton voting for reversal. before the Second Circuit in 1932. Within seven weeks of the reversal, Spector paid out an Around this time Judge Manton told his friend Levy additional $25,000 by giving (1) more than $20,000 to that he needed money and suggested a $250,000 loan Marie Schmaltz, (2) $3,000 to Forest Hills Terrace Corp. (a be made to his business partner James J. Sullivan. Levy Manton company) and (3) slightly less than $2,000 to one went to American Tobacco10 and spoke with Paul Hahn, of Manton’s creditors. who suggested that the money could be borrowed from Albert Lasker. Hahn sent Sullivan to Lasker who extend- John L. Lotsch and Fort Greene National Bank ed the loan. One month later the appeal was argued Another charge involved John L. Lotsch and the Fort before the Circuit Court. Both suits were dismissed in a Greene National Bank of Brooklyn. Lotsch was a lawyer split decision, with Judge Manton writing the majority and banker. He was chairman of the Board of Directors of opinion.11 the Fort Greene National Bank of Brooklyn. Of the $250,000 lent to Sullivan more than $232,000 Lotsch was indicted for soliciting a bribe while acting went into business enterprises owned and controlled by as a Special Master. He was acquitted by directed verdict Manton. Withdrawals from Sullivan’s account for the but reindicted for extortion. He obtained a writ of habeas benefit of Manton’s corporations began about a month corpus which the District Court dismissed. He appealed before the favorable appellate decision. None of the to the Second Circuit.8 money was ever repaid. Manton had, on January 6, 1936, obtained a $37,500 “loan” from Lotsch’s Fort Greene National Bank of Dewey Brings Charges Brooklyn. When Lotsch’s appeal from the District Court’s The New York County District Attorney had been inves- order came before a panel of the Circuit Court,9 Manton tigating Judge Manton’s activities for at least a year, and did not recuse himself, even though he had the financial a grand jury had been impaneled nearly nine months. In dealing with Lotsch’s bank. The Second Circuit, includ- January 1939, District Attorney Dewey delivered a letter ing Manton, reversed the District Court and ordered the to Congressman Hatton W. Summers of Texas, Chairman indictment dismissed. of the House Judiciary Committee, setting forth in detail the six charges against the judge and intimating that they American Tobacco were grave enough to warrant impeachment. Dewey’s Louis Samter Levy was a law school classmate of Judge office was prepared to cooperate with the federal govern- Manton. The two kept in touch. Levy became a partner in ment in connection with this matter. the Manhattan firm of Chadbourne & Stanchfield, which The subject of the charges was made public on January eventually added Levy’s name to the firm masthead. 30, 1939, and the very next day Manton tendered his Chadbourne, Stanchfield & Levy represented written resignation,12 which was promptly accepted by American Tobacco. The company’s president was George President Franklin Delano Roosevelt. Manton was direct- W. Hill, whose assistant was a company vice president, ed to clean up his affairs by February 7, 1939, and not to Paul Hahn. American Tobacco’s advertising agency was sit on any cases in the interim. Lord & Thomas, whose president was Albert Lasker. The

30 | March/April 2010 | NYSBA Journal The U.S. Attorney Acts June 1934 and May 1935, he went from being more than Almost contemporaneously with Dewey’s letter $500,000 in debt to being $750,000 in the black. All this on to Chairman Summers, U.S. Attorney General Frank a salary of $12,500. Murphy13 announced that the Department of Justice was There was a lot for the prosecution to work with. For investigating allegations of misconduct by Judge Manton example, Alfred F. Reilly, president of the Case Company, to determine whether there was a basis for action by the took the stand concerning the patent infringement case U.S. government. Judge Manton said that he welcomed of Art Metal Works v. Abraham & Straus, Inc.16 His com- the investigation and responded to the charges by saying, pany, as manufacturer of the contested cigarette lighters, “[H]asn’t a judge the right to buy stocks and bonds?” By was required to indemnify the defendant. Reilly testified the time the investigation was completed at least two of that he paid William Fallon, the “bag man,” $39,850 for a the subjects of inquiry, James J. Sullivan and Archie M. favorable decision for the defendant. He further testified Andrews, had died. that Manton called three days before he resigned from By April 1939 the investigation produced a conspir- the bench to ask if “Bill” Fallon was on Reilly’s payroll. In acy indictment of (1) Judge Manton, (2) John L. Lotsch, addition, in the course of this call Manton asked Reilly to (3) William J. Fallon, (4) George M. Spector, and (5) Forest destroy evidence in the Case Company records showing W. Davis and included several unindicted co-conspira- payments to Fallon. tors. In connection with the case of Smith v. Hall,17 another The case was set down for trial for May 1939. patent infringement suit, Almon Hall testified he paid Eventually, Lotsch and Davis pleaded guilty and turned a total of $69,000 to Fallon and accountant Forest W. state’s evidence. Fallon also took a plea on the eve of trial Davis for a favorable decision. Bank transfers and other but did not testify. records documented his story. Hall received from Fallon a $5,000 note signed by Manton and made out to Davis, The Case Against Manton as well as a receipt from Fallon that was to be returned The indictment was a single count invoking two sections when a favorable decision was forthcoming. The case of a “conspiracy” statute. The defendants were charged was argued on February 14, 1936, before a panel con- with obstructing justice with intent to defraud the United sisting of Judges Manton, Thomas W. Swan and Harrie States. The maximum penalty for a conviction of violating B. Chase. The decision was scheduled for March 2, but this statute was two years’ imprisonment and a $10,000 Hall received a telegram from Fallon, dated February fine. Neither Manton nor his co-defendants were indicted 29, advising him that the decision would be delayed. for violating the more stringent “judicial bribery” statute, Subsequently Fallon told Hall that one of the Judges which would expose a violator to the more draconian Hand had seen the opinion and raised questions as to maximum punishment of 15 years’ imprisonment and a its propriety. Fallon said that Manton told him that the fine of $20,000. other members of the panel would have to be paid as It has been theorized that the government elected well. On April 6 a decision in Hall’s favor was handed to proceed under the conspiracy statute because of the down. Manton wrote for the court, with the other panel greater latitude of permissible evidence. Moreover, with members concurring. respect to Manton, the consequences of the conviction and any substantial imprisonment would be more significant than the particular length of the sentence itself. The charge of conspiracy on the part of a federal appellate court to sell justice was unprecedented in the 150-year history of this nation. Indeed, there had been no evident parallel in the history of Anglo American high judiciary since Sir Francis Bacon, the Lord Chancellor of England, was removed from office for a similar offense more than 300 years earlier.14 The prosecution team was headed up by U.S. Attorney John T. Cahill.15 The prosecution’s case had solid documentary evidence such as notes, checks and ledger sheets; live witnesses such as co-defendants John L. Lotsch and Forest W. Davis; and transcripts of testimony given by Judge Manton in collateral proceedings. It introduced testimony that Manton requested the destruction of incriminating evidence. Finally, it established through Manton’s own admission that in less than a year, between

NYSBA Journal | March/April 2010 | 31 Hall further testified that Fallon informed him that victims of “the greatest blackmail scheme ever devised,” Manton recommended he retain Thomas G. Haight of painting a “picture of brokers and brewers and money- Jersey City, a former Circuit Judge, to argue his case lenders lugging the cash into the judge’s chambers. Cash before the Supreme Court because he felt that Hall’s leaves very few traces.” attorneys did not present his case well before his panel in the Circuit Court. Haight and Davis corroborated Hall, Verdict with the latter making it crystal clear that Hall’s payment In little more than three hours of actual deliberation the was a bribe to Manton, and the former confirming that jury returned a guilty verdict as to both defendants. Manton was involved in recommending him. In John Lotsch’s testimony for the government, he dis- Appeals cussed the $10,000 bribe he gave Manton to fix a case in When Manton took his appeal to the Second Circuit, the a Connecticut prosecution in which Lotsch was charged only judge on that court who had not previously served with bribery. The presiding judge, Edwin S. Thomas, did with him was the recently appointed Charles Clark.20 indeed direct a verdict of acquittal of Lotsch. Thus, a specially constituted Second Circuit was cho- sen, consisting of retired Supreme Court Justice George Sutherland, Associate Supreme Court Justice Harlan F. There were suggestions Stone21 and Judge Clark. On December 4, 1939, this court unanimously affirmed the conviction and sentence of two of a “frame-up” against a years’ imprisonment in Lewisburg federal prison plus a distinguished judge. $10,000 fine.22 On February 26, 1940, the U.S. Supreme Court denied Manton’s petition for a writ of certiorari.23 Justice Murphy, The defense called a number of witnesses, including who was the Attorney General that had directed the Manton’s secretary, Marie Schmalz. Manton’s principal federal investigation which resulted in the conviction, hope for acquittal was his own testimony, but the prose- and Justice Stone, who sat on the Second Circuit panel cution had done a formidable job in attacking the judge’s that affirmed the conviction, took no part in considering credibility. Manton also called a parade of eight charac- Manton’s last application. The denial of this last applica- ter witnesses, including John W. Davis18 and Alfred E. tion brought to an end the Manton saga. He died less than Smith.19 seven years later, in utter disgrace.

Summations Conclusion The theme of the defendant’s closing argument was that Justice Sutherland, who wrote for the specially consti- the prosecution relied on the testimony of witnesses with tuted Second Circuit affirming Manton’s conviction, criminal records and of co-conspirators, whether indicted noted that Manton was one of three judges in each of the or not. In contrast with this array of unreliable persons “corrupt” cases. He wrote: was the high caliber of the defendant’s witnesses and We cannot doubt that the other judges who sat in the Manton’s sterling reputation – which was vouched for by various cases acted honestly and with pure motives most trustworthy affiants. in joining in the decisions. No breath of suspicion has There were suggestions of a “frame-up” against a dis- been directed against any of them and justly none tinguished judge. And with specific respect to Lotsch, the could be. And for aught that now appears we may assume for present purposes that all of the cases in other co-conspirators and the prosecution witnesses, the which Manton’s action is alleged to have been corrupt- defense argued that they were jailbirds given a “whole- ly secured were in fact rightly decided. But the unlaw- sale delivery” so that they might walk “arm in arm with fulness of the conspiracy here in question is in no the prosecutor through the courtroom.” degree dependent upon the indefeasibility of the deci- “What is it that stands out in this case more than sions which were rendered consummating it. Judicial anything else? It is the atmosphere of suspicion. With the action whether just or unjust, right or wrong, is not atmosphere that has been created in this courtroom you for sale; and if the rule shall ever be accepted that the ladies and gentlemen of the jury are asked to suspicion a correctness of judicial action taken for a price removes man into jail. You can’t do that.” the stain of corruption and exonerates the judge, the The prosecution’s closing argument stressed the sup- event will mark the first step toward the abandonment porting documentary evidence, which showed the con- of the imperative requisite of even handed justice pro- claimed by Chief Justice Marshall more than a century version of the courthouse into a “counting house.” Cahill ago, that the judge must be “perfectly and completely pointed to Manton’s glaring conflicts of interest, failures independent with nothing to influence or control him, to recuse himself and greed. While not excusing those but God and his conscience.”24 ■ litigants who bribed the judge, he said he saw them as the

32 | March/April 2010 | NYSBA Journal 1. He wrote a significant dissenting opinion in the obscenity litigation insti- 13. Frank Murphy was eventually appointed as Associate Justice of the gated by Bennett Cerf concerning the book Ulysses by James Joyce, United States Supreme Court, and he recused himself when Manton filed a petition for a writ v. One Book Entitled Ulysses, 72 F.2d 705 (2d Cir. 1934). Judges Learned Hand of certiorari to his Court. and Augustus Hand held the book was not obscene. Manton voted to ban it. 14. Bacon, a knighted man of letters, philosopher, and former Member of 2. Dewey had previously served as Chief Assistant U.S. Attorney for the Parliament, in 1621 was accused of corrupt dealings in chancery suits, i.e., Southern District of New York. He was District Attorney from 1938 to 1941, accepting bribes from litigants who appeared before him. He did not defend followed by service as New York’s governor from 1943 to 1954. He was twice himself and sent in a confession of guilt to the charges, although he later wrote defeated as Republican candidate for U.S. president. he was not swayed by the gifts he received. 3. Murray I. Gurfein eventually was appointed a judge in the U.S. District 15. Cahill eventually became a founding partner of the firm of Cahill, Court for the Southern District of New York. His decision in that court in the Gordon. Pentagon Papers case was ultimately adopted by the U.S. Supreme Court. 16. 70 F.2d 641 (2d Cir. 1934). This case was heard before Judges Manton, Thereafter he was elevated to sit in the Court of Appeals for the Second Circuit. Learned Hand and Chase. When this case was re-heard by the Second Circuit See United States v. N.Y. Times Co., et al., 328 F. Supp. 324 (S.D.N.Y. 1971). in 1939, after Judge Manton’s conviction, the new panel consisted of Judges 4. Frank S. Hogan succeeded Dewey as New York County District Attorney, Learned and Augustus Hand and Robert P. Patterson. This time, the judges serving from 1942 to 1973. were unanimous in siding with Judge Learned Hand’s dissent, and Judge Manton’s 1934 opinion was overturned. 107 F.2d 944 (2d Cir. 1939). 5. Lawrence E. Walsh subsequently became a judge in the U.S. District Court for the Southern District of New York. He gave up his judgeship to serve as 17. 83 F.2d 217 (2d Cir. 1936), aff’d, 301 U.S. 216 (1937). Deputy U.S. Attorney General (1957–1960). After leaving this public service he 18. John W. Davis was the unsuccessful Democratic candidate for president of became a partner in Davis, Polk. the United States in 1924. He was the founding member of the firm of Davis, 6. 16 F. Supp. 936 (E.D.N.Y. 1936). Polk, a distinguished and frequent advocate before the Supreme Court and an attorney with a peerless reputation. 7. Schick Dry Shaver, Inc. v. Dictograph Prods. Co., 89 F.2d 643 (2d Cir. 1937). 19. Alfred E. Smith, the unsuccessful candidate for president in 1928, was 8. 86 F.2d 613 (2d Cir. 1936). New York governor (1919–1920 and 1923–1928). 9. Id. 20. Clark had previously been the dean of Yale Law School. 10. Indeed, Levy and his firm represented American Tobacco in the pending 21. Stone had previously been the dean of Columbia Law School. appeals in the two stockholders’ suits. 22. Manton was released after 19 months’ incarceration. 11. Rogers v. Hill, 60 F.2d 109 (2d Cir. 1932); Rogers v. Guaranty Trust Co. of N.Y., 60 F.2d 114 (2d Cir. 1932), rev’d on other grounds, 288 U.S. 123 (1933). 23. 309 U.S. 664 (1940). 12. Compare Manton’s resignation with the refusal of Illinois Governor Rod 24. 107 F.2d 834, 846 (2d Cir. 1939). R. Blagojevich, who was impeached and convicted by the Illinois State Senate on January 29, 2009, by a vote of 59-0. NEW YORK STATE BAR ASSOCIATION

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NYSBA Journal | March/April 2010 | 33 JODY ERDFARB ([email protected]) is an Associate in the Health Care Department at the law firm of Wiggin and Dana, LLP. Her practice involves advising a wide range of health care providers, as well as assist- ing research organizations and sponsors with regulatory matters. She received her law degree with honors from the University of Connecticut School of Law.

JEFFREY GALLER, D.D.S. ([email protected]) is a general dentist practicing in Brooklyn. He is Chairman of the Second District Dental Society Peer Review and Quality Assurance Committee and has authored many articles in dental journals. He is a Master in the Academy of General Dentistry, a Fellow in the International Congress of Oral Implantologists, a Fellow in the American Society of Dentistry for Children, and a member of the American Academy of Cosmetic Dentistry.

JUDITH SHUB, Ph.D. ([email protected]) is Assistant Executive Director for Health Affairs of the New York State Dental Association. Dr. Shub provides administrative support for the NYSDA Peer Review and Quality Assurance Program. She received a doctorate in sociology from the Graduate School of the City University of New York. Some information provided in this article is excerpted from the Peer Review Manual of the New York State Dental Association Council on Peer Review and Quality Assurance. The article was prepared with the assistance of NYSDA’s Dr. Judith Shub, Assistant Executive Director, Health Affairs; Mr. Lance Plunkett, General Council; and Dr. Steven Damelio, Chairman of the Council on Peer Review and Quality Assurance.

Peer Review An Alternative Dispute Resolution Process to Dentistry Malpractice Claims By Jody Erdfarb, Jeffrey Galler and Judith Shub

atients who are dissatisfied with their dental treat- article will focus on various aspects of Peer Review as an ment will often contact an attorney to discuss alternative dispute resolution process. Ptheir grievances and explore litigation. On many The NYSDA’s Peer Review process results in the expe- occasions, however, attorneys will decide not to accept ditious and conclusive resolution of a patient and dentist a potential client because either the alleged misconduct dispute. The process is administered by dentist-volun- did not rise to the level of malpractice or the amount of teers in each of the NYSDA’s 13 geographic components, recoverable damages would be too small compared to the under the auspices of the NYSDA’s Board of Governors potential costs of litigation. In such instances, an attorney and its Council on Peer Review and Quality Assurance. may suggest that the client seek relief through the Peer Of the many benefits to the Peer Review process, the Review process of the New York State Dental Association service is free to the parties, and all cases are handled in (NYSDA), which represents over 70% of the licensed den- a timely manner. tists practicing in New York State. A group of impartial dentist-volunteers oversee and Peer Review is available to patients treated by a den- conduct the Peer Review process. These individuals tist who is a member of the NYSDA. The association does conduct mediation in the initial stages to allow the den- not offer Peer Review to patients who received treatment tist an opportunity to offer the patient a full or partial in Article 28 clinics,1 in dental schools, or in situations refund. If the parties cannot reach a settlement during where treatment was provided under the auspices of the the mediation, a hearing will then be conducted. At the state Medicaid program. Other alternatives exist for those hearing, three members of a Peer Review committee patients to resolve their complaints. Accordingly, this will review the patient’s records and perform individual

34 | March/April 2010 | NYSBA Journal clinical examinations, which will serve as a basis for When a Patient Should Pursue Peer Review their findings. The hearing is more informal than, say, Consider the following example: A patient named John a trial. For example, the parties do not cross-examine Smith contacts his attorney regarding what he believes a witness or introduce outside witnesses at a hearing. to be improperly performed dental work. Dr. Mary Jones While each party may be represented by counsel, the par- apparently fabricated, inserted and cemented in place a ties’ attorneys do not act in a formal representative role fixed prosthesis (non-removable bridge) for Smith. The other than to advise their clients. In addition, the Peer agreed-upon fee for the dental treatment was $5,000, of Review process is kept confidential. Confidentiality is which Smith has paid $2,000. Smith is, however, unhap- protected by the “Agreement to Submit to Peer Review” py with the bridge, claiming that the bite is uncomfort- (“Agreement”) – the cornerstone of the process – as well able, the aesthetics are unacceptable, and the crowns fit as N.Y. Education Law § 6527. poorly, which has caused gum inflammation. Smith not Finally, Peer Review provides an alternative to liti- only refuses to remit the outstanding $3,000 balance, but gation for resolving patient complaints about dental also would like Dr. Jones to refund his $2,000 deposit, treatment, placing the decision in the hands of impar- so that he can have another dentist redo the bridge in tial professionals rather than in the hands of laypeople. a more acceptable manner. Dr. Jones refuses to refund Findings are based on objective assessments of treatment the deposit and demands payment of the outstanding as opposed to the biased opinions of “expert witnesses” $3,000 balance, claiming that her work was satisfactory selected to advocate for a side. and that the patient’s demands are simply a pretext for non-payment. The Legal Context for Peer Review The attorney would like to help Smith but has some The NYSDA has operated the Peer Review and Quality reservations. Does Smith have the time and fortitude Assurance program since the early 1980s. It is conducted for protracted litigation? Will the client present well to a as a form of arbitration and is therefore protected by jury? Does the relatively small amount involved justify Article 75 of the Civil Practice Law and Rules. The pro- the time and expense that would be expended on filings, cess is established through a standard contractual agree- depositions, written discovery, motions, expert reviews, ment between the parties. Accordingly, the parties enter and trial? If this litigation assessment leads the attorney to a contract, the Agreement, that sets up and steers the decline the case, the attorney can still advise the disgrun- review process. The contract includes waivers of both tled patient that his grievance may be settled through the parties’ right to subsequently sue the other party on the Peer Review mechanism. The attorney can feel comfort- same set of facts. Also, the contract expressly stipulates able in assuring the patient that the complaint would be that the parties will select the Peer Review process as the handled courteously, fairly, and expeditiously. method for resolving the patient’s complaints and agree In 2008, over 90% of Peer Review complaints were to accept the findings of the Peer Review committee as resolved within 60 days. The majority of Peer Review the final resolution to the dispute. cases resulted in findings in favor of the patient. Central to Peer Review is the concept that the standard dentist-patient relationship is itself a type of service Initiating a Peer Review Complaint contract. Pursuant to that service contract, the dentist The first step is to request a copy of the Agreement. A agrees to provide appropriate care consistent with the patient may obtain this contract from the New York State prevailing standards for treatment. In return, the patient Dental Association in Albany or from one of its compo- agrees to cooperate with the course of treatment and pay nent branches throughout New York State (see sidebar the fees charged. As a result, when a Peer Review com- on page 37). mittee determines that the dentist has failed in his or her obligation to provide appropriate care that is consistent The Agreement to Submit to Peer Review with the prevailing standards for treatment, the dentist The NYSDA urges patients to consult with an attorney forfeits the fees for that treatment. The process does not prior to signing the Agreement, since it is a legal, binding authorize arbitrary financial awards for failing to per- contract between the patient and dentist. Among other form adequately. provisions, the parties agree to authorize the NYSDA Long ago, a New York state court upheld the legiti- to resolve their dispute, agree to participate in the Peer macy of the process in Zupan v. Firestone,2 which was Review, and agree to waive any other legal process relat- affirmed by the New York State Court of Appeals. The ing to the issue. The Agreement clearly explains that NYSDA has modified the process in the years since Zupan Peer Review dispute resolution considers only the fees to address concerns under Article 75. Specifically, the charged by the treating dentist and does not provide for NYSDA has sought to make Peer Review more like bind- punitive or compensatory damage awards. ing arbitration so that it would be upheld and enforced The patient initiates the Peer Review process by sub- in court, if necessary. mitting an Agreement to the component dental society

NYSBA Journal | March/April 2010 | 35 representing the geographic area where treatment was However, under the tolling rule (known as the continu- rendered. The patient fills out the “Patient’s Statement” ous treatment doctrine) the two-and-a-half-year limita- section of the document, which asks for the patient’s and tion begins accruing on the very last day of treatment. For dentist’s names, addresses, and phone numbers; the dates example, if a patient had a bridge placed on September 1, and nature of the treatment provided; the fees and out- 2009, which was later chipped and then repaired by the standing balance involved; the specific complaint regard- dentist on January 1, 2010, the patient would have two- ing the treatment provided; and the patient provides and-a-half years from the January 1, 2010, treatment date copies of any pertinent bills, receipts, and dental records to file a complaint. from any subsequent treating dentists. The patient is Additional reasons to deny a request for Peer Review also required to provide an authorization to the treating include the following: dentist to release a copy of the patient’s clinical records 1. The patient refused to place the outstanding fee and radiographs to the Peer Review committee, and an balance in the component dental society’s escrow authorization for the committee to resolve the patient’s account pending the outcome of Peer Review. complaint by evaluating the patient’s records and per- 2. The dispute between the patient and dentist does forming a clinical examination. not relate to the appropriateness of the treatment The signed Agreement is mailed to the local dental or the quality of care. society, where the date of receipt is officially recorded. 3. Either party has commenced a legal action against This date is significant because it helps determine if the the other party that is pending or has been dental treatment in question was within the two-and-a- resolved by settlement or court order. half-year statute of limitations for Peer Review. The den- 4. The patient has submitted a complaint about the tal society then sends the Agreement to the dentist who same treatment to the New York State Education is the subject of the complaint. The dentist then has two Department’s Office of Professional Discipline, weeks to complete and sign the “Dentist’s Statement” and the complaint has not been dismissed on portion of the document and submit it to the dental jurisdictional grounds. society, along with a copy of the patient’s records and all 5. The disputed treatment was performed under relevant billing and payment information. the auspices of the New York State Medicaid Non-compliance is not an option. All NYSDA mem- program, or in a hospital, dental school, clinic, or bers are required to participate in Peer Review, comply other Article 28 facility. with the requests of the Peer Review committees, par- In 2008, approximately 20% of the signed Agreements ticipate in the Peer Review process, and abide by the that the NYSDA received were not suitable for Peer decision of the Peer Review committees. A member who Review for these and various other reasons. fails to comply would be deemed guilty of a serious Once the chairman has determined that a patient ethics violation and be subject to disciplinary proceed- complaint is reviewable, the chairman will make certain ings. that he or she has all the necessary information and documentation. Then, the chairman will assign a member of Determining a Patient’s Peer Review Eligibility the committee to attempt to mediate the dispute. If the The component chairman of the Peer Review and Quality mediation is unsuccessful, the case will then proceed to Assurance committee studies the signed documentation a hearing. and determines if the case is eligible for Peer Review. In some cases requests for Peer Review are denied. For The Role of an Attorney During Peer Review example, the dentist is not a member of the NYSDA at While neither party needs to retain legal representation the time the Agreement is signed; or, more than two- for the Peer Review process, the parties may, neverthe- and-a-half years have elapsed since the date of the dental less, choose to do so. If an attorney is retained, the attor- treatment. Dental treatment has clearly defined points ney will receive all correspondence between the parties, where treatment is considered to have been completed. may confer with his or her client during the mediation For instance, in orthodontics, treatment is completed at process, and may be present at the Peer Review hearing. the time a patient’s braces are removed and retainers are If either party retains counsel, the mediation cannot be provided. In endodontics, root canal therapy is deemed resolved until the represented party has had an oppor- complete when the canals are filled. In prosthetic den- tunity to discuss an offer with his or her attorney. In fact, tistry, treatment is completed when a bridge is inserted in the mediator will urge a represented party to consult with the patient’s mouth and cemented in place. Accordingly, his or her attorney before deciding whether to settle the if a dentist cemented a bridge on January 1, 2007, and the dispute or proceed to a hearing. dental society received the signed Agreement from the Attorneys may attend the Peer Review hearing, but patient on August 1, 2009, the statute of limitations would they may neither field questions from a party nor ask have expired, and the case would not be reviewable. questions. Attorneys may, however, direct their ques-

36 | March/April 2010 | NYSBA Journal The New York State Dental Association Component Dental Societies (effective 2009)

6 E. 43rd St., Fl. 11 212-573-8500 Ms. Ellen Gerber New York County Dental Society New York, N.Y. 10017 Executive Director (Manhattan) [email protected] Second District Dental Society 111 Ft. Greene Pl. 718-522-3939 Mr. Bernard Hackett (Brooklyn-Staten Island) Brooklyn, N.Y. 11217 Executive Director [email protected] Third District Dental Society 950 New Loudon Rd. 518-782-1428 Ms. Kathleen Moore (Albany, Columbia, Greene, Ste. 400 Executive Director Rensselaer, Sullivan, Ulster) Latham, N.Y. 12110 [email protected] Fourth District Dental Society 981 Route 146 518-371-0224 Dr. G. Gleason (Clinton, Essex, Franklin, Fulton, Clifton Park, N.Y. 12065 Executive Director Hamilton, Montgomery, Saratoga, [email protected] Schenectady, Schoharie, Warren, Washington) Fifth District Dental Society 6323 Fly Rd., Ste. 3 315-434-9161 Ms. Amy Pozzi (Herkimer, Jefferson, Lewis, Madison, E. Syracuse, N.Y. 13057 Executive Director Oneida, Onondaga, Oswego, [email protected] St. Lawrence) Sixth District Dental Society 55 Oak St. 607-724-1781 Dr. Alfonso Perna (Broome, Chemung, Chenago, Binghamton, N.Y. 13905 Executive Director Cortland, Delaware, Otsego, Schuyler, [email protected] Tioga, Tompkins) Seventh District Dental Society 255 Woodcliff Dr. 585-385-9550 Ms. Lori Bowerman (Cayuga, Livingston, Monroe, Fairport, N.Y. 14450 Executive Director Ontario, Seneca, Steuben, Wayne, [email protected] Yates) Eighth District Dental Society 3831 Harlem Rd. 716-995-6300 Ms. Vicki Prager (Allegany, Cattaraugus, Chautauqua, Buffalo, N.Y. 14215 Executive Director Erie, Genesee, Niagara, Orleans, [email protected] Wyoming) Ninth District Dental Society 364 Ellwood Ave. 914-747-1199 Ms. Alice Flanagan (Dutchess, Orange, Putnam, Hawthorne, N.Y. 10532 Executive Director Rockland, Westchester) [email protected] Nassau County Dental Society 377 Oak St., #204 516-227-1112 Ms. Gabriele Libbey (Nassau) Garden City, N.Y. 11530 Executive Director [email protected] Queens County Dental Society 86-90 188th St. 718-454-8344 Mr. William Bayer (Queens) Jamaica, N.Y. 11423 Executive Director [email protected] Suffolk County Dental Society 1727 Veterans Memorial 631-232-1400 Ms. Jane Meslin (Suffolk) Hwy., #200 Executive Director Islandia, N.Y. 11749 [email protected] Bronx County Dental Society 3201 Grand Concourse 718-733-2031 Dr. Robert Yeshion (Bronx) Bronx, N.Y. 10468 Executive Director [email protected] tions to and through the chairman, who is undoubtedly Peer Review hearing, mediation leads to neither adverse permitted to respond to an attorney’s questions about the nor positive findings regarding the merits of the clinical proceedings. care. The mediator assigned to the case will contact both The Mediation Process parties by telephone, ascertain the total fees involved in In the mediation process, the parties can resolve the the treatment under review, and offer to help settle the dispute before undergoing an actual hearing. Unlike a dispute. Under no circumstances, however, will the medi-

NYSBA Journal | March/April 2010 | 37 ator attempt to determine the validity of the patient’s ger exists. When the patient has received more than one complaint. When the mediator informs the parties that distinct type of treatment, however, at times the panel only a Peer Review hearing can result in what might be may reach a decision partially in favor of the dentist and referred to as an “all-or-nothing” decision regarding the partially in favor of the patient. For example, if a patient’s treatment under review, meaning that the dental treat- disputed treatment involved a removable denture and a ment either was or was not acceptable, the parties are filling, the panel might determine that the denture pro- then often amenable to the mediation process and arrive cedure was acceptable, while the filling procedure was at a compromise. unacceptable. In many instances during mediation, the dentist will If the hearing committee determines that the treat- offer the patient a full or partial refund in an effort to ment under review was inappropriate or did not con- settle the matter rather than proceed to a full-blown hear- form to standards of acceptable treatment, the committee ing. If the dentist offers the patient a full refund, the case may require the dentist, in addition to refunding the is closed. If the dentist offers the patient a partial refund, patient’s payment, to complete specific continuing educa- however, the patient may choose to accept or refuse the tion courses within a given time frame. offer. Often, the patient will make a counteroffer, and the Within two weeks after the hearing, the committee mediator will then try to help the parties find an accept- will send a formal decision letter to the parties. This letter able compromise. includes details of the case such as the parties involved, In 2008, of the over 200 cases accepted for Peer Review, the dates of treatment, the patient’s specific complaint, approximately 50% were settled in mediation. the issues in dispute, the resolution of the case, the findings, the outcome based on those findings, and the The Peer Review Hearing instructions for appealing the decision. When a dispute cannot be resolved through media- In 2008, approximately 60% of all Peer Review hear- tion, the Peer Review committee schedules a hearing to ings resulted in a decision in favor of the patient. evaluate the quality of care or the appropriateness of the treatment under review. Hearings are conducted in a The Appeal Process “neutral” location – that is, in a private, non-party dental Either party may appeal the Peer Review decision within office. Those present at the hearing include the patient, the 30 days of the date of the decision letter. Members of the dentist, a lay observer, a panel of three general, non-party New York State Council on Peer Review and Quality dentists who are members of the standing Peer Review Assurance review the appeals. The members will grant committee, and a presiding chairman. The chairman does an appeal on only the two following grounds: (1) the not vote or participate in the discussion at the hearing but discovery of new significant and material evidence that merely officiates, ensuring that everyone present under- could not have been available at the time of the hearing stands the proceedings, the NYSDA’s procedures are fol- or (2) the commission of a significant procedural irregu- lowed, and the parties’ rights are protected. In the event larity. a complaint involves a dental specialist, dentists who are comparably board certified in the same specialty will be Conclusion appointed as the three panel members. The Peer Review process involves many additional issues At the hearing, both parties are given the opportunity that are beyond the scope of this article, ranging from to review all the records, present their case-in-chief, and multi-dental procedure cases to the effect of a collec- answer any questions posed by the panel members as tion action the dentist commences against the patient to they attempt to understand the patient’s complaint and situations where the dentist is a NYSDA member in one the history of the dental treatment. Each panel member geographic component of New York State and treated the will review all the records scrupulously, question both patient in a different component. parties, and conduct an independent clinical examination For additional information, attorneys and patients are of the patient. urged to contact the New York State Dental Association After the hearing, the committee will dismiss the par- located at 20 Corporate Woods Blvd., Suite 602, Albany, ties and reach a majority decision in closed session. The New York 12211, or one of the component branches chairman then writes a report on the proceeding and the throughout New York State. ■ findings, which serves as the foundation of the decision letter sent to the parties, and closes the case. 1. N.Y. Public Health Law art. 28. These clinics are certified by the New York State Health Department. 2. 91 A.D.2d 561, 457 N.Y.S.2d 43 (1st Dep’t 1982), aff’d, 59 N..Y.2d 709, 463 The Peer Review Decision N.Y.S.2d 439 (1983). The panel’s decision, in favor of either the dentist or the patient, is binding. Once the case proceeds to a Peer Review hearing, the possibility of a partial refund no lon-

38 | March/April 2010 | NYSBA Journal The latest NYSBA Monograph Series © 2009 Business/Corporate Mortgages Law and Practice Authors: Philip C. Kilian, Esq.; Christopher P. Daly, Esq. Authors: Michele A. Santucci, Esq.; Professor Leona Beane; 2009-2010 • 246 pp. • PN: 41389 Richard V. D’Alessandro, Esq.; Non-Mmbr Price: $80 / Mmbr Price: $72 Professor Ronald David Greenberg 2009-2010 • 860 pp. • PN: 40519 Non-Mmbr Price: $80 / Mmbr Price: $72 New York Residential Criminal Law and Practice Landlord-Tenant Law Authors: Lawrence N. Gray, Esq.; and Procedure Honorable Leslie Crocker Snyder; Authors: Honorable Gerald Lebovits; Damon Honorable Alex M. Calabrese P. Howard, Esq.; Victor S. Faleck, Esq. 2009-2010 • 160 pp. • PN: 406499 2009-2010 • 366 pp. • PN: 41699 Non-Mmbr Price: $80 / Mmbr Price: $72 Non-Mmbr Price: $80 / Mmbr Price: $72 Debt Collection and Probate and Administration Judgment Enforcement of Decedents' Estates Author: Paul A. Peters, Esq. Authors: Jessica R. Amelar, Esq.; 2009-2010 • 222 pp. • PN: 42389 Arlene Harris, Esq. Non-Mmbr Price: $80 / Mmbr Price: $72 2009-2010 • 188 pp. • PN: 419699 Non-Mmbr Price: $80 / Mmbr Price: $72 Elder Law Real Estate Transactions— and Will Drafting Commercial Property Authors: Jessica R. Amelar, Esq.; Author: Christina Kallas, Esq. Bernard A. Krooks, Esq. 2009-2010 • 344 pp. • PN: 40379 2009-2010 • 318 pp. • PN: 40829 Non-Mmbr Price: $80 / Mmbr Price: $72 Non-Mmbr Price: $80 / Mmbr Price: $72

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Free shipping and handling within the continental U.S. The cost for shipping and handling outside the continental U.S. will be added to your order. Prices do not include applicable sales tax. To purchase the complete set of 16 Monographs, or for more information Call 1-800-582-2452 or visit us online at nysba.org/pubs Mention Code: PUB0718 THOMAS A. DICKERSON is an associate justice of the Appellate Division, Second Department of the New York State Supreme Court. Justice Dickerson is the author of Class Actions: The Law of 50 States (Law Journal Press, 2010) and “Consumer Law 2009: The Judge’s Guide to Federal and New York State Consumer Protection Law,” available at www.courts.state.ny/courts/9jd/ taxcertatd.shtml.

New York State Consumer Protection Law and Class Actions in 2009: Part I By Thomas A. Dickerson

n 2009, the area of consumer protection law underwent fees would have on the amount of initially available a number of developments, which included changes credit.” On the respondent’s motion to dismiss based Iin the area of consumer class actions. The first part of upon preemption by TILA, the New York Court of this article reviews recent consumer protection law cases, Appeals held that “Congress . . . made clear that, even while Part II, which will appear in a subsequent issue of when enforcing the TILA disclosure requirements, states the Journal, reviews several consumer class action cases could use their unfair and deceptive trade practices acts reported during 2009. to ‘requir[e] or obtain[] the requirements of a specific disclosure beyond those specified.’” The Court pointedly Preemption and the Truth in Lending Act noted that “Congress only intended the [Fair Credit and The federal government has enacted a number of laws to Charge Card Disclosure Act] to preempt a specific set of protect consumers, and the Truth in Lending Act (TILA) is state credit card disclosure laws, not states’ general unfair especially significant. As with many federal statutes, the trade practices acts.” question as to whether federal consumer laws preempt their state counterparts often arises. The Arbitration Clause and the Class Action Waiver In People v. Applied Card Systems, Inc.,1 the New York Another significant consumer issue concerns whether State Attorney General alleged that Cross Country Bank, credit card consumers, for example, can waive their class a purveyor of credit cards to “consumers in the ‘sub- action right. This is one of those fine-print problems prime’ credit market,” had “misrepresented the credit where lay consumers, who are unsophisticated in the art limits that subprime consumers could obtain and . . . of contractual language, are unaware of the terms of a failed to disclose the effect that its origination and annual credit card agreement until it is too late.

40 | March/April 2010 | NYSBA Journal In re American Express Merchants’ Litigation2 involved applied to business gifts which involve a consumer trans- a consumer antitrust class action which raised a matter action. The appellate court also restored demands for of first impression. In noting that state courts frequently injunctive and declaratory relief, as well as allowing the enforce mandatory arbitration clauses contained in com- plaintiffs to plead unjust enrichment and money had and mercial contracts based on “the strong federal policy in received as alternative claims to the breach of contract favor of arbitration,” the Court of Appeals addressed cause of action. In an earlier 2006 decision in the same the enforceability of an arbitration clause featuring a action, the appellate court had held that federal law did class action waiver. Such a waiver is simply “a provision not preempt these claims.10 which forbids the parties to the contract from pursuing anything other than individual claims in the arbitral Mid-Term Price Increases and the Question forum.” The Court held that the class action waiver in the of Class Certification American Express Card Acceptance Agreement could not Decided in 2006, Emilio v. Robison Oil Corp.11 concerned be enforced in this case because to do so would grant the electricity consumers who commenced an action assert- company “de facto immunity from antitrust liability by ing claims for breach of contract, breach of the covenant removing the plaintiffs’ only reasonably feasible means of good faith and fair dealing, and violation of GBL § 349. of recovery.”3 According to the consumers, the defendant company unilaterally increased the price of electricity after it entered Gift Cards and the Threat of Dormancy Fees into fixed price contracts with the consumers. On the In three class actions, consumers challenged the imposi- plaintiff’s motion to amend the complaint, the Appellate tion of dormancy fees by gift card issuers.4 Gift cards, a Division, Second Department held that the “plaintiff multi-billion-dollar business,5 may eliminate the head- should also be allowed to assert his claim under [GBL] ache of choosing a perfect present, but the recipient might § 349 based on the allegation that the defendant unilater- find some cards a pain in the neck. Many cards come with ally increased the price in the middle of the renewal term enough penalizing fees and restrictions, many of which of the contract.” Three years later in the same action,12 the are hidden and covert, that a consumer might be better appellate court certified the class of electricity consum- off giving a check. The most troubling penalties include ers; even though the “defendant may have issued three expiration dates, maintenance fees, and dormancy fees.6 similar contract versions at different times,” a court was While dormancy fees have faced legal scrutiny in recent permitted to establish “sub-classes based on the particu- years, it would not be surprising if consumers took aim lar contract at issue.”13 at other penalties. In Lonner v. Simon Property Group, Inc.,7 consum- Bait Advertising in the World of Computer Financing ers challenged gift card dormancy fees of $2.50 per Advertising is built on a system of acceptable consumer month, seeking damages under three causes of action: manipulation. The law, however, has recognized that a (1) breach of contract, (2) violation of General Business line is crossed where a company’s advertisements misrep- Law § 349 (GBL), and (3) unjust enrichment. On the resent its intentions and, in essence, bait consumers into defendant’s motion to dismiss, the Appellate Division, making a purchase and then leaving them without the Second Department found that the plaintiffs had pleaded promised warranty, rebate or services. In Cuomo v. Dell, sufficient facts to support causes of action for a violation Inc.,14 the New York State Attorney General commenced of GBL § 349 and a breach of contract claim based upon a special proceeding alleging violations of Executive Law a breach of the implied covenant of good faith and fair § 63(12) and GBL Article 22-A with respect to the respon- dealing. dent’s business practices of selling, financing and servic- Next, in Llanos v. Shell Oil Co.,8 consumers challenged ing its computers. On the respondent’s motion to dis- gift card dormancy fees of $1.75 per month, asserting miss, the trial court held that Dell’s advertisements offer claims for breach of contract, breach of the implied cov- promotions “such as free flat panel monitors . . . include enant of good faith and fair dealing, unjust enrichment, offers of very attractive financing, such as no interest and and violation of GBL § 349. On the defendant’s motion no payments for a specified period [limited to] well quali- to dismiss the complaint as preempted by GBL § 396-I fied customers . . . ‘best qualified’ customers [but] nothing and for failing to state a cause of action, the Second in the ads indicate what standards are used to determine Department held that GBL § 396-I did not preempt the whether a customer is well qualified.” The attorney gen- Llanos claims and remitted the matter for consideration eral submitted evidence indicating that as few as 7% of of the merits of each cause of action. New York applicants qualified for the promotions. In fact, Finally, Goldman v. Simon Property Group, Inc.9 involved most applicants, if approved for credit, were offered very another group of consumers who challenged dormancy high interest rates with revolving credit accounts ranging fees. The Second Department held that no private right from 16% to 30% interest and not the prominently adver- of action existed under GBL § 396-I and that CPLR 4544 tised promotional interest deferred. In deciding that such

NYSBA Journal | March/April 2010 | 41 conduct was deceptive and improper bait advertising, of insurance coverage can equally fall victim to unlaw- the court determined that Dell had manipulatively adver- ful deceptive consumer practices. In 2005, the Appellate tised its financing promotions in a manner that attracted Division, Third Department held in Elacqua v. Physicians’ prospective customers even though the company had no Reciprocal Insurers,18 that when covered and uncovered intention of actually providing the advertised financing insurance claims give rise to a conflict of interest between to the majority of interested consumers. an insurer and its insured, the insured is entitled to independent counsel of his or her choosing at the expense of Advertising and Rotten Apartments the insurer. A few years later,19 in allowing the plaintiff to A number of former tenants, whose leases were termi- amend her complaint asserting a violation of GBL § 349, nated because of water intrusion and mold, commenced the appellate court addressed the issue where a “partial several class actions that had been removed from federal disclaimer letter sent by defendant to its insureds . . . court to state court. In Sorrentino v. ASN Roosevelt Center, failed to inform them that they had the right to select LLC,15 the plaintiffs alleged that the defendant property independent counsel at defendant’s expense, instead owners “continued to market and advertise their apart- misadvising that plaintiffs could retain counsel to pro- ments and continued to enter into new lease agreements tect their uninsured interests at [their] own expense.” and renew existing lease agreements even after discover- The court found disturbing the fact that the defendant

Purchasers of insurance coverage can equally fall victim to unlawful deceptive consumer practices.

ing the water infiltration and mold-growth problems.” continued to send similar letters to its insureds, failing The problem was that the defendants did so without to inform them of their rights, even after the court’s deci- disclosing the problems to potential renters. Accordingly, sion in 2005. Acknowledging that the “threat of divided the plaintiffs claimed that they had suffered both finan- loyalty and conflict of interest between the insurer and cial and physical injury as a result of the defendants’ the insured is the precise evil sought to be remedied,” deceptive acts. The court found that the plaintiffs had the court therefore held that the defendant’s failure to pleaded the elements necessary to state a claim under inform plaintiffs of their right to counsel under the insur- GBL § 349.16 ance agreement, together with the fact that the defendant failed to provide conflict-free representation, constituted The Story of Timberpeg Homes and harm within the meaning of GBL § 349. False Advertising In DeAngelis v. Timberpeg East, Inc.,17 the plaintiffs pur- The Case of Craftsman Tools chased a “Timber Frame Home” and expected the defen- In Vigiletti v. Sears, Roebuck & Co.,20 consumers alleged dant to deliver the building materials and construct the that defendant Sears marketed its Craftsman tools as home on their property. The defendant provided the for- “Made in USA” although “components of the products mer but not the latter. As a result, the plaintiffs brought an were made outside the United States as many of the action, alleging “that Timberpeg engaged in consumer- tools have the names of other countries, e.g., ‘China’ or oriented acts by representing itself, through an advertise- ‘Mexico’ diesunk or engraved into various parts of the ment . . . as the purveyor of a ‘package’ of products and tools.” In dismissing the GBL § 349 claim, the trial court services necessary to provide a completed Timberpeg found that the plaintiffs had failed to establish an actual home.” According to the plaintiffs, such language and injury. Specifically, the court highlighted the fact that the conduct were false and misleading since Timberpeg was plaintiffs had failed to set forth allegations that they had only responsible for delivering the building supplies. The paid an “inflated price for the tools . . . that [the] tools appellate court held that the plaintiffs stated causes of purchased . . . were not made in the U.S.A. or were decep- action under GBL §§ 349 and 350 against the defendants. tively labeled or advertised as made in the U.S.A. or that the quality of the tools purchased were of lesser quality The Misleading Insurer than tools made in the U.S.A.” The trial court also found An insurance agreement is a purchased product just like that the plaintiffs did not allege the element of causa- any other good despite the fact that a consumer might tion, stating in particular that the “plaintiffs have failed not always view insurance in such a manner. Purchasers to allege that they saw any of these allegedly mislead-

42 | March/April 2010 | NYSBA Journal ing statements before they purchased Craftsman tools.” 10. Goldman v. Simon Prop. Group, Inc., 31 A.D.3d 382, 383, 818 N.Y.S.2d 245 (2d Dep’t 2006). Finally, the court determined that the plaintiffs did not establish territoriality since there were “no allegations 11. 28 A.D.3d 417, 813 N.Y.S.2d 465 (2d Dep’t 2006). that any transactions occurred in New York State.” ■ 12. Emilio v. Robison Oil Corp., 63 A.D.3d 667, 880 N.Y.S.2d 177 (2d Dep’t 2009).

1. 11 N.Y.3d 105, 863 N.Y.S.2d 615 (2008). 13. See also People v. Wilco Energy Corp., 284 A.D.2d 469, 728 N.Y.S.2d 471 (2d Dep’t 2001) (“Wilco solicited contracts from the public and, after entering into 2. 554 F.3d 300 (2d Cir. 2009). approximately 143 contracts, unilaterally changed their terms. This was not a 3. See Weinstein Korn & Miller, New York Civil Practice, CPLR, Section private transaction occurring on a single occasion but rather, conduct which 901.06[4], Lexis-Nexis (2d ed. 2009). See also Tsadilus v. Providian Nat’l Bank, 13 affected numerous consumers. . . . Wilco’s conduct constituted a deceptive A.D.3d 190, 786 N.Y.S.2d 468 (1st Dep’t 2004) (motion to stay class and enforce practice. It offered a fixed-price contract and then refused to comply with its arbitration agreement enforced. “The arbitration agreement is enforceable even most material term – an agreed-upon price for heating oil.”). though it waives plaintiff’s right to bring a class action”); Raneri v. Bell Atl. 14. Cuomo v. Dell, Inc., 21 Misc. 3d 1110(A), 873 N.Y.S.2d 236 (Sup. Ct., Albany Mobile, 304 A.D.2d 353, 759 N.Y.S.2d 448 (1st Dep’t 2003) (“given the strong Co. 2008). public policy favoring arbitration . . . and the absence of a commensurate policy favoring class actions, we are in accord with authorities holding that a 15. 579 F. Supp. 2d 387 (E.D.N.Y. 2008). contractual prescription against class actions . . . in neither unconscionable nor 16. In Sorrentino v. ASN Roosevelt Ctr., LLC, 588 F. Supp. 2d 350 (E.D.N.Y. 2008) violative of public policy”). and Ventimiglia v. Tishman Speyer Archstone-Smith Westbury, L.P., 588 F. Supp. 4. See Lonner v. Simon Prop. Group, Inc., 57 A.D.3d 100, n.1, 866 N.Y.S.2d 239 2d 329 (E.D.N.Y. 2008), the U.S. District Court remanded all of the class actions (2d Dep’t 2008) (“Virtually all gift cards have expiration dates and are subject to back to Nassau County Supreme Court. Earlier the court had found that the a variety of fees, including maintenance fees or dormancy fees” (see Gift Cards New York Court of Appeals would recognize an independent cause of action 2007: Best and Worst Retail Cards: A Deeper View of Bank Cards Doesn’t Improve for medical monitoring, and that the plaintiffs “have stated a rational basis for Their Look, Office of Consumer Protection, Montgomery County, Maryland, at exposure to a disease-causing agent and there is a rational basis for their fear www.montgomerycountymd.gov)). of contracting the disease.” 5. See Alterio, Store Closings Deal Blow to Holiday Gift-Card Sales, J. News, Nov. 17. DeAngelis v. Timberpeg E., Inc., 51 A.D.3d 1175, 858 N.Y.S.2d 410 (3d Dep’t 27, 2008, p. 1 (“The National Retail Federation estimates that gift-card sales 2008). will dip 5% this holiday season to $24.9 billion, down from $26.3 billion last 18. 21 A.D.3d 702, 800 N.Y.S.2d 469 (3d Dep’t 2005). year.”). 19. Elacqua v. Physicians Reciprocal Insurers, 52 A.D.3d 886, 860 N.Y.S.2d 229 (3d 6. Consumer Reports, Gift-Card Gotchas, Dec. 2006, p. 8. Dep’t 2008). 7. 57 A.D.3d 100, 866 N.Y.S.2d 239 (2d Dep’t 2008). See also Sims v. First Consumers Nat’l Bank, 303 A.D.2d 288, 289, 750 N.Y.S.2d 284 (1st Dep’t 2003). 20. Vigiletti v. Sears, Roebuck & Co., No. 2006-05286, 2573/05 (Sup. Ct., Westchester Co. Sept. 23, 2005) (Rudolph, J.), aff’d, 42 A.D.3d 497, 838 N.Y.S.2d 8. 55 A.D.3d 796, 866 N.Y.S.2d 309 (2d Dep’t 2008). 786 (2d Dep’t 2007). 9. 58 A.D.3d 208, 869 N.Y.S.2d 125 (2d Dep’t 2008). Are You feeling overwhelmed? The New York State Bar Association’s Lawyer Assistance Program can help.

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

NEW YORK STATE BAR ASSOCIATION LAWYER ASSISTANCE PROGRAM

NYSBA Journal | March/April 2010 | 43 METES & BOUNDS BY MICHAEL RIKON

MICHAEL RIKON ([email protected]) is a partner at Goldstein, Goldstein, Rikon & Gottlieb, P.C., New York City. He received his B.S. from the New York Institute of Technology, his J.D. from Brooklyn Law School, and a Masters of Law from New York University Law School.

The Highest and Best Use Concept in Condemnation

n a condemnation trial, the prop- In Johnson v. State of New York,3 the of ownership, and unity of highest erty to be awarded just compensa- court noted that to establish the pro- and best use. Ition must be valued on the highest priety of valuation of the parcels as one In condemnation, the portion of and best use of the property, even economic unit, claimants must show property that has unity of owner- though the owner may not have been that the subject parcels are contigu- ship, contiguity, and unity of use, utilizing the property to its fullest ous and that there is unity of use and the three conditions that establish potential when it was condemned. ownership.4 the larger parcel for the consid- The leading case for this proposi- Joint control over the subject parcels eration of severance damages in tion is the Court of Appeals decision In is enough to establish the party’s unity most states. In federal and some re Town of Islip (Mascioli).1 In Mascioli, of ownership for valuation purposes.5 state cases, however, contiguity is Judge Wachtler stated: Joint control arises from the relation- sometimes subordinated to unitary Ordinarily, the potential uses the ship of the fee holders despite differ- use. court may consider in determining ences in actual title.6 value are limited to those uses per- As stated in Guptill Housing Corp. v. Valuation of a Wetlands Parcel mitted by the zoning regulations at State of New York, As noted above, since property must the time of taking. When, however, it would be contrary to common be valued on its highest and best use, there is a reasonable probability of sense and the rule of just com- an owner is not precluded from offer- rezoning, some adjustment must pensation to conclude anything ing evidence that zoning and other be made to the value of the proper- but that the two tracts should be restrictions in effect on title vesting ty as zoned. An increment should treated as one for the purposes could with reasonable probability be be added to this amount if there is of severance damages in this par- challenged. a reasonable probability of rezon- ticular case. . . . [T]he paramount Take, for example, the valuation of a ing to a less restrictive category.2 constitutional requirement of just parcel subject to wetlands regulations. The Court affirmed a value based compensation must be allowed to If a regulatory agency refuses to issue on the probability of rezoning resi- prevail over the niceties of legal a permit allowing the property to be dentially zoned land to business. It is title advanced by the State.7 developed, the regulatory restriction important to note that the standard The law of this state follows a fun- will be deemed to effect the property’s employed to find the market value damental appraisal principle known economic destruction. was “a knowledgeable buyer,” which as the rule of the larger parcel. The As the Court of Appeals held in means a sophisticated realtor with a Dictionary of Real Estate Appraisal, Spears v. Berle,8 full understanding of the methods and Fourth Edition, contains two defini- a land use regulation – be it a means required for potential develop- tions for “larger parcel,” as follows: universally applicable local zon- ment. In condemnation, the tract or tracts ing ordinance or a more circum- of land which are under the benefi- scribed measure governing only All Parcels Are Valued as cial control of a single individual certain designated properties – is One Economic Unit or entity and have the same, or an deemed too onerous when it “ren- Individual adjoining parcels of real integrated, highest and best use. ders the property unsuitable for property must be valued together. The Elements for consideration by the any reasonable income, productive reason is, if the parties controlled all appraiser in making a determina- or other private use for which it the contiguous land the combined par- tion in this regard are contiguity, or is adapted and thus destroys its cels would have greater development proximity, as it bears on the highest economic value, or all but a bare potential and value. and best use of the property, unity residue of its value.”9

44 | March/April 2010 | NYSBA Journal The N.Y. Environmental Conser- Once such an opinion is obtained, $16,300. It then found an adjusted vation Law (ECL) provides that if a the real estate appraiser is supposed to value of $504,847 for the land without property owner is aggrieved by the value the property “as regulated.” restrictions. It applied a 75% increment denial or limited issue of a permit, the Obviously, if the parcel is not totally to $488,547 ($504,847 less the residen- owner may challenge by a CPLR Article restricted, i.e., it is not 100% wetlands tial value of $16,300) or $366,410 and 78 proceeding. If the court finds that but only partially mapped as wetlands added back the recreational value of the state Department of Environmental or adjacent wetlands, the wetlands $16,300 to arrive at $382,700 as total Conservation (DEC) commissioner’s expert may offer the opinion that a just compensation. determination constitutes a taking, the certain number of homes could be built court may either set aside the deter- on the property. If that is the case, the Reasonably Probable mination or require that the parcel appraiser should value the property by A highest and best use must be estab- be taken under the power of eminent indicating a fair market value for each lished as reasonably probable. A claim- domain.10 buildable unit. ant does not have to prove every aspect If the parcel is condemned before But, if the wetlands expert indicates of the highest and best use in the near any application for a permit is filed, that the property presently cannot be future absolutely. But a use that is the value of the property must be developed, the property is to be valued no more than a speculative or hypo- adjusted accordingly by the condem- as fully restricted under state DEC reg- thetical arrangement in the mind of nation court because there existed the ulations, and that no allowance DEC the claimant may not be accepted as probability of securing a valuable envi- would grant would produce a reason- the basis for an award.15 For example, ronmental permit.11 able economic return. a vacant parcel of land may be valued The formula of how to value a The appraiser then appraises the as a subsidized housing site provided condemned wetlands parcel was clari- property as regulated. This “regulated there is a proper showing of probabil- fied by Honorable Abraham G. Gerges value” is to be determined by using ity that a subsidy would have been sitting for Supreme Court, Richmond whatever can be established by other granted, and upon proof that such County, in In re City of New York (Staten sales of wetlands or other undevelop- a project could or would have been Island Bluebelt System – Phase 2).12 In the able parcels. constructed in the foreseeable future. decision, the court distilled the avail- Once the appraiser analyzes these The fact that governmental activity able caselaw to provide the following “restricted” sales, the expert indicates a is required to achieve a use does not formula: A claimant must utilize a wet- value of the subject parcel as “restrict- necessarily disqualify the use from lands expert to provide an opinion that ed by the regulation.” Added to this consideration.16 will set forth factual details pertaining figure is an increment over and above The standard employed in a con- to the conclusion that no economically the property’s restricted market value, demnation case is that of a prudent viable use of a former owner’s land representing the property’s enhanced real estate investor. A claimant is never exists. In the court’s words “to estab- value to a knowledgeable buyer in limited to what the owner has done to lish that the wetlands regulations, as light of the reasonable probability of its property. Rather, the law allows a applied to the subject property, are a successful constitutional court chal- condemnee to have its property val- confiscatory in nature,” a claimant has lenge. ued on the basis of what could be rea- to show by “‘dollars and cents’ evi- The increment added to the restrict- sonably accomplished by a prudent, dence that under no use permitted by ed value must be supportable. A case knowledgeable real estate investor. the regulation under attack would the cited by Justice Gerges, Berwick v. State The Court of Appeals has stated in property be capable of producing a of New York,13 indicated that “the law Keator v. State of New York:17 reasonable return; the economic value, follows the realities of the marketplace, It is the general rule that “just com- or all but a bare residue of the econom- which are that a knowledgeable buyer pensation” is to be determined by ic value, of the parcel must have been would adjust his purchase price to reference to the fair market value destroyed by the regulations at issue.” offset the cost in time and money for of the property at the date of tak- Therefore, one starts with an opin- applying for a permit and challenging ing, and that the fair market value ion from an expert that, in the expert’s its denial in court as confiscatory.” is the price for which the property opinion, the regulated property has no The best explanation is to provide, would sell if there was a willing reasonable return or economic value. as an example, the decision made buyer who was under no compul- This opinion must be based on an by the Appellate Division, Second sion to buy and a willing seller analysis of comparable wetlands par- Department in Estate of Berwick v. State under no compulsion to sell. In the cels and how those parcels fared when of New York.14 determination of the fair market making an application for a permit In Estate of Berwick, the court found value, the condemnee is entitled from the DEC, or, some other factual that property designated 100% tidal to have the appraisal based on the predicate. wetlands had a recreational value of highest and best available use of

NYSBA Journal | March/April 2010 | 45 the property irrespective of wheth- the land based on its joiner with be based on a parcel’s highest and er he is so using it. That is, con- other property, with the value best use in a just compensation claim, sidering the best use to which the based on the probability, not as an while a tax certiorari determination property could reasonably be put, accomplished fact. will require an inquiry as to the prop- what is its fair market value?18 • In Walker v. State of New York,25 the erty’s condition and ownership on What the courts are talking about court found the property should the applicable valuation date.29 The is a probability of change, which is be valued based on the reason- “Cardinal Principle of Valuation” in a always allowed as the predicate of a able probability that the property tax reduction case has been interpreted valuation. Such consideration is not owner could have purchased a to require valuation of improved prop- limited to highest and best use or zon- right of way across a former rail- erty according to its existing use, not ing changes. Some other examples in road right of way. a potential one contemplated in the condemnation cases include the fol- • In Bero v. State of New York,26 it future.30 lowing: was held that value of the prop- • In In re City of New York [149th erty could be proved based upon Highest and Best Use – Avenue],19 the court found that the reasonable probability of Well Founded in Appraisal Practice there was a reasonable probabil- securing a permit to mine gravel The concept of highest and best use ity of the adjacent upland owner from the banks of an adjoining is well founded in appraisal practice. securing title to the lands in the river. Regardless of whether property has bed of a former creek, which no • In Erie Lackawanna Railway Co. v. been condemned, in valuing any par- longer existed, since the proof State of New York,27 the court held cel of real estate an appraiser must was that the city had been grant- that, although a railroad held title make a highest and best use of the ing such deeds. under the Railway Act of 1850, land analysis as though the property • In In re City of New York,20 a devel- under which it received only a were vacant and as though it were oper, in the midst of an assem- permanent easement for railway improved. This is an essential part of blage to build a nursing home, purposes during the continuance the valuation process.31 was stopped short of the full of its corporate existence and on The definition provided by the assemblage by the condemnation abandonment, the title reverted Appraisal Institute is “the reasonably proceeding. The court valued the back to the original owners, the probable and legal use of vacant land property on the basis of a reason- possibility of the abandonment or an improved property that is physi- able probability that he would was so remote and speculative cally possible, appropriately support- have completed his assemblage. that the possibility of the reverter ed, and financially feasible and that • In Schwartz v. State of New York,21 had no value and the entire results in the highest value.”32 the court valued the property on award went to the railroad. The Uniform Standards of Pro- the basis of a reasonable probabil- fessional Appraisal Practice, common- ity that there would be a waiver Highest and Best Use Does Not ly referred to as USPAP, adopted by of a restrictive covenant affecting Apply to Tax Assessment Cases the Appraisal Standards Board of the the use of the property. The concept of highest and best use Appraisal Foundation sets forth the • In Campbell v. State of New York,22 does not apply to tax assessment cases. following: the court valued the property, New York’s constitution sets two dif- [W]hen necessary for credible long used pursuant to a revocable ferent standards for valuation. The assignment results in develop- license, on the basis of the reason- cardinal principle of property valua- ing a market value opinion, an able probability of the continua- tion for tax purposes set forth in the appraiser must: (a) identify and tion of the non-revocation of that state constitution is that the property analyze the effect of existing land license. “[a]ssessments shall in no case exceed use regulations, reasonably prob- • In Zappavigna v. State of New full value.”28 Whereas, in a con- able modifications of such land use York,23 the court held that, having demnation, Article 1, § 7 of the New regulations, economic supply and received preliminary approval for York State Constitution provides that demand, the physical adaptability his subdivision plan, it was rea- “[p]rivate property shall not be taken of the real estate, and market area sonably probable that the owner for public use without just compensa- trends; and (b) develop an opinion would receive final approval and tion.” In condemnation, the property of the highest and best of the real the land would be used as a resi- must be valued at its highest and best estate. Under (b), USPAP noted dential subdivision. use regardless of actual use. To put in a comment that “an appraiser • In Central School District No. 1 of it another way, the big difference in must analyze the relevant legal, Town of Smithtown,24 the court condemnation and tax certiorari cases physical, and economic factors to held that it was proper to value is that the law requires the award to the extent necessary to support the

46 | March/April 2010 | NYSBA Journal appraiser’s highest and best use 5. Guptill Holding Corp. v State of N.Y., 23 A.D.2d 22. 39 A.D.2d 615, 331 N.Y.S.2d 75 (3d Dep’t 1972), conclusion(s).”33 434, 437, 261 N.Y.S.2d 453 (3d Dep’t 1965). aff’d, 32 N.Y.2d 952, 347 N.Y.S.2d 205 (1973). 6. Di Bacco v State of N.Y., 46 A.D.2d 461, 363 23. 186 A.D.2d 557, 588 N.Y.S.2d 790 (2d Dep’t N.Y.S.2d 121 (3d Dep’t 1975). 1992). Conclusion 7. 23 A.D.2d at 437. 24. 78 Misc. 2d 60, 355 N.Y.S.2d 947 (Sup. Ct., Every property valued in a condem- 8. 48 N.Y.2d 254, 422 N.Y.S.2d 636 (1979). Suffolk Co. 1974) (Lazar, J.). nation proceeding must be valued on 9. Id. at 262. 25. 33 N.Y.2d 450, 354 N.Y.S.2d 626 (1974). its highest and best use, which valu- 10. ECL § 25-0404 for Tidal Wetlands. See ECL 26. 33 A.D.2d 88, 305 N.Y.S.2d 309 (3d Dep’t 1969), § 24-0705 for Freshwater Wetlands. aff’d, 27 N.Y.2d 977, 318 N.Y.S.2d 505 (1970). ation can also consider a reasonable 11. Chase Manhattan Bank, N.A. v. State of N.Y., 103 27. 38 A.D.2d 463, 330 N.Y.S.2d 700 (4th Dep’t probability of re-zoning or relief from A.D.2d 211, 479 N.Y.S.2d 983 (2d Dep’t 1984). 1972). other regulatory restrictions. Highest 12. Index No. 4012/04 filed July 27, 2007. 28. N.Y. Const. Art. XVI, § 2; N.Y. Real Property Tax Law § 301. and best use is not a static concept, 13. 107 A.D.2d 79, 486 N.Y.S.2d 260 (2d Dep’t but one that fluctuates pursuant to 1985). 29. Northville Indus. Corp. v. Bd. of Assessors of Town of Riverhead, 143 A.D.2d 135, 136, 531 N.Y.S.2d 592 14. 159 A.D.2d 544, 552 N.Y.S.2d 409 (2d Dep’t changes in market value, land use (2d Dep’t 1988). 1990). regulations and available engineering 30. Gen. Motors Corp. Foundry Div. v. Assessors of 15. Triple Cities Shopping Ctr., Inc. v. State of N.Y., 26 Town of Massena, 146 A.D.2d 851, 536 N.Y.S.2d 256 techniques. An appraiser must study A.D.2d 744, 272 N.Y.S.2d 207 (3d Dep’t 1966), aff’d, (3d Dep’t 1989); see also Adirondack Mountain Reserve 22 N.Y.2d 683, 291 N.Y.S.2d 801 (1968). and find the highest and best use of a v. Bd. of Assessors of Town of N. Hudson, 99 A.D.2d property regardless of its actual use at 16. In re Shorefront High Sch., 25 N.Y.2d 146, 303 600, 471 N.Y.S.2d 703 (3d Dep’t), aff’d, 64 N.Y.2d 727, title vesting. ■ N.Y.S.2d 47 (1969). 485 N.Y.S.2d 744 (1984). 17. 23 N.Y.2d 337, 296 N.Y.S.2d 767 (1968). 31. Appraisal Institute, The Appraisal of Real 1. 49 N.Y.2d 354, 426 N.Y.S.2d 220 (1980). 18. Id. at 339 (citations omitted). Estate 60 (12th ed. 2001). 2. Id. at 360–61. 19. N.Y.L.J., Oct. 20, 1971, p. 17, cols. 6, 7 (Sup. Ct., 32. Id. at p. 305. Queens Co.) (Tessler, J.). 3. 10 A.D.3d 596, 781 N.Y.S.2d 764 (2d Dep’t 33. USPAP Standards Rule 1-3, U-17-18, (2008–2009 2004). 20. 40 A.D.2d 597, 335 N.Y.S.2d 945 (1st Dep’t ed.). 1972). 4. See also Erly Realty Dev. v. State of N.Y., 43 A.D.2d 301, 303–304, 351 N.Y.S.2d 457 (3d Dep’t 21. 72 A.D.2d 490, 426 N.Y.S.2d 100 (3d Dep’t 1974). 1980). NYSBABOOKS Consumer Bankruptcy Second Edition Consumer Bankruptcy, Second Edition provides practitioners with an integrated explanation of consumer bankruptcy from both debtor and creditor perspectives. It also includes the most recent changes to the Federal Rules of Bankruptcy Procedure, effective December 1, 2009, as well as links to official websites where the latest developments may be found. The second edition provides invaluable official and procedural forms as well as relevant bankruptcy statutes. Especially useful to New York practitioners is the inclusion of the local bankruptcy rules for all four federal districts.

The second edition of Consumer Bankruptcy has undergone substantial reorganiza- tion reflecting the comprehensive changes in the Bankruptcy Law in recent years. The Bankruptcy Abuse Prevention and Consumer Protection Act, enacted in 2005, was the reason for many of the substantive changes to consumer bankruptcy law, particularly as it pertains to individuals seeking relief from debt under either chapter 7 or chapter 13 of AUTHOR the Bankruptcy Code. Susan Jensen-Lachmann, Esq. Consumer Bankruptcy, Second Edition is authored by Susan Jensen-Lachmann who previously co-authored the first edition of this book with the Honorable Jeremiah E. Berk. INFO & PRICING Susan Jensen-Lachmann is counsel to the Committee on the Judiciary of the U.S. House of Representatives, where she is primarily responsible for bankruptcy and commercial leg- PN: 40456 | 2010 | 770 pages | looseleaf islation. Ms. Jensen-Lachmann is also the author of law review articles and contributed to NYSBA Members $125 various treatises on bankruptcy law and practice. Non-Members $170

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NYSBA Journal | March/April 2010 | 47 ATTORNEY PROFESSIONALISM FORUM

QUESTION FOR THE interests are protected, it seems that but it seems like it falls on deaf ears. Is NEXT ATTORNEY my neighbors fail to understand that there anything I need to do to protect I work for the other side. Needless my clients, as well as myself, when this PROFESSIONALISM FORUM: to say, this makes me uncomfortable, situation arises? especially in matters where the other Signed, I practice in a small town in upstate side does not hire counsel. I tell them Walking a Tightrope New York. I am a general practitio- that I do not represent their interests, ner and my one large client owns a local business that employs many local residents. Upon graduation from law The Attorney Professionalism Committee invites our readers to send in comments or alter- school, I hung out my shingle 15 years nate views to the responses printed below, as well as additional hypothetical fact patterns ago. Other than the three years I spent or scenarios to be considered for future columns. Send your comments or questions to: at law school, I have lived in town NYSBA, One Elk Street, Albany, NY 12207, Attn: Attorney Professionalism Forum, or all of my life. When working for my by e-mail to [email protected]. clients, including the local business This column is made possible through the efforts of the NYSBA’s Committee on Attorney owner, I frequently find myself on the Professionalism. Fact patterns, names, characters and locations presented in this column are opposite side of neighbors or people I fictitious, and any resemblance to actual events or to actual persons, living or dead, is entirely grew up with in contract negotiations, coincidental. These columns are intended to stimulate thought and discussion on the subject of small claims actions, collections mat- attorney professionalism. The views expressed are those of the authors, and not those of the ters and employment issues. While Attorney Professionalism Committee or the NYSBA. They are not official opinions on ethical I understand that I am an advocate or professional matters, nor should they be cited as such. and need to ensure that my clients’

NEW YORK STATE BAR ASSOCIATION

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48 | March/April 2010 | NYSBA Journal PRESENTATION SKILLS FOR LAWYERS BY ELLIOTT WILCOX

ELLIOTT WILCOX is a professional speaker and a member of the National Speakers Association. He has served as the lead trial attorney in over 140 jury trials, and teaches trial advocacy skills to hundreds of trial lawyers each year. He also publishes Trial Tips, the weekly trial advocacy tips newsletter .

The Power of the Pause

very single second of every single their next subject. This robs the audi- Look through the outline of your moment was filled with the sound ence of their chance to think about speech and find the moments where Eof his voice when you think back how your ideas could affect their lives. your audience needs to mentally upon it you have to admit you were just Pausing for a moment lets the audi- “breathe.” Notate your outline or make absolutely amazed I mean did this guy ence answer the question or wrap their a mental note, so that you purposely even need to breathe it didn’t seem like it minds around your message. pause at the appropriate moment. because he just kept going and going and A pause lets us laugh. Many going without regard to oxygen or audi- humorous moments in speeches are How to Pause ence expectations almost as if the thought lost because the speaker steps on the Most speakers underestimate the of pausing would let someone else start laugh line. It may take more than a amount of time they’ve paused. What talking and that would simply be unac- second for the audience to catch the seems like an eternity onstage may be ceptable for him so rather than pausing punch line – give them the chance to only two or three seconds. Here are for even a moment and letting you think laugh. three tips for holding the pause for about what he was saying he just kept talk- A pause helps us absorb ideas. maximum impact: ing and talking and . . . Your message travels at the speed of Count silently. “One Mississippi, Whoa, buddy! Stop! Take a breath! sound. Even in the largest of rooms, it two Mississippi, three Mississippi, four One of the most powerful tools in travels from your mouth to the listen- Mississippi . . .” and then resume. your presenter’s toolbox is the pause. er’s ears almost instantly. Sometimes, Look around. Make eye contact That brief moment of silence after a it takes a few extra seconds for the with three different members of the profound thought can sometimes be message to travel those last few inches audience before continuing. If you more important that the words them- of its journey, from the ear to the brain. look to members in the far corners of selves. If you pause for a moment, you will let the room, you’ll give the impression your message complete its journey. of making eye contact with everyone Why Pause? in the room. Imagine reading a newspaper without When to Pause Get uncomfortable. Pause for one a single comma, period, or paragraph There are several opportunities in second longer than feels comfortable. indentation – just word after word every speech where you might con- The pause won’t be nearly as long as after word. How far could you read sider pausing: you think it is. You’ll feel uncomfort- before losing your train of thought? • After you say something impor- able, but your audience won’t. A speech without any pauses feels the tant. Effective speakers know how to same way to the listener. • After you ask the audience a pause at the right moment. They hold Do you want the audience to question. their pauses long enough to let the remember your message? To under- • When you want the audience to audience think, feel or laugh. If you stand it? Do you want them to take the think. master the skill of pausing in your pre- message home, and incorporate it into • When you ask the audience to sentation, you will give your audience their lives? If so, you need to give them remember a moment in their past. the opportunity to walk away with a chance to stop and reflect upon what • After you say something funny. your message stuck firmly in their you’ve said. • When you hit an emotional heads. ■ A pause lets us think. Many speak- moment. ers ask their audiences rhetorical ques- • As a transition between points. tions, and then move immediately to

NYSBA Journal | March/April 2010 | 49 EMPIRE STATE COUNSEL

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

2009 Empire State Counsel Honorees

Erin Abrams Revital Bar-Or Jennifer Bougher Arun Chandra Ronnie Abrams Jason M. Barr Irina Boulyjenkova Alanna Chang Kerry Acocella Kelly Barrett James Bourdeau Daysun S. Chang Elizabeth Acorn Sidney Bashago Wills Lori Bowman Wayne Ren Chang Abraham Adler Leni D. Battaglia Sheldon W. Boyce Jacqueline Charlesworth Ramin Afshar-Mohajer David R. Bauer Catherine Megan Bradley Heather Chase Maame Y. Agyeiwaah Lauren Baer Andrew S. Bragin Javier Chavez, Jr. Emma L. Ahrens Christopher J. Baum Christopher Brancati Aditi Chawla Jennifer A. Ain Tatiana Bayeva Chava Brandriss Joyce Chen Nicklas A. Akers Lea Bays David L. Breau Theodore K. Cheng Kwaku A. Akowuah Peter T. Bazos Stephanie Lloyd Brill Carnell L. Cherry Andrea T. Al-Attar Christopher L. Beals Sara Brin Laura T. Ciaccio Robert Alderson Linda Bechutsky Andrew S. C. Brinkman Jessica Chiclacos Kara Alesi Melissa Beck Katherine Bristor Robert Chilstrom Taos C. Aliouat Brian L. Beirne Katherine Bromberg Lezlie Chimienti Yossi Almani Nicole Beliveau Katharine Brooker Sylvia Chin Joseph Allen Sarah E. Bell La Tonya Brooks Laura Chirita Daniel Altchek James Benkard Timothy Broshears Gregory Chludzinski Amy T. Alter Steven C. Bennett Kevin Brown Dannie Cho Aurora Alvarez-Calderon Michael Berengarten Nia M. Brown Margaret G. Cho Michelle K. Alves Peri A. Berger David Brown Charlene Choi Amanda Ambrose Rebecca Lynne Berkebile Stanley J. Brown Kevan Choset Rebecca Ambrose Linda Berkowitz Keri S. Bruce Margaret Chow Sonja Andersen Jordana T. Berman Andrew J. Bruck Bret T. Chrisope Amy Anderson Scott H. Bernstein Eileen Buholtz Yasmine Chubin Sarah C. Anderson Charles Berry Michael Bullerman Jean-Paul Ciardullo Christopher A. Andreucci Constance Beverley Donna Bunbury Matthew Cipolla Olivier Antoine Thomas E. Bezanson Joel Burgos Evan B. Citron Arthur M. Antonelli Nathaniel W. Birdsall Jacquelyn Burke James Clare Melissa T. Aoyagi Carl David Birman Jade Burns Margarita S. Clarens Michael Applebaum Abbie Gail Birnbaum Jason E. Burritt Bruce E. Clark Catherine Archibald Harold Birnbaum Christine Bustany Charity R. Clark Vivian Arias Timothy H. Birnbaum Allison Caffarone Jason Clark Stacy M. Armillei Alicja I. Biskupska Dana Cahan William Clarke, Jr. Naja Armstrong-Pulte Thomas C. Bivona Maria Amelia Calaf Margaret Clemens Joshua P. Arnold James I. Black, III Allison J. Cambria Stephen Coates Roberta Arnone Melissa Blades Danuscia Cameron Sabrina Cochet Andrea Ascher Clifford F. Blair Hugh Campbell Pamela Cogut Monica Asher Avital Blanchard Michael Canfield Joel Cohen Sarah Ashfaq Michael Blankenship Brian J. Capitummino Joseph C. Cohen Meaghan L. Atkinson Edward Blatnik Russell Capone Nathan Cohen Laura Lee Atkinson-Hope Ari B. Blaut Shana R. Cappell Roger A. Cohen Kurt Avarell Ellisha A. Blechynden Phil J. Caraballo-Garrison Saralyn M. Cohen Boris Ayala Gur Bligh Marylyn Carabello Charles Coleman Nina V. Ayer K. Adam Bloom Thomas A. Carnrike Anthony Paul Coles Aldo A. Badini Susan K. Bloom Tyler B. Carson Brian Collet Ross Bagley Paolo Cesar S. Boado Hunter Carter Dwight Collin Aaron G. Baily Bradley R. Bobroff Michael Carucci Miriam S. Colton Ashley Baker Daniel Boglioli Stephanie Case Andrea Conis Katrina Baker Barri Bogner Gideon Cashman Ciaran P.A. Connelly Adam D.J. Balfour Lisa Boikess Gina Castellano Sharon M. Connelly Aaron Ball Harvey Boneparth Elvira Castillo Julie A. Constantinides Anne Elizabeth Balla Beatrix Bong Janine Castorina Caroline Conway Michael A. Bamberger Kelly Booker Jennifer Catherine David Cook Sachin S. Bansal Kevin Boon Margaret A. Catillaz Michael A. Cooper Chiann Bao Rebecca Boon Norman Cerullo Alexis Coppedge Joseph Barden Karla Booth Domenic Cervoni Richard J. Corbi Lesley Bark Christina Bost-Seaton Ateesh S. Chanda Tracie Covey Inna Barmash Nicole Bouchard Nicholas Chandler Miles B. Cowan

50 | March/April 2010 | NYSBA Journal Elyse Jones Cowgill Hannine Drake Michael J. Fluhr Terence Gilroy Bridget Crawford Allen A. Drexel Nicole Foley Neil Gingold Jason Crelinsten Eyal Dror Robert D. Forbes Mark Ginsberg Brooke Cucinella David Dubrovsky Jessica Kate Foschi Noah Siskind Gitterman Randall J. Cude Carl Duffield Wilbur F. Foster, Jr. Tayo Giwa Erin Culbertson James P. Duffy, IV Joshua Thomas Foust Sabrina Glaser Matthew K. Cullen Rachael Dugan Melanie Fox Jessica Glass Candace Curran Helen Dukhan Nuri G. Frame Nathaniel M. Glasser William D. Currie Douglas Dunham Christopher Franciose Jeffrey Glekel Clare Cusack Aniya M. Dunkley Karen J. Francis Peter Glennon Tamika Cushenberry Robert Dunn Melissa B. Francis Joshua Glick Peter H. Cymrot Agnes Dunogue William Frank Derek Gluckman Meredith Dahl Peter Durant Aaron Frankel Florence J. Goal Laura K. D’Allaird Erin C. Durba Kevin Frankel Paul E. Godinez Michael Dallal Christopher Dwyer Daniel Franklin Erik Goergen Craig A. Damast Tanya Dwyer Timothy Franklin Diana Goff Laura Damerville David C. Dydek Erica Franzetti Kimberly Gold Harris Danow Michael Ead Alison S. Fraser Steven R. Goldberg Kristin M. Darr Ellen K. Eagen Dionne A. Fraser Daniel P. Goldberger Nithya Das David Eastlake Dharma Betancourt Frederick Hallie S. Goldblatt Deirdre Davis Theodore Edelman Amy Bowerman Freed Beth Goldman Robin M. Davis Tracey Ehlers Jana Freed Levi Y. Goldman Daniel De Souza Steven Eichel Bethany Freedman Gerald P. Goldsmith Anthony A. Dean Steven D. Einhorn Jessica L. Freese Mathew Goldstein Kelly DeAngelis Lawrence Elbaum Andrew Clark Friedman Marisa Gondrez Mary Dear Yusuf A. El Ashmawy Jennifer Freiman Humberto Padilla Gonzalez David DeCerbo Lawrence S. Elbaum Yonatan Frider Douglas E. Goodfriend Anthony Del Giudice Brad Elias Jacob I. Friedman Gary A. Goodman Jennifer L. Del Medico Gary Elias Jed W. Friedman Stephen Goodman John Delaney Selina Ellis Shauna K. Friedman Neill C. Gorman Jennifer L. Del Medico John Engel Stacey R. Friedman Carla Gorniak Robert Del Tufo Ralph M. Engel Scott Frimmer Neta-Li E. Gottlieb Robert G. DeLaMater Julia Errea Kelly Frisch Kathryn C. Goyer John Delaney Diana Escuder Christopher Froelich Meredith S. Grabill Patrick J. Dempsey George L. Espinal Brian L. Frye Seth Graham Wei Deng George Esposito, Jr. Heather E. Fuentes Anne Green Hilary Dengel Larissa A. Eustice Jennifer A. Fuerch Paul Bartholomew Green Penny Dentinger Daniel Evans John F. Fullerton, III Emily J. Green Mansi H. Desai Douglas H. Evans John Furfaro David Greenberg Carol Spawn Desmond Stacey O’Haire Fahey Jaimi Gaffe Andrew W. Greig Gillian M. Deutch Randy C. Fahs Michael V. Galante Thomas Greiner Peter Devonshire David Fainkich Melissa Galicia Elizabeth L. Grennan Veronica Di Camillo Fiona M. Fallon Ross Galin Brian J. Grieco Jennifer Diana Peggy Farber Maria Gall James Michael Griffin Dolores F. Dibella Jacqueline Farinella Joseph T. Gallagher Shannon Griffin Brendan Dignan Lauren Tabak Fass Kiera S. Gans Alyssa Grikscheit Anthony DiLello Alfred Fatale Ron E. Garber Daniel Grimm James R. Dillon Marcel Fausten Carlos A. Garcia Sebastian Grimm Justin M. Dillon Adam Joshua Fee Michael Garcia Kevin P. Groarke Paul Dimoh Meghan Fennelly Patrick Garcia Dana S. Gross Isabel K.R. Dische David J. Fernandez Renee Garcia Matthew R. Gross Morgan D. Ditch Christopher J. Fickes Joi Garner William P. Gross Andrew Ditchfield Nicole Fidler Stephanie L. Gase Zack Gross Anna Dodson Seth Fier Adam Gasthalter Joanna Grossman Michael G. Dolan Timothy J. Fierst Chelsea Gaughan Judd Grossman Jeffrey M. Donato Michael Paul FiggsGanter Brit L. Geiger Liana Grossman Peter Dopsch Elizabeth Figueira Andrew Gelfand Richard L. Gruenberger David M. Dore Jill Filipovic Raymond Geluz Samantha Grumman Anne B. Dotzler Fern Finkel Eli H. Gendloff Julia M. Guaragna Marguerite Dougherty Stuart Finkelstein Alison E. George Danli Guo Meghan K. Dougherty Robert Fiske Michael Gerard Emin Guseynov Curtis Douglas Maureen A. Fitzgerald Elisa P. Gerontianos Melissa Guseynov Brandon Loren Douglass Sheila Fitzpatrick Jason D. Gerstein Claire P. Gutekunst Betsy Kingsbury Dowd Timothy Fitzpatrick Julia Geykhman Eve Gutman David Doyaga Caitlin FitzRandolph Heather Giannandrea Lori S. Gutzman Timothy G. Doyle Leah Fletcher Evandro Gigante Jennifer Haber John D. Draghi Omri Flicker Anthony David Gill Alison Marie Haddock

NYSBA Journal | March/April 2010 | 51 Nicole Haff Rachel Hundley Benjamin Keller Daniel R. Lavoie Terence C. Hagerty Shiu-Kay Hung Elizabeth Kellerman Sheila Lavu Michael Haidas Melissa A. Hunt James E. Kellett Alan Lawn Sarah-Jayne Hall William Adam Hunt Felicia M. Kemp Joseph A. Lawrence Haroon H. Hamid Derek Huoth John B. Kennedy Candy M. Lawson Timothy Haney Daniel Hurteau Adrienne Kepner Jerome Lawton Derrick Hanna Emily Huters Kristin L. Keranen Bernice K. Leber Gregory T. Hannibal Marie-Louise M. Huth Yasin Keshvargar Scott Ledet Timothy Hanson Adam Hyatt Peter P. Khalil Allison Lee Kimberly Harbin Michael D. Hynes Svetlana Khvalina Antonia Lee Grace Harbour Robyn Ice Dennis D. Kiely Hsien-Jay Lee Anne Elizabeth Hardcastle Peter Idziak Julie Kim Michael Lee Sarah Hargrove Michelle Ingber Michael Kim Carmel Esther Gabbay Legault Robert F. Harmon Jason P. Isralowitz Minryu Sarah Kim Olivier A. Leger Adam Harris Elena Ivanovski Pauline S. Kim Michael Leichtling Allison G. Harris David S. Jachimowicz P. Stephen Kim Sara C. Lenet Barbara Harris Inna Nazarova Jackson Alison M. King John Leonti Brittany Harrison Lin Jacobsen Matthew King Eric M. Lerner Julie L. Hassman Shevani Jaisingh Amanda R. Kinney Stephen C. Lessard Naomi Hauptman Kevin L. Jayne Sarah Kirby Marissa Leung Sandra D. Hauser Tevia Jeffries Eliot Kirshnitz A. Thomas Levin Matthew H. Hawes Nellie P. Jennings Fritz Klantschi Laurie Levin Kevin M. Hayden Audrey A. Jeung Erica Klein Adina Levine Xin (Kevin) He Li Ji Jeffrey Klein Allison K. Levine Timothy P. Heaton S. Angela Jin Jessica Klein David M. Levine August W. Heckman, III Curtis Johnson Vladmir Kleyman Steven B. Levitsky Gerard A. Hefner Khelia Johnson Donald Klimoski, II Marcia Nan Levy Rebecca Heinegg Shawanna Johnson Lindsey T. Knapp Amy G. Lewis Justin Heinrich Sonya Johnson Jared Kneitel David A. Lewis Adam Jackson Heintz Zachary Johnson Elisha J. Kobre Davina Lewis Sina R. Hekmat Robert A. Johnston, Jr. Matan Koch Emma Lewis Michael A. Helfand Eric Jokinen David A. Kochman Nicole Leyton Peter Heller Douglas Jones John Koeppel Lin Li Douglas W. Henkin Tarnetta Jones Maxim A. Kogan Ying Ying Li Natalie Hennessy Jared Joyce-Schleimer Daniel F. Kolb Adam Libove Douglas Henry Christine Young Jung Jeffrey Kopczynski Edward B. Lieber Madeleine Hensler Amina M. Kaal Kerry-Leigh Kopke Leigh A. Lieberman Sylvia Heredia Robert J. Kafin Carmen Korehbandi Kyoko Takahashi Lin Cynara Hermes Chaim Z. Kagedan Cara M. Koss Kenneth Lind Theodore Hertzberg Daniel S. Kahn Jennifer Kostyu Eric D. Lindauer Marc Hess Shai Kalansky Nicholas Kovner Robert Lindholm Gregory Hessinger Matthew R. Kalinowski Arielle Koza Lisa A. Linsky William C. Heuer Kimberly Kalmanson Steven C. Krane Julia Lipez Tracy Richelle High Tara N. Kamble Jamie Krapf Matthew L. Lippert Monica P. Hill Anna G. Kaminska Joel I. Krasnow Michael D. Lissner Samantha Hill Lauren Kanter Aaron Krawitz Alicia C. Llosa Douglas Hillebrandt Brian Kao Martin Krezalek Bruce L. Listhaus Russell Hirschhorn Alex B. Kaplan Karin M. Kringen Fung-Lum Lo Sheldon I. Hirshon Elizabeth Itzkowitz Kaplan William F. Kroener, III Mindy F. Lo James Hobbs Gitta D. Kaplan Jonathan B. Kromberg Molly Logan Malcolm S. Hochenberg Joshua M. Kaplan Toni Ann Kruse Dana L. Loguidice Christine L. Hogan Stacy Kaplan Joshua Kurtz Christopher J. Lopata Michael P. Hogan Bachir P. Karam Joshua S. Kyle Victoria Loughery Steven H. Holinstat Jonathan M. Karas John LaBoda Adam L. Lounsbury Jeremiah Hollembeak Ryan Karben Mark B. Lakin Gwen J. Lourie Chris L. Holm Anastasios G. Kastrinakis Kristen Lam Gina S. Love Daniel P. Hope Cheryl L. Kates Nicholas Lam Stanton J. Lovenworth Lesley C. Horton Rene´ Kathawala Vanessa Lan Audrey Lu Michael D. Horwitz David Katz Abigail Struthers Langsam Lily Lu Theresa M. House Hali R. Katz Christopher Lanzalotto Karina B. Lubell Lauren Howard Alex Kaufman Diane Rose LaRocca Jonathan L. Lubin Erica Howard-Potter Aryeh L. Kaufman Rachelle L. LaRoche Diane Lucas David Howe Samir Kaushal Elizabeth Larsen Wendy Luftig Christopher Hower Alicia R. Kay Tenley I. Laserson Jennifer T. Lupfer Geoffrey Hu Ezgi Kaya Laura Lattman Jared Lusk Ellen C. Hu David Kaye Matthew Latterner Joanne Lynch Chieh Huang Bruce E. Kayle M. Joel Laub Sean P. Lynch Adam C. Hull Lydia A. Keaney Kenneth Laverriere Olga Lysenko

52 | March/April 2010 | NYSBA Journal Craig Lytle Daniel Medalie Kasra Nejatian Lauri Penn Frances Ma George E. Mehalchick Phoebe Nel Frank Penski Janice MacAvoy Gabriel Meister Peter A. Nelson Jonathan C. Pentzian William MacDonald Nicholas M. Menasche David Nemes Andrew J. Perel Barrett D. Mack Aaron Mendelsohn Richard A. Nessler Jared Perez Eric Mack Maya Nicole Menendez Jeffrey Newhouse Alynn C. Perl Jeremy Maco Grissel Mercado Andowah A. Newton Julian David Perlman Matthew R. Maddox Thomas Meriam Jonathan D. Newton Benjamin Petrosky Kathryn Grant Madigan Jeffrey Meriggi Leslie Nguyen Margaret K. Pfeiffer Obiamaka P. Madubuko Gregory Messer Orly Nhaissi Amy Jo Phillips Adam K. Magid Allison E. Meyer Stevan R.B. Nicholas Cristine I. Phillips Tania Magoon Catherine Meza John M. Nichols Victor N. Piacente Darren Mahone Anna Mihailova Roger Noble Grace Pickering Ian Mahoney Michael Miles Jordan Nodel Alan J. Pierce Bipul Mainali Brett Miller Lynette Nogueras-Trummer Carissa M. Pilotti Cristine Maisano Darren Miller Natalie Fleming Nolen Russell Pinilis Devasish Majumdar Mathew S. Miller Olivier Nolens Oscar N. Pinkas Shakhi Majumdar Pamela Miller Miles D. Norton Michelle Pironti Hazel T. Malcolmson Paula L. Miller Tasneem Novak Kathleen Pirozzolo Kamilla Mamedova R. Thomas Miller Robin Nunn David C. Pitluck Sigal P. Mandelker Sharon M. Mills Keith Nusbaum Julia Pizzi Abbey L. Mansfield Richard Mills-Robertson Amanda Nussbaum Marisa Pizzolato Janson Mao Jessica S. Milner Adam O’Brien Eileen Pizzuro Alexander Marcopoulos Alexandra Minkovich Cara O’Brien Ryan Plasky Jennifer Marcovitz Sara Miro James C. O’Brien Lisa R. Plush David Marden Michael Mishik Jerome F. O’Brien, Jr. Tanya Pohl Ruby Marenco Paul S. Mishkin Erin M. O’Callaghan John F. Pokorny Paul I. Margulies Anup K. Misra Alicia O’Connell Jason T. Polevoy Tal Marnin Courtney Mitchell Justin D. O’Connell Robert Pollak Nicole Marro Jayashree Mitra Victor Osaii Olds Joseph Polniak Johanna C. D. Martell Marianna Miyazaki Melissa Oliver Aryeh Portnoy Marco Martemucci Jason Moff Samuel O. Ollunga Natalie M. Porto Jonathan D. Martin Gillian Moldowan David C. Olstein David J. Posner Julie S. Martin Katherine S. Monge´ Casey O’Neill Emily Posner Kathleen M. Martin Veronica H. Montagna Emmett P. Ong Lee J. Potter, Jr. Samantha Martin Liza Montesano Dalit Oren Robert Potter Adriana M. Martinez John Moragne Michael Oropallo Jeri Powell Craig A. Masheb Michael J. S. Moran Sheryl L. Orr Jacob Press Gregory S. Maskel Paolo Morante Joseph J. Ortego Maxim Price Ann Mason David Mordkoff Charles B. Ortner Edward Puerta Christopher Mason Peter S. Morgan Erin Oshiro Clara Pugsley David Mason Jane M. Morril Nicole K. O’Sullivan Joel Pulliam Elihu S. Massel David Morris Monica Pa Joseph P. Pylman Shamiso Maswoswe Patrice Morrison Jennifer Pacella Elizabeth Qually Elizabeth D. Mattern Matthew B. Moses Nizan Geslevich Packin Dennis M. Quinio Hilde M. Matthee Matthew J. Moses Wenseng Pan Rizwan Qureshi Zachary Mattison Matthew S. Moses Alexandro M. Padres-Jimenez Matthew S. Raalf Daniel Matza-Brown Bennet Moskowitz Pamela S. Pagnani Sarah Sandok Rabinovici Edward F. McArdle Edward N. Moss Ryan Wesley Pakter Lauren J. Rabinowitz Daniel McAvoy Andrea S. Mparadzi Tiasha Palikovic Joseph R. Rackman Alexander McBride Michael Mueller Katherine Palm Connie Raffa Elizabeth Gallagher McCabe Jonathan A. Muenkel Chiahua Pan J. Andrew Rahl, Jr. Alice McCarthy Marjorie Mulhall Wesley Pang Shaila S. Rahman Andrew McClure Elisabeth Mullen Christos G. Papapetrou Leah Ramos Theodore A. B. McCombs Patrick Murdoch Matthew A. Parham Nishal R. Ramphal Jean McCreary Joseph A. Murphy Mark Parise Sarah Ranni Austin F. McCullough Liam G. B. Murphy Stephen Patrick Parrinello Robert R. Rasamny Shaleeya McFadden Martin Tomas Murphy Neeraj N. Patel Simon Rasin Michael E. McGovern Matthew B. Murphy Sonal Patel Matthew Rasmussen Colm McInerney Suzanne Murray Raisa E. Patron Brian S. Rauch Keith McIntire Catherine Nagel Eileen Patt Gary O. Ravert James P. McIntyre Gariel Nahoum Alexander B. Patterson Chandana T. Ravindranath Melanie McLaughlin Jason D. Navarino Ellyn Pearlstein Jordan T. Razza Melinda L. McLellan Marc Nawyn Julia Peck Robert W. Reeder, III William J. McNamara Amber M. Neal Barbara Pedersen Daniel Riemer Micah J.B. McOwen Stefan A. Neata Anita Pelletier Eric Reimer Jermaine McPherson Benjamin Needell Kenneth Steven Pelsinger David Reina Christopher Meade Wallace Neel Katherine C. Penberthy Melissa Reinckens

NYSBA Journal | March/April 2010 | 53 Sarah Reisman Mary Runkle Sean Shecter Jann Fishman Stern John Reiss Louis A. Russo Brad Eric Sheler Lisa M. Stern James Philip Renken Douglas Ryder Joseph C. Shenker Michael Sternhell Alexis Renvoize Matthew Rymer Peter J.W. Sherwin Rachel V. Stevens Nathalie Rey Martha Sabo H. Henry Shi Pantea Farhi Stevenson Miriam Reznik Aaron M. Sacks Michael J. Shiba Kyla Stewart Andrew E. Rice Alexander Saffi Matthew T. Shiels Spencer Stiefel Bradley Rice Jeanette K. Safi Tammy Shoranick Damion Stodola Frederic C. Rich Seema Saifee Jared Shure Jessica Stokes James P. Richards Alexis M. Sainz Anne V. Shutkin Benjamin D. Stone Daniel Richenthal Dana L. Salazar Sujata Sidhu Arthur D. Stout Brad Richter Gregory Sale John Siffert Brittan J. Strangways Brendan Riley Victor E. Salerno, III Hillel R. Silvera Collin J. Peng-Sue Christopher Rio Joseph J. Saltarelli Ari J. Silverman Benjamin Suksomnil Carlos E. Rivas Raya Salter Norma Silverman Mohammas Arsalan Suleman Melissa Rivero Lara Samet Terryl Simeina Andrew Sullivan Jinsoo Ro Randall Samson Alessandra Simons Jared S. Sunshine Kathy Robb Peter G. Samuels Charles S. Sims Daniel Sussner Kirsten Robbins Gregory Sandidge David C. Singer Katherine Swan Ray Robert Hugh Sandler Laura Sinrod Stephanie Swanson Ashley Roberts August Sangese Robert J. Sisson James Swire Dianne Roberts Goeffrey Sant Ron B. Sitton Ivan Taback William Robertson Mary Santanello Gavin R. Skene Ronald J. Tabak Christopher Robinson Timothy J. Santoli Matthew J. Skiff Yara Tajo John Gregory Robinson Thomas H. Santoro Michelle R. Skinner James Talbot Lisa Gisele Robinson Joe Sasanuma Stacey Slater David Tang Terence Robinson Ira M. Saxe James S. Sligar Niya Tang Stephen Rodner John C. Scalzo Randi-Lynn Smallheer Nicholas Tardif Airina Lynn Rodrigues Matthew Scarlato Nicholas Smallwood Robin C. Tarr Luis Rodriguez Madeleine Schachter Daniel Smit Courtney D. Taylor Nicholas E. Rodriguez Ira J. Schaefer Debra R. Smith Eleanor Taylor Alison Roffi Caryn G. Schechtman Douglas Smith Matthew Temkin Kristy M. Rogan Jeremy D. Schildcrout Gershom R. Smith David Tennant Courtney Rogers Larry P. Schiffer Joanna Frances Smith Catherine P. Tennant Mae Rogers Aaron J. Schindel Patrick J. Smith Hewan E. Teshome Kimberly P. Roller Sarah Schindler-Williams Toby W. Smith Christopher Thomas Jason Roomer Rachel Schipper Ruti Smithline Kimberly M. Thompson Christopher Rosado Daniel Schleifstein Lauren Smythe Sara Thompson Michael Rosado Adam W. Schneid Samuel Sneed Sarah E. Thorpe Andrew Rose Matthew S. Schneider David C. Snowden Leah Threatte Diane L. Rose Allison Schnieders John H. Snyder Roxanne Tingir Kristin J. Rosella Richard Schoenstein Erica Sollie Stela C. Tipi Adrienne Rosen Jonathan G. Schopf David M. Sollors Eric Tirschwell Joseph I. Rosenbaum Schuyler J. Schouten Aman Solomon Marc J. Tobak Lee Rosenberg Jennifer Schramm Justin Sommers Jeffrey J. Tolin Seth Rosenbloom Debra E. Schreck Jessica Sonenshein Jonathan Tompkins Maranda Rosenthal Jon Schumacher Marisa Sotomayor Kathleen Toombs Alison L. Ross Jane C. Schuster Allison Speigel Denise M. Tormey Justin Ross Allen Schwartz Katherine Spenner Katherine M.Tosch Paulette E. Ross Daniel J. Schwartz Jason M. Spitalnick Jeffrey Trachtman Julie A. Rosselot Kathleen Scott A. Nicole Spooner Craig Tractenberg Joshua Roth Jennifer R. Scullion Francesco Spreafico Aaron Trager Jonathan Rothberg Ryan D. Searfoorce Megan A. Sramek Carissa Trast Jena Rotheim R. Brian Seibert Rachel St. John Amy Tridgell Lance Rothenberg Steven J. Seidenfeld Jaime L. St. Peter Anna Triponel Jessica Rothstein Andrew Sein Andrea Stan Paresh Trivedi John Rousakis Rebecca Eve Sendker Jared Stanisci Jean E. Troast Patrice A. Rouse Ronald D. Sernau Benjamin F. Stapleton, III Erica Tso Marc A. Rozic Stefanie Honig Shabman Molly Stark Amy Turner Arie Rubenstein Jeena Shah Peter A. Steciuk George D. Turner Stephen W. Rubin Pritesh P. Shah Jeremy Steckel Julie Turner Leif I. Rubinstein Kimberly T. Shamsiddin Rachel Steinback Christopher Turney Charles Rubio Marc J. Shanker Alana Steinberg Eugenia Tzakas Erica L. Ruddy Boris Sharapan David B. Steinberg Wendy C. Unglaub Daniella Rudy Andrea Sharetta Debra Steinberg Joshua Urist Michael Rueckheim Richard T. Sharp Nicole M. Stephansen Michael J. Ushkow David M. Ruff Simon Sharpe Andrew Stephens Daniel Vaillant Gabrielle Ruha Robert Shaw Emily Stern Lynda Madera Vaillant

54 | March/April 2010 | NYSBA Journal Judith Vale Scott Wilcox Dorsey & Whitney LLP Pattison Sampson Ginsberg & Sam I. Valverde Allegra Wiles Duane Morris LLP Griffin Nicole Vanatko Margarett Mary Williams Fitzsimmons & Mack PC Paul Weiss Rifkind Wharton & Kevin VanLandingham Tara Williams Fried Frank Harris Shriver & Garrison LLP Nicole Vasquez Thomas B. Wilner Jacobson LLP Phillips Nizer LLP Jerry George Vattamala Jason H. Wilson Gibbons PC Proskauer Rose LLP Kyle M. Vaughn Angela Winfield Goodwin Procter LLP Pryor Cashman LLP Nicholas Venditto Margaret K. Winterkorn- Gorlick Kravitz & Listhaus LLP Reed Smith LLP Mario J. Verdolini Meikle Hancock & Estabrook LLP Ropes Gray LLP Megan K. Vesely Mamie V. Wise Handelman Witkowitz & Satterlee Stephens Burke & Zahida Virani David Wishengrad Levitsky Burke LLP Elizabeth Virga Jordan Wishnew Harris Beach PLLC Sedgewick Detart Moran & Alycia M. Vivona Veronica Wissel Hiscock & Barclay LLP Arnold LLP Leon Volchyok Shiri Bilik Wolf Hogan & Hartson LLP Seyfarth Shaw LLP Heather H. Volik Caryn Wolfe Hunton & Williams LLP Shearman & Sterling LLP Edward William Vopat Samuel E. Wolfe Jones Day LLP Skadden Arps Slate Meagher & Elena J. Voss Charles Oliver Wolff Katten Muchin Rosenman LLP Flom LLP Vi T. Vu Jeremy Wolk Kaye Scholer LLP Sonnenschein Nath Rosenthal Christine M. Wagner Jennie Woltz Kilpatrick Stockton LLP LLP Morris Waisbrot Giselle C. Woo Kramer Levin Naftalis & Steptoe & Johnson LLP Natalie Waites Shirley Woo Frankel LLP Sullivan & Cromwell LLP Jay W. Waks Summer Woodson Lankler Siffert & Wohl LLP Sullivan Keenan Oliver & Morgan Walbridge Gregory C. Wyckoff Latham & Watkins LLP Violando LLP Jane B. Waldman Thomas Wyler Lenehan & Dempsey LLP Tabner Ryan & Keniry LLP Marian Waldmann Elise A. Yablonski Levene Gouldin & Thompson Toombs & Meier LLP Gurpreet Singh Walia Kent Yalowitz LLP Troutman Sanders LLP Michael Walker Bryce J. Yoder Lissner & Lissner LLP Ward & Murphy LLP Natalie Walker Noriko Yokozuka Looper Reed & McGraw LLP Weinberg & Gerontianos Rosa Walker Kevin Younai Mayer Brown LLP White Case LLP Bradley Wallace Allison Young McCarter & English LLP Wilmer Hale LLP Marcus Li Wang Drew M. Young McDermott Will & Emery LLP Minyao Wang Stephen P. Younger Meyer Suozzi English & Brooklyn Volunteer Lawyers Qian (Lisa) Wang Diane Yu Klein PC Project Donna L. Wankmueller Jennifer Yu Milbank Tweed Hadley & Erie County Bar Association Joseph J. Wardenski Sunni Yuen McCloy LLP Volunteer Lawyers Project Paul Ware, Jr. Oded Zaluski Morgan Lewis & Bockius LLP Legal Services NYC-Bronx S. André Warner Marc A. Zametto Morrison & Foerster LLP Volunteer Legal Project, Inc. of Arielle Warshall-Katz Marlene Zarfes Nixon & Peabody LLP Monroe County Joanna F. Wasick Mark N. Zaruba O’Melveny & Myers LLP Henry Wasserstein Kareen Zeitounzian Orrick Herrington & Sutcliffee Brien Wassner Lucy Zhao LLP Melinda H. Waterhouse Leah Ziemba Patterson Belknap Webb & Violetta Watson Zhanna A. Ziering Tyler LLP Heather J. Webb Peter Zimroth Kristen Weil Kim Zinke Amy Weiner Richard Zobkiw Andrew J. Weiner Seth Zoracki Bruce Weiner Richard M. Zuckerman Michael Philip Weinstein Zachary J. Zweihorn William H. Weir In Memoriam William H. Weisman Law Firms Participating Jordan Weiss in the 2009 Empire State Jessica M. Weitzman Sherwin E. Allen Robert D. Joffe Brian Welsh Counsel Program Baldwin, NY New York, NY Rachel Wertheimer Arent Fox LLP Melissa Castro William H. McCabe Michel Werthenschlag Arnold & Porter LLP Bohemia, NY Weston, MA Jennifer Wetzel Baker & McKenzie LLP Robert Whalen, Jr. Brown Rudnick LLP Kenneth L. Cooper Maurice Ravage Janelle Whitaker Cadwalader Wickersham Clarence, NY New York, NY Claire S. White & Taft LLP Edward M. Fogarty Jan Michael Ryfkogel Debra Alligood White Cohen & Gresser LLLP Oyster Bay, NY North Haledon, NJ Earl P. White Crowell & Moring LLP Joseph E. White Davis Polk & Wardell LLP Patrick J. Gavin Alan G. Straus Thomas C. White Davis Wright & Tremaine LLP Carlsbad, CA New York, NY Robert Whitener Debevoise & Plimpton LLP Peter S. Gilfillan Craig Whitney Dewey & LeBoeuf LLP Buffalo, NY A. Marieke Widmann DLA Piper (US) LLP

NYSBA Journal | March/April 2010 | 55 LANGUAGE TIPS BY GERTRUDE BLOCK It is required that he hand the receipt He was base, he was bad, he was uestion: What do you think to the customer. (Not hands) mean. of the disturbing trend to use It is necessary that the employee be He had slyly inveigled her up to his would have to express a condi- Q polite to customers. (Not is) flat tion that did not occur, in a sentence To view his collection of stamps stating a condition contrary to fact? Finally, the subjunctive mode is tra- And he said as he hastened to put out Answer: Attorney Arthur M. Tasker, ditionally correct in “wish” clauses. the cat, who sent this question, referred to the When the phrase “I wish” begins a The wine, his cigar and the lamps: failure to use the (correct) subjunctive sentence, the verb in the following “Have some Madeira, M’dear mode, and it was clear that he regrets (dependent) clause must be in the past You really have nothing to fear the almost complete loss of the sub- tense to express present time and in the I’m not trying to tempt you, that junctive, both in speech and in writing. past perfect tense to express past time: wouldn’t be right The subjunctive mode was tradition- I wish I could attend. (Not can) You shouldn’t drink spirits at this time ally used as it appears (italicized) in I wish I were taller. (Not was) of night. the following sentences: I wish he had tried harder. (Not tried) Have some Madeira, M’dear If he had asked the proper question, Indo-European, the basis for practi- It’s very much nicer than beer. he would have received a favor- cally all European languages includ- I don’t care for sherry, one cannot able response. ing English, possessed a much more drink stout If I were you, I would take the job. complex grammatical system than we And port is a wine I can well do with- If I had been in the car, I would have have today; speakers of English have out been injured. “leveled” English grammar. Americans It’s simply a case of chacon à son gout. The rule that governs these three who teach English as a second lan- Have some Madeira, M’dear!” sentences represents one category of guage do not teach the subjunctive . . . the subjunctive: When a dependent mode. In fact, ironically, many of them “Have some Madeira, M’dear!” clause beginning with if expresses a are unaware that it exists, although The words seemed to ring in her ear. condition that is either contrary to fact, their French, German, and Spanish stu- Until the next morning she woke up in doubtful, or highly improbable, the dents still use the subjunctive, which bed past tense is used in the dependent their native languages have preserved. With a smile on her lips and an ache in clause to express present time (were); Attorney Tasker, now retired, her head And a beard in her earhole that tickled and the past perfect tense (had been) to received his J.D. from the Cardozo and said express past time. School of Law. He is old enough to “Have some Madeira, M’dear!” ■ That rule is the most common use have been taught the subjunctive mode of the traditional subjunctive mode, in elementary school, and he deplores GERTRUDE BLOCK is lecturer emerita at the and even it is ignored by many English its virtual disappearance. I can sympa- University of Florida College of Law. She is the speakers, although careful authors and thize. The subjunctive is complicated, author of Effective Legal Writing (Foundation journalists still observe it. But you can but its disappearance obliterated some Press) and co-author of Judicial Opinion Writing begin to see by this partial explana- useful distinctions. (American Bar Association). Her most recent tion of the subjunctive mode why the book is Legal Writing Advice: Questions and majority of English speakers ignore the From the Mailbag Answers (W. S. Hein & Co., 2004). subjunctive. It is still alive, however, in My thanks to Attorney Frank G. expressions like, “Be that as it may,” Helman, who sent me the lyric of a MEMBERSHIP TOTALS “God forbid,” and “Heaven help us.” song that employs zeugma copiously The subjunctive mode is also tradi- and comically. He wrote that he was NEW REGULAR MEMBERS tional in dependent clauses expressing familiar with the rhetorical device of 1/1/10 - 2/17/10 ______1,089 demand, resolution, strong request or zeugma, but didn’t know its name urgency. For verbs other than be the until he read the November/December NEW LAW STUDENT MEMBERS simple present tense of the verb is cor- issue of “Language Tips.” The first and 1/1/10 - 2/17/10 ______226 rect, except for the third person singu- last verses are reprinted below. The TOTAL REGULAR MEMBERS lar, which drops the usual s. When the authors are the British duo, Flanders AS OF 2/17/10 ______75,390 verb be occurs in the dependent clause and Swann: it is correct for all three persons. The “Have Some Madeira, M’Dear,” TOTAL LAW STUDENT MEMBERS following sentences indicate correct She was young, she was pure, she was AS OF 2/17/10 ______3,407 new, she was nice grammatical usage: TOTAL MEMBERSHIP AS OF It is important that she eat her He was old, he was vile, and no 2/17/10 ______78,797 lunch on time. (Not eats) stranger to vice,

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58 | March/April 2010 | NYSBA Journal 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 mentioning 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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62 | March/April 2010 | NYSBA Journal 2009-2010 OFFICERS MEMBERS OF THE HOUSE OF DELEGATES

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

NYSBA Journal | March/April 2010 | 63 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

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