Remembering Mr. Flavin

FEBRUARY 2008 VOL. 80 | NO. 2 JournalNEW YORK STATE BAR ASSOCIATION

The Origins (and Unintended Consequences) Also in this Issue of Online Legal Research Eugene C. Gerhart and Justice Robert Jackson by Gary D. Spivey Immigration Compliance 2007 Criminal Law Legislation Consumer Protection Law in 2007

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EUGENE C. GERHART Editor-in-Chief, 1961–1998 CONTENTS FEBRUARY 2008

REMEMBERING JAMES M. FLAVIN The Origins (and Unintended Consequences) of Online Legal Research BY GARY D. SPIVEY 10

Cover photo of James Flavin, courtesy of the Flavin family. Letter DEPARTMENTS on ﬁ le at New York State Law Reporting Bureau. 5 President’s Message 8 CLE Seminar Schedule 20 Burden of Proof 26 Eugene C. Gerhart (1912–2007), BY DAVID PAUL HOROWITZ Jackson Biographer 47 Computers & the Law BY JOHN Q. BARRETT BY DAVID P. M IRANDA 49 Presentation Skills for Lawyers 30 Saving Clients From Themselves BY ELLIOTT WILCOX Immigration Compliance Is Less About 50 Empire State Counsel Immigration Law Than Good Legal Advice 52 Attorney Professionalism Forum BY JOHN R. BUNKER 54 Language Tips 2007 Criminal Law Legislation BY GERTRUDE BLOCK 35 BY BARRY KAMINS 58 New Members Welcomed 61 Classified Notices 42 New York State Consumer Protection 61 Index to Advertisers Law and Class Actions in 2007 – Part I 63 2007–2008 Officers BY THOMAS A. DICKERSON 64 The Legal Writer BY GERALD LEBOVITS

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NYSBA Journal | February 2008 | 3

PRESIDENT’S MESSAGE KATHRYN GRANT MADIGAN 74,000 Strong and Growing!

t the end of 2007, our urging Sections to think strategically Association reached a long- about growing membership and diver- Aawaited milestone. Having sity2 in their Section generally and watched with a growing sense of within their leadership. unease our relatively stable member- These themes were reinforced dur- ship hovering at, or just above, 72,000 ing our May 2007 Section Leaders over the last three years, I am delight- Conference and throughout this year, at ed to report that we are now 74,000 the 14 Section Meetings that President- members strong! Kudos to our Bar Elect Bernice Leber and I were privileged Center staff, Committee and Section to attend, as well as on the new Section leaders and especially the Association leadership listserve, through our innova- Membership Committee for setting tive online Section Resource Center and the stage for the formal “kick off” of first-ever Section Audio Conferences on our 2010 Membership Challenge on membership. In December, more than January 1, 2008. 20 Section leaders attended a Section This vital, multi-year strategic ini- Membership Training at the offices of Elect designee Mike Getnick. My term tiative has required substantial col- Patterson & Belknap in New York City as your President will end on June 1. laboration with our staff and volunteer to share best practices. And while I will continue my commit- bar leaders at all levels to ensure that Naturally, our Membership Com- ment to membership that began back our Association will have a stable and mittee has undertaken a leading role in 1979 when I was first appointed growing membership base, securing in the Challenge, and we are indebt- to the Membership Committee, this our legacy over the long term as the ed to the creative leadership of the multi-year strategic plan will require voice of the profession in New York. As Chair, Claire Gutekunst, and her the continuing stewardship of Bernice noted in my message in the September dedicated Committee – in particular and Mike, our leadership and staff. issue of the Journal, the growth of a Steve Younger, who is chairing the And every one of our members. Each diverse membership and leadership Subcommittee on the 2010 Membership of you, our 74,000 members, joined is fundamental. I am now even more Challenge. The support of Executive and has remained a member of our confident that we will meet or exceed Director Pat Bucklin and her staff, Association because you “get it.” You this Membership Challenge and by especially Membership Director Pat understand the value and relevance, December 31, 2010 we will have: Wood and Marketing Director Rich the opportunities for greater mean- 1. Increased Section membership Martin, as well as Lisa Bataille and ing, service and leadership that mem- by 10%; Megan O’Toole, has been essential. bership in the New York State Bar 2. Increased law student member- The 10% per year Law Student Association provides. We need you to ship by 10% each year; and Challenge is ambitious but eminently help us meet our membership goals. I 3. Increased overall Association doable. We have developed a com- urge each member to reach out to one membership by 5%.1 prehensive Law Student Membership non-member attorney, expressing the The “silent phase” of the Challenge Strategy, which has already begun to tremendous value of NYSBA member- began in the fall of 2006 and the early bear fruit. Our goal is to establish a pres- ship and encouraging that attorney to part of 2007 with a series of group ence on every law campus in New York join. I look forward to celebrating with meetings with our 23 Section Chairs or State, each with a NYSBA student repre- you yet another membership mile- their designees. Past NYSBA President, sentative who can more effectively pro- stone in 2010. Our future as the voice and Vice Chair of our Committee on mote the programs and services we offer of the New York lawyer depends on it. Diversity and Leadership Development, that uniquely serve the law student, Let the Challenge begin! ■ Tom Levin and I reviewed each from our online law student newsletter Section’s membership profile as well to brown bag “real world” lunches with 1. I initially set this goal at 10%, but was urged to rein in my unbridled enthusiasm by lowering it as their 2005 Diversity Report Card, seasoned practitioners to strengthening to a more achievable goal of 5%. I remain optimistic our ties with law school deans. that we will get within “shouting distance” of a 10% increase in NYSBA membership by 2010. KATHRYN GRANT MADIGAN can be None of this would be possible with- reached on her blog at http://nysbar. out the active support of President- 2. My next President’s Message will report on our progress on our diversity initiatives. com/blogs/president. Elect Bernice Leber and President-

NYSBA Journal | February 2008 | 5 NEW YORK STATE BAR ASSOCIATION

“I love being a NYSBA member for so many reasons—like the networking opportunities. I’ve made countless professional contacts and lasting friendships.”

Sherry Levin Wallach, Member since 1996

Renew today for 2008. www.nysba.org/renew2008 Thank you for your membership support.

NYSBACLE Partial 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.

The New Era of Worksite Enforcement: Representing the Women on the Move 2008 – Clarity, Focus and Action Endangered Employer (half-day program) Fulfills NY MCLE requirement for all attorneys (8.5): 1.0 ethics Fulfills NY MCLE requirement for all attorneys (4.5): 2.0 skills; and professionalism; 2.5 skills; 5.0 practice management and/or 1.5 law practice management; 1.0 professional practice professional practice April 9 Syracuse February 26 New York City A Day in Discovery: Win Your Case Before Trial with Update on the NYS Long Term Care Restructuring Jim McElhaney Initiative (telephone seminar) Fulfills NY MCLE requirement for all attorneys (7.0): .5 ethics +Fulfills NY MCLE requirement (2.0): 2.0 professional practice and professionalism; 6.5 skills February 27 All cities IMPORTANT NOTE: NYSBA CLE seminar coupons and complimentary passes cannot be used for this program. Twelfth Annual New York State and City Tax Institute April 17 Tarrytown +Fulfills NY MCLE requirement (8.0): 1.0 ethics and April 18 New York City professionalism; 7.0 skills, practice management and/or professional practice Election Law IMPORTANT NOTE: NYSBA CLE seminar coupons and (half-day program) complimentary passes cannot be used for this program. April 17 Syracuse March 5 New York City April 23 Buffalo The Basics of Public Sector Law April 25 Tarrytown Fulfills NY MCLE requirement for all attorneys (5.5): 1.0 ethics May 7 New York City and professionalism; 1.5 skills; 3.0 practice management and/or May 14 Albany professional practice May 16 Melville, LI March 6 Rochester Advanced Equitable Distribution: Valuing and Dividing March 12 Albany Professional Practices and Closely-Held Businesses March 18 New York City +Fulfills NY MCLE requirement (4.0): 4.0 practice management Bridge the Gap 2008: Crossing Over Into Reality and/or professional practice Fulfills NY MCLE requirement for all attorneys (16.0): 3.0 (half-day program) ethics and professionalism; 6.0 skills; 7.0 practice management April 25 Tarrytown and/or professional practice May 9 Rochester IMPORTANT NOTE: NYSBA CLE seminar coupons and May 16 Melville, LI complimentary passes cannot be used for this program. June 13 Albany (two-day program) June 20 New York City March 12–13 New York City Insurance Coverage Introductory Strategies on Ethics and Civility in April 29 Albany; New York City Everyday Lawyering May 1 Buffalo (half-day program) May 2 Syracuse Fulfills NY MCLE requirement for all attorneys (4.0): TBD Long Island 4.0 ethics and professionalism Meet the Third Department Justices April 4 Albany; Buffalo; New York City (program, 3:00 pm–5:00 pm; reception, 5:00 pm– 6:00 pm) April 18 Melville, LI April 30 Albany April 25 Rochester DWI on Trial VIII Practical Skills Series: Family Court Practice: Support, Fulfills NY MCLE requirement for all attorneys (10.5): Family Offense Proceedings and Ethics 7.5 skills; 3.0 professional practice Fulfills NY MCLE requirement for all attorneys (7.5): 2.0 ethics IMPORTANT NOTE: NYSBA CLE seminar coupons and and professionalism; 3.0 skills; 2.5 practice management and/or complimentary passes cannot be used for this program. professional practice May 1–2 New York City April 8 Albany; Buffalo; Melville, LI; New York City; Rochester; Syracuse; Westchester

All programs are 9:00 a.m.–5:00 p.m. unless otherwise indicated. Registration begins 1/2 hour before each program. + 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 | CD | iPod | MP3 PLAYER

Long Term Care Bringing CLE to you... May 2 New York City May 9 Albany anywhere, anytime. May 16 Rochester NYSBA is proud to present the most flexible, Out the Door, But Not Over the Hill – Options for the Mature Lawyer “on demand” CLE solutions you could ask (half-day program) for. May 6 Albany With CLE Online (also available as CLE on May 14 New York City May 21 Hauppauge, LI CD), you can now get the valuable professional learning you’re after Practical Skills Series: Basics of Intellectual ...at your convenience. Property Law Fulfills NY MCLE requirement for all attorneys (7.0): 2.0 > Get the best NY-specific content from skills; 5.0 practice management and/or professional practice May 8 Buffalo; Hauppauge, LI; the state’s #1 CLE provider. New York City; Syracuse > Take “Cyber Portable” courses from your laptop, at home or at work, via the Immigration Law Update 2008 May 13–14 New York City Internet or on CD. > Download CLE Online programs to your Getting Ready in New York: Public Health Emergency Legal Preparedness iPod or MP3 player. May 15 New York City > Everything you need to obtain full MCLE credit is included online or on CD! Practical Skills Series: Basic Tort and Insurance Law Practice Fulfills NY MCLE requirement for all attorneys (6.5): .5 eth- Come click for CLE credit at: ics and professionalism; 2.5 skills; 3.5 practice management www.nysbaCLEonline.com and/or professional practice or to purchase CDs call 800.582.2452 May 20 Albany; Buffalo; Melville, LI; New York City; Syracuse; Westchester

+Fourth Annual International Estate Planning Institute (one and a half-day program) May 27–28 New York City

+Escrow Accounts (telephone seminar) (program: 12:00 noon–1:30 pm) June 4 All Cities

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To register or for more information call toll free 1-800-582-2452 In Albany and surrounding areas dial (518) 463-3724 Or fax your request to (518) 487-5618 Complete Spring CLE Schedule can be found at: www.nysba.org/CLE/spring2008 (Note: As a NYSBA member, you’ll receive a substantial discount) NYSBA Journal | February 2008 | 9 James M. Flavin (1908–1984) was a graduate of Syracuse University and its College of Law. He served as State Reporter from 1953 to 1976 and simultaneously was Clerk of the Court of Appeals from 1972 to 1974. Flavin chaired the New York State Bar Association Committee on Electronic Legal Research from 1969 to 1973 and later was chair of the American Bar Association Committee on Technology and the Courts. (Photo courtesy of the Flavin family.)

Letter from Warren M. Anderson, chairman of the New York State Senate Committee on Finance, approving $7,500 expenditure for work on electronic case retrieval system. (Letter on file at New York State Law Reporting Bureau.) GARY D. SPIVEY ([email protected]) is a graduate of Indiana University (Bloomington) and its School of Law. He has served as State Reporter and head of the New York State Law Reporting Bureau since 1999. He is a member of the Board of Editors of the Journal.

Remembering James M. Flavin The Origins (and Unintended Consequences) of Online Legal Research

By Gary D. Spivey

he year 2008 marks the centennial of the birth of Advocacy of Selective Publication James M. Flavin, the father of online legal research Flavin’s advocacy of selective publication of decisions1 Tin New York. It provides an opportunity to recall must be understood in the context of his time. his pioneering efforts and their modern day impact, some Decisions were available only in printed books, and aspects of which he did not intend and may not have Flavin was concerned about the cost to the bar of pur- welcomed. chasing and shelving those books. At the time, the pri- Flavin was New York’s 21st State Reporter, the head mary means of finding relevant decisions in those books of the state agency – the New York State Law Reporting was through the digest or subject matter index method Bureau (LRB) – responsible for the official publication of of research. If a decision was not classified under the the decisions of the New York courts. For a period, he appropriate topic, it could not be found. Flavin argued also served as Clerk of the Court of Appeals. that many decisions were so insubstantial that they could Throughout much of his 23-year tenure as State not be classified to a subject matter index. More funda- Reporter, Flavin exhibited a strong interest in technology mentally, he believed that many decisions were simply as a tool for the distribution of the Official Reports, an unworthy of publication because they were not useful to interest he further championed as chair of the New York the bar. State Bar Association Committee on Electronic Legal Research. Appellate Division Decisions He also was an advocate for selective publication of Flavin took particular aim at the memorandum decisions decisions, arguing that much of what was published was of the Appellate Division. In those days, more than half of little value and burdened the profession with unneces- of the memorandum decisions were motion decisions on sary costs. Ironically, it was Flavin’s success in promoting such matters as motions for leave to appeal, motions for the power of the computer to deliver legal information a stay or motions for reargument. Another quarter were that opened the floodgates to the publication of an even decisions dismissing appeals or unanimously affirming greater number of decisions. the decisions below without opinion. Only the remainder

NYSBA Journal | February 2008 | 11 This was not a problem that the State Reporter could solve, Flavin noted, since then, as now, the LRB was required to “report . . . every cause determined in the appellate divisions of the supreme court, unless otherwise directed by the court deciding the cause.”5 Rather, he argued, “The remedy lies in the several departments of the Appellate Division making available for publication anywhere only those decisions which contain law which can be indexed under a subject matter index or which affect a published opinion of the court appealed from.”6 Whether or not as a direct result of his advocacy, Flavin’s views largely prevailed. The Appellate Division departments for the most part gradually began to segre- gate their decisions on appeal from their motion decisions and to provide only the former for publication. Later, the practice of rendering unanimous affirmances without opinion fell into disfavor – including a short-lived statutory prohibition7 – and was less frequently followed. Consequently, from that time forward, most of the decisions provided for publication contained a writing that could be classified to a subject matter index.

Lower Court Decisions Flavin also favored limiting the number of published trial court opinions. He won the Judicial Conference’s support for the formation of a “Committee on Opinions” on which Court of Appeals Judge Stanley H. Fuld, Justices of each department of the Appellate Division, and Flavin sat. The committee was established “to examine the problem raised by the growing number of opinions and decisions which are published in the State of New York.”8 The committee concluded that “it is essential, in the Hon. Stanley H. Fuld recognized the potential benefits of computer- interest of sound reporting – particularly in the light of assisted legal research and provided strong support for Flavin’s initiatives. diminishing library space – that publication be limited (Portrait courtesy of Court of Appeals Collection.) to those cases which have usefulness as a precedent or which are important as a matter of public interest (cf. Judiciary Law, § 431).”9 The cited statute then, as now, contained a writing affirming, reversing or modifying the permitted the LRB to publish any lower court opinion decision below. “which the state reporter, with the approval of the court Arguing that “one of the best tests of the advisability of appeals, considers worthy of being reported because of of publishing a decision is whether it can be indexed in its usefulness as a precedent or its importance as a matter the subject matter index,”2 Flavin observed that only 20% of public interest.” of the memorandum decisions The Administrative Board of the Judicial Conference contained material of sufficient weight to justify being and the Appellate Division departments approved a set of included in the subject matter index. The remaining rules proposed by the committee.10 These rules affirmed 80% included a great number of decisions affirming the State Reporter’s authority to withhold from publica- judgments without opinion and, in addition, a great tion any opinion that the Reporter determined not to be number of opinions on motions of an incidental or acceptable, subject only to an appeal of the Reporter’s 3 subsidiary nature. determination to the committee. In its comments to the To Flavin, this analysis made clear that “approximate- rules, the committee stated: ly 80% of the reported Appellate Division memoranda [O]pinions dealing with matters which are essentially decisions now required to be included in the Official of interest only to the attorneys and parties involved Reports are of such scant utility that their continued should not be presented for publication; and opinions inclusion in the material released for publication cannot covering legal matters which are of relatively inci- be justified.”4 dental interest or which involve primarily factual or

12 | February 2008 | NYSBA Journal discretionary matters . . . should not be submitted for and the cost of producing such a multi-volume work was publication.11 prohibitive. The new rules apparently had the desired effect. In fact, it was that problem that led Flavin to consider Flavin wrote: a totally new way of finding the law. After the adoption of new rules for the selection of opinions for publication, the Judges themselves began Origins of Online Research sending in to us fewer and fewer opinions which they Frustrated by the difficulty of creating an official printed regarded as suitable for publication. The result is that digest of New York cases, Flavin began in the early 1960s we do not find that we have to mark many opinions as to consider the possibility of retrieving cases from a com- 12 “not acceptable.” puter database. Proponents of selective publication were quick to His research led him to Stephen E. Furth, an note that withholding an opinion from publication did International Business Machines (IBM) manager who not render it inaccessible, since a copy of an unreported inspired Flavin with the vision that “the time might opinion could be obtained at a slight cost from the clerk come when a court’s opinion would be delivered from of the court. They discounted the difficulties of obtaining the judge’s typewriter to the computer”16 and facilitated copies in this manner from uncooperative clerks who a visit by Flavin to the American Bar Foundation, which

Frustrated by the difﬁ culty of creating an ofﬁ cial printed digest of New York cases, Flavin began in the early 1960s to consider the possibility of retrieving cases from a computer database. could deny access and were unconcerned that such a was conducting a joint study with IBM on legal informa- denial conflicted with the principle that court decisions tion retrieval.17 were public property that should be available on request. Flavin also came to know John F. Horty, director of Their attitude was: the University of Pittsburgh Health Law Center, who had I don’t quite understand this public property argu- demonstrated at the 1960 annual meeting of the American ment, or the fuss about getting an opinion from the Bar Association “the first example of a text-searching sys- clerk. The reason the opinions are unreported is that tem that provided word-proximity searching.”18 Horty there is no need for lawyers to have them.13 visited Albany for discussions about law retrieval with The proponents also had little sympathy for the Flavin and Judge Fuld, who was the Court of Appeals argument that requiring attorneys to obtain copies from liaison to the Law Reporting Bureau. Judge Fuld was said the clerk gave an advantage to larger firms with the to be “very interested” in the subject19 and both as liaison resources to undertake such a collection effort, regarding judge and later as chief judge, provided strong support that advantage – if any – as only one of many inevitable for Flavin’s efforts. advantages of size and wealth.14 At about the same time, Flavin became aware of what Whether Flavin shared all of these views is unknown, has been described as “the first computer-based biblio- but there can be little doubt that he rejected the counter- graphic search service provided on a regular basis by argument that a commercial organization.”20 Law Research Service, [i]t is more inconvenient to find that one leading case Inc. had introduced a service that allowed attorneys is not reported than to have twenty unimportant cases to submit research questions to its staff, which would in the books. With a proper system of indexing it is then formulate search queries and run them against a possible for a reader to skip those cases which he does UNIVAC III database consisting of the headnotes from not need, but there is no way in which he can con- the New York Official Reports. The full text of relevant veniently consult an important case which has been decisions identified through this process would be print- 15 omitted. ed from microfilm of the Official Reports and sent to the Even if Flavin had been willing to agree that it was attorney. preferable to publish some unimportant cases rather than A significant problem with this service was that it risk omitting one important case, he would not have violated the state’s copyright in the headnotes and other conceded the existence of “a proper system of index- editorial matter prepared by the LRB. Furthermore, the ing.” While individual volumes of the Official Reports then-current version of Judiciary Law § 438, vesting copy- contained a Digest-Index for that volume, there was no right of such matter in the Secretary of State and authoriz- official cumulative Digest-Index spanning all volumes, ing the Secretary to license to others the right to publish

NYSBA Journal | February 2008 | 13 the copyrighted material “in an annotated edition” of the full text method with the addition of selected [editorial] law reports, was, as the Attorney General concluded, “not material,”30 Flavin wrote. While that approach initially broad enough to be applied to the instant situation.”21 had been deemed impracticable because of the cost of The Attorney General wrote that he was “not unaware converting the text of the decisions to machine-readable of the potential value of the service in question as a time- form, “[w]e have just learned that with the ‘scanning’ saving aid in the search for legal precedent.”22 Similarly, method the cost can be materially reduced – at least by Flavin advised Judge Fuld that neither he, the Attorney half.”31 General nor the Secretary of State wanted to “hinder” Law Research Service, Inc. in its “attempt to use the Data Scan Project Univac machine in law research,” but “felt that there The scanning initiative gained momentum with the New was no alternative under the statute” but to “warn” the York State Senate’s approval of a $7,500 expenditure to company that “the Secretary of State had an obligation to pursue the concept.32 Flavin then entered into a contract protect the State’s copyright.”23 for the scanning of 17 volumes of the New York Reports The solution was a statutory amendment drafted by use of a Philco scanner.33 by Flavin and approved by the Court of Appeals and The state of the technology did not permit scanning Secretary of State. It removed the language restricting the directly from the text of the printed books. Instead, the use of the licensed copyrighted material to publication in text had to be re-typed and the typewritten sheets fed into an “annotated edition” of the law reports. The amended the scanner. After only six volumes had been scanned, statute simply provided that the right to use the copy- Flavin concluded that “the scanning process left some- righted matter could be granted “under such terms as [the thing to be desired” and turned his attention to a new secretary] and the chief judge of the state of New York methodology for converting text to machine-readable may determine to be for the best interests of the state.”24 form.34 In addition to resolving an immediate problem, this change would be of even greater significance in the future IBM Datatext/Aspen/Data Corp. Projects development of online legal research in New York. Under the new approach, an IBM 2741 workstation (a modified IBM Selectric typewriter connected to a tele- IBM Pilot phone line) was provided to the Law Reporting Bureau A 1964 contract between the state Legislature and IBM to for transmitting the text of New York Reports volumes to develop an electronic legal retrieval system for research- the remote IBM Datatext System.35 ing statutes25 paved the way for Flavin to initiate his Again, the text had to be re-typed from the books, but experimentation with case law research. no typewritten sheets were produced under this process. He requested that the Court of Appeals approve an Instead, the keystrokes were transmitted to the IBM sys- experiment under which editorially selected keywords tem in New York City, where a magnetic tape was pro- from three volumes of Court of Appeals decisions would duced for loading onto the State’s computer system. be fed into the IBM computer system utilized by the Describing the project to the Executive Committee Legislature to determine the retrieval capabilities of that of the New York State Bar Association (NYSBA), Chief system as applied to case law.26 A contract between Flavin Judge Fuld said: and IBM “to test a pilot case retrieval system for New [D]espite all the thinking and effort that have already York State Court of Appeals cases” was approved by the gone into the subject of case law research, no really Court.27 satisfactory system of legal information retrieval has Flavin approached the experiment with an open mind yet been devised. And we in the Court of Appeals and some skepticism. He wrote that – through the State Reporter, Mr. James Flavin – are our main interest is to keep abreast of the times, to get engaged in an experiment in the hope that we may acquainted with the systems that are being developed, effect a more efficient and meaningful procedure of 36 and the people who are developing them, and to be retrieving relevant decisions. ready to use a system which is found to be practi- There was, he observed, cable. . . . [W]e feel it will be a long, long time before a no doubt that the computer can be of invaluable aid in completely automatic system is developed, if it is ever the area of research and in the compilation, storing and developed.28 retrieval of vast quantities of pertinent reference mate- This initial experiment, which Flavin determined was rial. Most importantly, it offers the potential of rescu- “not broad enough to give us a conclusive answer as to ing us, our libraries and our law clerks from today’s 37 the practicability of this system”29 was abandoned in avalanche of print. favor of a different approach – searching the full text of Flavin’s goal was to convert at least 12 more volumes, the decisions rather than merely the keywords. “I had in addition to the six scanned volumes, but after less always believed that the proper method would be the CONTINUED ON PAGE 16

14 | February 2008 | NYSBA Journal

CONTINUED FROM PAGE 14 tered by the Board of Regents to study electronic retrieval than two years he cancelled the IBM contract in favor of legal information.43 Both Flavin and Judge Fuld served of a system that John Horty suggested was a “more on its board. efficient way[] of doing the same job.”38 By then, Horty Like Flavin, the LCELR had recognized the need to had founded Aspen Systems Corp., a company which build a database of sufficient size for testing document offered a service for searching statutory and regulatory retrieval, but had found the cost of data conversion to be information. Flavin had been seeking legislative fund- daunting. Its president, Thomas Plowden-Wardlaw, had ing for a proposal under which Aspen would convert written, “The cost of creating such a data bank under the unscanned volumes for a fee and make the database present methods of punching cards, typing and scanning, available as part of its service.39 Horty offered to prepare Datatext, etc. is so great as to constitute a formidable a volume of the Official Reports as an informal test. bottleneck in the development of such a bank, whether At the same time, Flavin was considering a similar for experimental or ultimate commercial use.”44 An offer from Data Corp., the predecessor of Mead Data arrangement with Data Corp./Mead promised a solution Central (which would become today’s LexisNexis). For a to this dilemma. fee, the company would convert the unscanned volumes Data Corp. quickly recommended a framework that and build a test database that could be queried by the eventually would be implemented: an “initial agreement LRB staff.40 [that] would provide a working arrangement to enable

As chair of the Committee on Electronic Legal Research, one of Flavin’s ﬁ rst acts was “to try to persuade the people and the visitors to do something about putting the New York cases on the computer.”

Neither the Aspen nor the Data Corp. proposal came us to research and then plan a viable program” and “a to fruition, but Flavin’s growing familiarity with Data second agreement – a long term operating contract under Corp. – and his appointment to a leadership role within which we would execute the program with you.”45 the New York State Bar Association – had set the stage for Flavin and Plowden-Wardlaw soon visited Data a new and ultimately successful strategy. Corp./Mead in Dayton, Ohio, where they reached agreement on a concept that subsequently would be formal- MDC/NYSBA Project ized in written contracts: When Flavin became chair of the Bar Association 1. Data Corp./Mead would assume the total financial Committee on Electronic Legal Research, one of his first obligation to put the cases on the computer and sell acts was to call a meeting “to try to persuade the people the service. and the visitors I have invited to do something about 2. The Bar Association would be the contracting party putting the New York cases on the computer.”41 The visi- and would sponsor the service. tors included the former president of the Ohio State Bar 3. The Bar Association would obtain the right to use Association, which already had an agreement with Data the copyrighted material and would pass those Corp. (acquired during this period by the Mead Corp., rights on to Data Corp./Mead.46 soon to be renamed Mead Data Central) to create a data- After intensive negotiations, an initial agreement was base of Ohio cases. reached between Mead Data Central (MDC), the succes- The result was a resolution recommending that “the sor of Data Corp., and the Bar Association. It provided Bar Association negotiate with Mead Corp. a form of that MDC would create a demonstration database and agreement to put New York cases and other legal materi- undertake a study of the attitudes of the New York bar als in an appropriate computer readable medium for the toward MDC’s system. The Bar Association agreed to purpose of electronic retrieval.”42 The committee also obtain a license for use of the copyrighted elements of recommended that the Bar Association negotiate with the the Official Reports and to assign the license to MDC. At state to obtain a license to use the copyrighted material the conclusion of the study period, MDC would deter- from the Official Reports (the path to such a license hav- mine whether it was economically feasible to offer a fully ing been cleared by the earlier amendment to Judiciary operational system. If so, the parties would enter into an Law § 438). Negotiations would be conducted by Flavin’s operating agreement.47 committee in cooperation with the Lawyers’ Center for Chief Judge Fuld and the Secretary of State quickly Electronic Legal Research (LCELR), an institution char- gave their approval of a license for the use of the

16 | February 2008 | NYSBA Journal Prescient though he was, Flavin copyrighted elements of the Official Reports. The Bar Association and MDC acknowledged that “part of the could not have foreseen the future income from the sale of such computerized service ubiquity of online legal research. should be contributed toward the cost of the publication of such Official Reports of the State of New York as are included in the service.”48 Accordingly, while there was research. Soon, other publishers would enter the mar- no charge to MDC during the study period, the license ket, but – ironically – it would be many years beyond provided that, under an operating agreement to provide the Flavin era before the LRB published its own official the service on a permanent basis, the State would receive compilation. a usage royalty, with a minimum of $10,000 and a maxi- The impediment to publishing an official version was mum of $50,000 per year. statutory – the Judiciary Law provided for the publica- Near the conclusion of the first year of the study, the tion of the Official Reports only in printed form. opinions from all volumes of New York Reports 2d (cov- Authorization for electronic publication of the Official ering Court of Appeals cases) had been marked up by the Reports came in a 1988 statutory amendment providing LRB for conversion to machine-readable form, converted for publication “in any medium or format” in addition to by MDC and loaded onto the demonstration database. print, including “microfiche, ultrafiche, on-line computer Demonstration terminals had been installed at MDC’s retrieval data base, and CD-ROM.”54 New York City office, at the Erie County Bar Association After a decade in which the LRB focused on develop- in Buffalo, at the State Bar Association office in Albany ment of a CD-ROM product, this authority to publish and, at the request of Chief Judge Fuld, at Court of online was exercised in 1999 when the Second series of Appeals Hall. Flavin reported that MDC had met its the Official Reports was published on Westlaw (NY-ORCS obligations under the initial agreement and recounted the file). The First series was added in 2001. And Flavin’s following incident: quest for an alternative to a printed digest came full circle with the publication of the Official Reports electronic One of the members of the committee asked that the computer find any cases in the New York Second digest – a technological cumulation of the Digest-Indexes Series with the word “freeholder.” Upon objection that in the individual volumes – in 2003. the word was used so seldom that synonyms ought to In 2004, the Third series came online at the introduc- be requested, the committee member who made the tion of that new series. The Official Reports continue to request said he was adamant that he wanted only the be published on Westlaw pursuant to a competitively bid word “freeholder,” and that he had made a very care- publishing contract awarded to Thomson/West. In addi- ful page by page search of the New York Second Series tion, the LRB offers a Web site (http://www.nycourts. and knew that there was only one case and that was in gov/reporter), launched in 2000, providing free public the first volume of the New York Second Series where access to a database of current and archival decisions.55 the word “freeholder” appeared. To his astonishment the computer found not one but three cases with the Demand for Greater Access word “freeholder.”49 Prescient though he was, Flavin could not have foreseen The study then was expanded by adding all volumes that the future ubiquity of online legal research – fueled of the Appellate Division Reports 2d.50 Within months, by the expansion of the online services, the invention of MDC gave notice to the NYSBA that “MDC has deter- the personal computer, the emergence of the Internet and mined that it is economically feasible to make available to the development of powerful new search engines and the bar in the State of New York its computerized, on-line search algorithms for finding, sorting and ranking infor- legal information retrieval system on a permanent, fully- mation – would spur an insatiable demand for access to operational basis.”51 An operating agreement between an ever-expanding body of legal information, including MDC and NYSBA soon followed. It provided that MDC case law. He could not have predicted that lawyers in would make the New York Reports 2d, Appellate Division solo practice and small firms would be empowered by Reports 2d and Miscellaneous Reports 2d available on its the new technology to seek access to the same informa- system within one year of the agreement.52 The MDC tion resources that formerly were available only to larger system – consisting of New York and Ohio case law and firms and corporate and government law departments. statutes and federal tax law – became publicly available Nor could he have imagined that a new generation of under the name “LEXIS” on April 2, 1973.53 technology-savvy citizens would assert their entitlement to online access to information about their government, Aftermath including its courts and their decisions. Growth of Online Services These trends were recognized in the 2004 report of The publication of New York decisions on LEXIS set Chief Judge Judith S. Kaye’s Commission on Public in motion the modern age of computer-assisted legal Access to Court Records, which recommended that “[if] a

NYSBA Journal | February 2008 | 17 court case record . . . is public, and is therefore accessible the LRB now publishes online a greatly expanded num- to the public in paper form at the courthouse or County ber of decisions: Clerk’s office, the same record should, as a general mat- • In addition to publishing both in print and online all ter, be publicly accessible on the Internet if it is filed in or of the opinions and memorandum decisions of the 56 converted to electronic form.” The Commission further Appellate Division, the LRB now publishes online recommended that “[i]n implementing Internet access all of the motion decisions of those courts (about to case records, priority should be given to assuring that 30,000 per year) – the very type of decisions that court calendars, case indices, dockets and judicial opin- Flavin lobbied to remove from the printed reports. 57 ions of all courts are available.” • The number of lower court opinions published The Unified Court System has endorsed and com- annually in the printed Miscellaneous Reports menced implementation of these recommendations with remains about 600, the same as in the Flavin era, but 58 pilot projects in Manhattan and Broome County. These many additional opinions now are published online. pilots expand upon existing public access initiatives, That number is expected to reach 10,000 in 2008. including the eCourts service (https://iapps.courts.state. Still governed as it is by the requirement that pub- ny.us/caseTrac/jsp/ecourt.htm), which currently pro- lished opinions be of at least arguable precedential vides the text of more than a quarter-million trial court usefulness or public importance, the LRB exercises decisions dating back to 2001. a high degree of selectivity even in the online publication of lower court opinions – less than 10% of Effect on Selective Publication the decisions posted on the Unified Court System’s These developments have sounded the death knell to calls eCourts service are selected for publication – but for greater selectivity in the publication of decisions. the exercise of selectivity for online publication is The new electronic search tools have become the mod- far more liberal than Flavin probably would have 59 ern equivalent of a “proper system of indexing” that approved. makes it possible to filter out unimportant cases in search of the important ones, and their emergence provides Conclusion persuasive force to the argument that it is preferable to On this centennial of his birth, Flavin deserves our praise publish some possibly unimportant decisions rather than for his early recognition of the potential of performing risk omitting an important one. case law research by use of a computer and for his lead- Furthermore, to the extent that support for selec- ership in the creation of the first computer-assisted legal tive publication was based on the constraints of print research system for the New York bar. He also should be publishing – the cost of purchasing and shelving books credited for establishing the criteria for selective print – that rationale is no longer controlling in the electronic publication that are followed to this day. Whether over environment. In any event, the increase in the quantity of time he would have concluded that the rationale for decisions rendered annually by the courts since Flavin’s selective publication was less applicable in the new elec- time – quadrupling the number of Appellate Division tronic research environment cannot be known. Given that memorandum decisions and multiplying the number his interest in computerized research arose from a desire of trial court decisions even more – has reached a point to find an alternative to a printed digest, and thereby to where all the decisions worthy of publication, even under make the body of case law more accessible, it is possible Flavin’s strict standards, can no longer be accommodated that the development of new means of electronic access in a reasonable number of printed volumes per year. would have softened his opposition to more compre- In short, the print medium is diminishing in signifi- hensive publication. In any event, it is safe to assume cance, and its limitations can no longer govern the deter- that he would have examined the issue with the same mination of what should be published. As Chief Judge open, inquiring and skeptical mind that he demonstrated Judith S. Kaye put it in announcing the implementation so impressively in his pioneering exploration of online of the recommendations of her Commission on Public research. ■ Access to Court Records: 1. James M. Flavin, Decisions and Opinions for Publication, 12 Syracuse L. Rev. In a society where paper is becoming obsolete, and 137, 137 (Winter 1960) (“Flavin, Decisions for Publication”). electronic transmittal of information is often the norm, 2. Id. at 138. more and more people each day expect to gather 3. Id. at 138–39. He also noted that less than 20% had been cited in later information and conduct their daily business on the reported decisions. Internet. The courts must adapt to this modern real- 4. Id. at 139. ity and consider new means to provide better public 5. N.Y. Judiciary Law § 431. access.60 6. Flavin, Decisions for Publication, at 146. Accordingly, while the coverage of the printed Official 7. Discussed in Siegel, Practice Commentaries, McKinney’s Cons. Laws of Reports remains essentially unchanged from Flavin’s day, N.Y., Book 7B, CPLR C5522:3.

18 | February 2008 | NYSBA Journal 8. Announcement by James M. Flavin, dated Feb. 1963 (on file at LRB). 43. The LCELR later became the National Center for Automated Information Retrieval (NCAIR). 9. Id. 44. Thomas C. Plowden-Wardlaw, The Lawyers’ Center for Electronic Legal 10. Now codified at 22 N.Y.C.R.R. part 7300. Research, L. & Computer Tech. (Oct. 1968) 9, 11. 11. 22 N.Y.C.R.R. § 7300.6. 45. Letter from William F. Gorog, Data Corporation, to James M. Flavin and 12. Letter from James M. Flavin to Prof. Morris L. Cohen, University of Thomas C. Plowden-Wardlaw, dated Jan. 16, 1970 (copy on file at LRB). Pennsylvania Biddle Law Library, dated June 25, 1963, as quoted in Comment, 46. Letter from James M. Flavin and Thomas C. Plowden-Wardlaw to NYSBA Discretionary Reporting of Trial Court Decisions: A Dialogue, 114 U. Pa. L. Rev. 249, President Stuart N. Scott, dated Feb. 2, 1970 (copy on file at LRB). 255 n.34 (1965) (“Comment, Discretionary Reporting”). 47. Agreement between New York State Bar Ass’n and Mead Data Central, 13. Comment, Discretionary Reporting, at 251. dated Jan. 5, 1971 (copy on file at LRB). 14. Id. at 252. 48. Grant of right to publish copyrighted matter pursuant to section 438 of 15. A.L. Goodhart, Reporting the Law, 55 L.Q. Rev. 29, 33 (Jan. 1939) the Judiciary Law to New York State Bar Association and Mead Data Central, (“Goodhart”). Inc., by the Secretary of State of the State of New York, made on the 29th day 16. James M. Flavin, Computerized Legal Retrieval in New York, in ABA Standing of April, 1971 (copy on file at LRB). Committee on Law and Technology, Automated Legal Research at 49 (1972). 49. Report by James M. Flavin to NYSBA Executive Committee, dated Nov. 24, 17. Letter from Stephen E. Furth to James M. Flavin, dated Dec. 20, 1963 (on 1971 (copy on file at LRB). file at LRB). 50. Letter, agreement from Jerome S. Rubin, MDC, to John Berry, NYSBA, 18. Charles P. Bourne & Trudi Bellardo Hahn, A History of Online Information dated Dec. 28, 1971 (copy on file at LRB). Services, 1963–1976, at 230 (2003) (hereinafter Bourne and Hahn). 51. Letter, Notice to New York State Bar Ass’n from Mead Data Central, Inc., 19. Letter from James M. Flavin to John F. Horty, dated Feb. 20, 1964 (copy on dated Apr. 7, 1972 (copy on file at LRB). file at LRB). 52. Operating Agreement between York State Bar Ass’n from Mead Data 20. Bourne & Hahn at 237. Central, Inc., dated June 30, 1972 (copy on file at LRB). 21. 1964 Ops. Atty. Gen. 43, 44. 53. Bourne & Hahn at 300. Under a July 1972 agreement, NCAIR, the succes- sor to LCELR, assisted MDC in defining the federal materials to be included 22. Id. in LEXIS and sponsored LEXIS with respect to those materials. A Proposal for a 23. Letter from James M. Flavin to Hon. Stanley H. Fuld, dated Sept. 16, 1964 Subscription to LEXIS, draft dated Jan. 3, 1973, at 3-4 (on file at LRB). (copy on file at LRB). 54. L. 1988, ch. 137, codified at Judiciary Law § 434(5)(b). 24. L. 1965, ch. 467, amending Judiciary Law § 438. 55. Gary D. Spivey, Public Access to Court Decisions Expanded, 78 N.Y. St. B.J. 25. Agreement between State of New York and International Business (Jan. 2006) p. 32. Machines Corp., dated Feb. 19, 1964 (copy on file at LRB). 56. Commission on Public Access to Court Records, Report to the Chief Judge 26. Letter from James M. Flavin to Hon. Stanley H. Fuld, dated May 14, 1965 of the State of New York at 5 (Feb. 2004) (http://www.courts.state.ny.us/ip/ (copy on file at LRB). publicaccess/Report_PublicAccess_CourtRecords.pdf) (accessed Aug. 28, 27. Agreement between James M. Flavin and International Business Machines 2007). Corp., dated June 28, 1965 (copy on file at LRB). 57. Id. at 13. 28. Letter from James M. Flavin to Richard F. Jones, Reporter of Decisions, 58. Press Release, New York Unified Court System, New York Courts to Make Supreme Court of Washington, dated Mar. 18, 1966 (copy on file at LRB). “Virtual” Case Files Available on the Internet (July 6, 2006) (http://www.courts. 29. Letter from James M. Flavin to Richard F. Jones, Reporter of Decisions, state.ny.us/press/pr2006_15.shtml) (accessed Aug. 28, 2007). Supreme Court of Washington, dated June 22, 1966 (copy on file at LRB). 59. Goodhart at 33. 30. Id. 60. Press Release, New York Unified Court System, New York Court Records 31. Id. To be Posted on the Internet (Feb. 25, 2004) (http://www.nycourts.gov/press/ 32. Letter from Warren M. Anderson, Chairman of New York State Senate pr2004_21.shtml) (accessed Aug. 28, 2007). Committee on Finance, to James M. Flavin, dated Aug. 30, 1966 (on file at LRB). 33. Agreement between James M. Flavin and Data Scan Inc., dated Sept. 30, 1966 (on file at LRB). 34. Letter from James M. Flavin to Layman E. Allen, Jurimetrics Journal, dated July 11, 1967 (copy on file at LRB). 35. Agreement between James M. Flavin and International Business Machines Corp., dated July 10, 1967 (on file at LRB). 36. Address to Executive Committee, New York State Bar Ass’n, Jan. 25, 1968, in Stanley H. Fuld, Computers in the Law, 40 N.Y. St. B.J. 230, 233 (June 1968). 37. Id. at 231. 38. Letter from John F. Horty, Aspen Systems Corp., to James M. Flavin, dated Apr. 19, 1969 (on file at LRB). 39. Letter from James M. Flavin to Dr. Howard F. Miller, New York State Assembly Ways and Means Committee, dated May 2, 1968 (copy on file at LRB). 40. Letter from Ralph E. Welsh, Data Corp., to James M. Flavin, dated March 19, 1969 (on file at LRB). 41. Letter from James M. Flavin to Leon S. Wilson, Director of Administrative Procedure, State of New Jersey, dated Oct. 2, 1969 (copy on file at LRB). 42. Memorandum from James M. Flavin to Executive Committee of the New York State Bar Ass’n, dated Dec. 1, 1969 (copy on file at LRB).

NYSBA Journal | February 2008 | 19 BURDEN OF PROOF BY DAVID PAUL HOROWITZ

DAVID PAUL HOROWITZ ([email protected]) practices as a plaintiff’s personal injury litigator in New York City. Mr. Horowitz teaches New York Practice at New York Law School, is a member of the Office of Court Administration’s CPLR Advisory Committee, and is a frequent lecturer and writer on the subject.

“Can’t We Just Talk?”

eaders of last issue’s column defense counsel to interview one or this reasoning extended to the post- were alerted1 to the fact that on more of the plaintiff’s treating physi- note of issue period. “These limits on November 27, 2007, the Court cians bedeviled trial courts throughout disclosure are imposed ‘not because of R 6 of Appeals reversed the decisions the state. The debate in the trial courts the physician-patient privilege, which of two appellate divisions, in three involved only post-note of issue inter- is generally waived by bringing a mal- cases,2 and held that a plaintiff may views because the consensus was that practice action, but by the very design be compelled to furnish a HIPAA- the interviews were not permitted pre- of the specific disclosure devices avail- compliant authorization permitting, note of issue, based upon a 1988 Second able in CPLR article 31.’”13 but not compelling, a treating physi- Department decision, Zimmerman v. Acknowledging the broad power cian of the plaintiff to be interviewed Jamaica Hospital, Inc.7 of a trial court to supervise disclo- by defense counsel.3 Six judges signed Trial court decisions were all over sure, the Second Department issued a the opinion authored by Judge Read, the map, ranging from those order- reminder to the bench that the super- while Judge Pigott issued a dissenting ing the exchange of the authoriza- vision by the trial court must be in opinion. tions without conditions;8 to those accordance with Article 31 and the In arriving at its holding, the Court ordering the exchange, providing Uniform Rules. Citing to prior rulings, framed the issue in terms of a par- defense counsel furnished disclosure the court noted that neither Article ty’s right, via “informal discovery,” to the plaintiff’s counsel of notes and 31 nor the Uniform Rules “authorize to interview witnesses as part of trial other writings emanating from the private, ex parte interviews as a dis- preparation. The Court relied almost interviews;9 to those that denied the closure device. Rather, compulsion of exclusively upon two of its prior opin- exchange outright, reasoning that such unsupervised, private and unre- ions: its seminal decision in Niesig v. nothing in Article 31 of the CPLR or corded interviews plainly exceeds the Team 1,4 and its return to Niesig, ear- the Uniform Rules contemplated, let ambit of article 31.”14 lier in 2007, in Siebert v. Intuit.5 Issues alone compelled, the exchange of such The Second Department concluded unique to treating physician inter- authorizations.10 by issuing another reminder: strin- views, the physician-patient privilege gent limitations are placed on a court’s and HIPAA, were addressed only after Appellate Divisions Say No authority to order post-note of issue the Court determined that interview- The Second Department weighed in disclosure. “[A]fter the filing of a note ing treating physicians qua witnesses first and, in unanimous decisions in of issue, a court’s authority to allow is part of traditional trial preparation. Arons v. Jutkowitz11 and Webb v. N.Y. additional pretrial disclosure is limited The Court then examined whether the Methodist Hospital,12 held that neither to a party’s demonstration of ‘unusual physician-patient privilege or HIPAA Article 31 nor the Uniform Rules includ- or unanticipated circumstances.’ In the imposed a bar, or otherwise limited ed a provision authorizing defense absence of additional statutory author- such interviews. counsel to meet privately with a plain- ity, the ‘courts should not become tiff’s treating physicians. The court involved in post-note of issue trial Trial Courts Say Yes, No, was unable to find statutory or regula- preparation matters and should not and Maybe tory authority to compel a plaintiff to dictate to plaintiffs or defense coun- A little history is in order. For a num- execute an authorization permitting sel the terms under which interviews ber of years the question of whether a such an interview, explaining that this with non-party witnesses may be con- trial court could compel a plaintiff to was the reason for the long-standing ducted.’”15 furnish defense counsel with a HIPAA- rule that interviews prior to the filing Three months after the decisions compliant authorization permitting of the note of issue are prohibited, and in Arons and Webb, a divided Fourth

20 | February 2008 | NYSBA Journal Department, by a three-to-two deci- with the Second Department and certainly available to attorneys, are sion in Kish v. Graham,16 reached the the majority in this case that such not only more expensive, inconve- same conclusion. The majority in Kish interviews are not covered under nient, and burdensome than infor- articulated four reasons for barring the the CPLR article 31 discovery pro- mal ones, but they also would have practice: visions, but we note that CPLR the effect of significantly interfer- First, there are no provisions in article 31 does not authorize trial ing with the practice of medicine. the law permitting such informal preparation interviews with any To require a physician to submit disclosure. Second, formal discov- nonparty witnesses. Thus, the fact to depositions or interrogatories ery procedures are in place that that CPLR article 31 does not autho- rather than merely being asked would allow an “on the record” rize such interviews is irrelevant to a question by a defense attorney discussion with such witnesses in the issue here, i.e., whether inter- could significantly impact that the presence of counsel for the views of nonparty fact witnesses physician’s availability to practice opposing party. Third, we are con- are permissible in preparation for medicine. Instead of communi- cerned here with witnesses with trial. It is beyond question that cating with an attorney during a privileged medical information, a defense attorney may interview 10-minute telephone call, a physi- not merely witnesses who will tes- an eyewitness to a motor vehicle cian could be required to attend tify to nonprivileged facts. Thus, the established case law that per- collision in preparation for trial a four-hour deposition or to pro- mits equal access to fact witnesses without resorting to CPLR article vide a time-consuming response to does not apply here. Although a 31 discovery devices. While physi- detailed and lengthy interrogato- person’s relevant medical history cians are, indeed, different because ries. Inasmuch as the plaintiff has is placed at issue when an action of their obligation to protect the waived the physician-patient priv- is commenced by or on behalf of confidentiality of their communi- ilege, we see no need to require that person, access to that medical cations with patients, we perceive such burdensome procedures for history is not without boundar- no basis to treat the physician wit- physician witnesses when they are ies. Unsupervised interviews with nesses differently from other fact not required for other witnesses. treating physicians in an ex parte witnesses once the plaintiff waives setting may result in the intention- The majority expresses deep con- the physician-patient privilege. al or inadvertent revelation of a cern over the possibility that a Indeed, the Court of Appeals in person’s irrelevant medical history. physician may reveal information Koump specifically stated that a For example, information concern- beyond the scope of the authoriza- party should not be permitted to ing a sexually transmitted disease tion. The authorization, however, assert the privilege in order to pre- may be intentionally or inadver- can be limited to the information tently revealed during a discussion vent the other party’s access to relevant to the mental or physi- of the treatment of lung cancer. evidence.18 cal condition at issue, and we see Fourth, and perhaps most impor- The dissenters addressed each of no reason to assume that phy- tantly, we can conceive of no rea- sicians will not adhere to those son for allowing a practice that the four concerns raised by their col- limits. Furthermore, we note that concededly is not permitted prior leagues: an authorization permits, but does to the filing of a note of issue to be Having concluded that there is not require, a physician to provide permitted after the note of issue is filed. no legal impediment to such trial the requested information. Finally, * * * preparation interviews, we respond the authorization, even if ordered As the Second Department suc- to the majority’s “compelling” rea- by a court, remains voluntary in cinctly wrote, “compulsion of such sons for prohibiting such inter- the sense that the plaintiff has vol- unsupervised, private and unre- views with what we perceive to untarily commenced the action in corded interviews plainly exceeds be even more compelling reasons which her decedent’s medical con- the ambit of [CPLR] article 31.”17 for permitting them. First, as noted dition is at issue and has waived above, the absence of any formal the physician-patient privilege. The two dissenting Fourth Depart- rule permitting such interviews is While the action is pending, the ment justices viewed the issue differ- irrelevant; there are no formal rules plaintiff cannot use the physician- ently: permitting trial preparation inter- patient privilege as a sword and a We conclude that post-note of views of any nonparty witnesses. shield.19 issue interviews of fact witnesses, In response to the majority’s sec- Court of Appeals Says Yes whether physicians or lay wit- ond and fourth reasons for prohib- nesses, constitute trial preparation iting such interviews, we note that Arons, Webb and Kish were consol- rather than discovery. We agree formal discovery techniques, while idated on appeal. After chronicling the facts and history of the three

NYSBA Journal | February 2008 | 21 cases before it, the Court of Appeals covery devices. As the dissenting health care professional. In sum, began its analysis, under the head- Justices pointed out in Kish, chok- an attorney who approaches a non- ing “Informal Discovery of Nonparty ing off informal contacts between party treating physician (or other Treating Physicians,”20 with an exten- attorneys and treating physicians health care professional) must sim- sive review of Niesig and Siebert. invites the further unwelcome con- ply reveal the client’s identity and Emphasizing the importance of sequence of “significantly interfer- interest, and make clear that any “informal discovery,” the Court con- ing with the practice of medicine”: discussion with counsel is entirely cluded that nonparty treating physi- “[i]nstead of communicating with voluntary and limited in scope to cians should not be treated any dif- an attorney during a 10-minute the particular medical condition at ferently from the former and current telephone call, a physician could issue in the litigation.24 be required to attend a four-hour employees of a corporate party whose The Court agreed that “the filing of deposition or to provide a time- interviews were at issue in Niesig a note of issue denotes the completion consuming response to detailed and Siebert, subject to the limitations of discovery, not the occasion to launch and lengthy interrogatories.”22 imposed by those two decisions: another phase of it. While interviews We see no reason why a nonpar- A plaintiff’s concerns that defense may still take place post-note of issue, ty treating physician should be counsel would overreach during inter- at that juncture in the litigation there is less available for an off-the-record views and obtain information beyond no longer any basis for judicial inter- interview than the corporate the scope of the limited waiver of the vention.” Thus, absent “unusual or employees in Niesig or the for- medical privilege was subservient, in unanticipated circumstances,” HIPAA- mer corporate executive in Siebert. the Court’s opinion, to the benefits compliant authorizations must be As an initial matter, a litigant is of “informal discovery”: “This is the demanded by defense counsel, and “deemed to have waived the [phy- same ‘danger of overreaching’ that we any necessary motion practice to com- sician-patient] privilege when, in rejected explicitly in Niesig and implic- pel the exchange of authorizations bringing or defending a personal itly in Siebert, finding it to afford no must be completed, prior to the filing injury action, that person has affir- basis for relinquishing the considerable of the note of issue. 23 matively placed his or her mental advantages of informal discovery.” What the majority of the Court did or physical condition in issue.” The Court relied upon its assump- not explicitly say, but what the deci- This waiver is called for as a mat- tion, set forth in Niesig, that interview- sion makes clear, is that the previously ter of basic fairness: “[A] party ing attorneys would “comport them- accepted restriction limiting nonparty should not be permitted to affirma- selves ethically”: treating physician interviews to the tively assert a medical condition in Again, we “assume that attor- post-note of issue phase of litigation seeking damages or in defending neys would make their identity would no longer apply, something against liability while simultane- and interest known to inter- Judge Pigott pointed out in his dis- 25 ously relying on the confidential viewees and comport themselves sent. So long as the mandates of physician-patient relationship as a ethically.” In Siebert, where the HIPAA are satisfied, the interview of sword to thwart the opposition in executive was privy to informa- a plaintiff’s treating physician can be its efforts to uncover facts critical tion for which the attorney-client conducted at any time. to disputing the party’s claim.”21 privilege had not been waived, we After a lengthy review of HIPAA, considered the risk of improper the Court had no difficulty in deter- The Court followed, and credited, disclosure adequately addressed mining that HIPAA did not act to bar the reasoning of the dissenters in Kish: where the attorney conducting the treating physician interviews: [T]here are no statutes and no rules interview prefaced his question- [T]here can be no conflict between expressly authorizing – or forbid- ing with admonitions designed New York law and HIPAA on the ding – ex parte discussions with to prevent this from happening, subject of ex parte interviews of any nonparty, including the cor- and there was no reason to believe treating physicians because HIPAA porate employees in Niesig and that privileged information had, does not address this subject. the former corporate executive in fact, been disclosed. Here, the Accordingly, the Privacy Rule does danger that the questioning might in Siebert. Attorneys have always not prevent this informal discov- encroach upon privileged matter is sought to talk with nonparties who ery from going forward, it merely are potential witnesses as part of surely no greater than was the case superimposes procedural prereq- their trial preparation. Article 31 in Siebert since the subject matter uisites. As a practical matter, this does not “close off” these “avenues of the interview or discussion – a means that the attorney who wish- of informal discovery,” and rel- patient’s contested medical condi- es to contact an adverse party’s egate litigants to the costlier and tion – will be readily definable and treating physician must first obtain more cumbersome formal dis- understood by a physician or other

22 | February 2008 | NYSBA Journal a valid HIPAA authorization or a After reviewing the disclosure Article 31, it likewise follows that court or administrative order; or available pursuant to the CPLR and Article 31 must provide some basis must issue a subpoena, discovery Uniform Court Rules, Judge Pigott for the relief. Given the fact that the request or other lawful process continued: “Our holding today sub- Legislature has narrowly limited a litigant’s obligation to execute with satisfactory assurances relat- stantially modifies this carefully craft- authorizations to those situations ing to either notification or a quali- ed scheme by allowing one party to 26 where an adverse party is seek- fied protective order. unilaterally obtain, in a manner not ing copies of medical records, and The Court also struck those provi- authorized by Article 31, information nothing more, it is my view that sions in the trial court orders in Arons about an adverse party’s medical con- defendants here are not entitled to 30 and Webb directing “defense counsel dition.” authorizations to conduct informal, to hand over to his adversary copies Judge Pigott found the majority’s ex parte interviews with plaintiffs’ of all written statements and notations reliance on Niesig and Siebert mis- treating physicians during pretrial obtained from the physician during the placed: discovery.32 private interviews, any audio or video Our holdings in Niesig and Siebert recordings or transcripts, and inter- focused primarily on the definition Finally Judge Pigott objected to the view memoranda or notes (excluding of a party for purposes of discovery. circumvention of the note of issue’s the attorneys’ observations, impres- Niesig involved the narrow issue significance in marking the end of sions or analyses). Imposition of these of whether counsel could, without discovery: 27 conditions was improper.” running afoul of Disciplinary Rule Under our holding today, how- In a footnote, the Court made the 7-104(A)(1), conduct informal, ex ever, defense counsel would be following statement: parte interviews of non-manageri- permitted to obtain court-ordered, A plaintiff’s concerns that defense counsel would overreach during interviews was subservient, in the Court’s opinion, to the beneﬁ ts of “informal discovery.”

We take no issue with those por- al, non-controlling employees of an HIPAA-compliant authorizations tions of the Arons and Kish orders opposing party who witnessed an at any time and use them at any that required defense counsel to accident; Siebert addressed the nar- time both prior to and after the fil- identify themselves and their inter- row issue of whether counsel could ing of a note of issue and certificate est, to limit their inquiries to the conduct an informal, ex parte inter- of readiness. Although defendants condition at issue, and to advise view of a former employee of an refer to such informal interviews as physicians that they need not com- opposing party. Neither Niesig nor “trial preparation,” they are really ply with the request for an inter- Siebert involved a party’s invoca- nothing more than post-note of view. We believe that the execution tion of Article 31 to obtain the issue discovery, which is expressly of a valid authorization and the fact informal interviews, nor did the prohibited by the Uniform Rules that the physician, under HIPAA, parties in those cases need the unless the party seeking the dis- is permitted, but not required, to assistance of the opposing party. In covery can demonstrate “unusual grant the interview will address neither instance was the protection or unanticipated circumstances these concerns in the future.28 of medical records and information develop[ed] subsequent to the fil- implicated.31 ing of the note of issue and cer- The tenor of Judge Pigott’s solitary tificate of readiness which require dissent was set in his opening sentence: In Judge Pigott’s view, the need for additional pretrial proceedings to “Our holding today grants defense defense counsel to seek judicial inter- prevent substantial prejudice.”33 counsel the unprecedented ability to vention in order to obtain the needed compel a plaintiff, who has placed his HIPAA-compliant authorization Conclusion or her mental or physical condition in takes the matter out of the realm While the majority of the Court is san- controversy, to execute authorizations of informal discovery and into the guine that defense counsel will con- allowing defense counsel to speak to realm of formal disclosure, which duct themselves in accordance with his or her treating physicians outside is supervised by the trial courts. the parameters of the Arons decision, the formal discovery process and with- Because trial courts are constrained only time will tell whether the unsu- out the plaintiff being present.”29 to limit their supervision of disclo- pervised and largely unfettered access sure to those devices delineated in permitted defense counsel to inter-

NYSBA Journal | February 2008 | 23 view plaintiffs’ treating physicians will 6. See, e.g., “HIPAA . . . Help!,” N.Y. St. B.J. (June 20. 2007 NY Slip Op. 9309, 2007 WL 4163865 2005) p. 20. (2007). “streamline discovery and foster the 7. 143 A.D.2d 86, 531 N.Y.S.2d 337 (2d Dep’t 21. Id. (citations omitted). prompt resolution of claims,”34 one 1988); see also Levandes v. Dines, 153 A.D.2d 671, 544 22. Id. (citations and footnote omitted) (emphasis of the stated goals in Niesig quoted by N.Y.S.2d 864 (2d Dep’t 1989). in original). the Arons court. Only time will tell too 8. See, e.g., Smith v. Rafalin, 6 Misc. 3d 1041(A), 800 23. Id. whether Arons will be the last word on N.Y.S.2d 357 (Sup. Ct., N.Y. Co. 2005). 24. Id. (citation omitted). this issue, or simply the opening salvo 9. See, e.g., Keshecki v. St. Vincent’s Med. Ctr., 5 Misc. 25. “Under our holding today, however, defense of an ongoing struggle to regulate this 3d 539, 785 N.Y.S.2d 300 (Sup. Ct., Richmond Co. 2004). counsel would be permitted to obtain court-ordered, and other permutations of “informal HIPAA-compliant authorizations at any time and 10. See, e.g., Brown v. Horbar, 6 Misc. 3d 780, 792 discovery.” ■ use them at any time both prior to and after the N.Y.S.2d 314 (Sup. Ct., N.Y. Co. 2004). filing of a note of issue and certificate of readiness.” 11. 37 A.D.3d 94, 825 N.Y.S.2d 738 (2d Dep’t 2006). Id. 1. Print scheduling did not permit a discussion of this issue in the last column. 12. 35 A.D.3d 457, 825 N.Y.S.2d 645 (2d Dep’t 2006). 26. Id. 2. Arons v. Jutkowitz, 37 A.D.3d 94, 825 N.Y.S.2d 13. Arons, 37 A.D.3d at 97. 27. Id. 738 (2d Dep’t 2006); Webb v. N.Y. Methodist Hosp. 35 14. Id. at 100 (citation omitted). 28. Id. at n.6. A.D.3d 457, 825 N.Y.S.2d 645 (2d Dep’t 2006); Kish v. 29. Id. Graham, 40 A.D.3d 118, 833 N.Y.S.2d 313 (4th Dep’t 15. Id. at 100–01 (citation omitted). 2007). 16. 40 A.D.3d 118, 833 N.Y.S.2d 313 (4th Dep’t 30. Id. 3. Arons v. Jutkowitz et al., 2007 NY Slip Op. 9309, 2007). 31. Id. (citations omitted). 2007 WL 4163865 (2007). 17. Id. at 123–24 (citations omitted). 32. Id. (citation omitted). 4. 76 N.Y.2d 363, 559 N.Y.S.2d 493 (1990). 18. Id. at 128–29 (citation omitted). 33. Id. (citation omitted). 5. 8 N.Y.3d 506, 836 N.Y.S.2d 527 (2007). 19. Id. at 129. 34. Id.

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24 | February 2008 | NYSBA Journal

Eugene C. Gerhart (1912–2007), Jackson Biographer

By John Q. Barrett

n October 1946, Justice Robert H. Jackson was newly New York, to give a major speech2 and then returned to back in the United States and again working at the Washington for the start of the Supreme Court’s term. He ISupreme Court after more than a year’s absence to prepared and participated in many oral arguments and serve as the chief prosecutor of Nazi war criminals in worked on Court cases, including some that were dead- Nuremberg. locked and being reargued for him to supply the deciding On October 28, 1946, Justice Jackson traveled to Atlantic vote. He met in numerous Court conferences with fellow City, New Jersey, for the American Bar Association’s Justices to discuss and vote on cases. He also worked on annual convention. That evening, he spoke to the ABA his first opinions of the new term. and the general public, including national and interna- Justice Jackson’s Nuremberg work also continued tional press. His address, titled “The Legal Profession in during October 1946. He met with War Department and a World of Paradox,” was a hopeful account of his expe- State Department colleagues and communicated regu- riences with legal systems and lawyers across Europe, larly with his former prosecutorial office and staff, as including in Germany, and with colleagues from the prisoners’ appeals were rejected in Germany and then Soviet Union.1 as their executions were carried out. During that month, Justice Jackson’s October 1946 trip to Atlantic City was, aside from his speaking engagement, his first real respite after a crazy, grueling month capping 17 pre- JOHN Q. BARRETT ([email protected]) is Professor of Law, St. John’s vious months of Nuremberg’s intense work. Jackson University School of Law, New York City, and Elizabeth S. Lenna Fellow, had, at the start of October, returned from Nuremberg Robert H. Jackson Center, Jamestown, New York (www.roberthjackson.org). to Washington. He made an immediate trip to Buffalo,

26 | February 2008 | NYSBA Journal Jackson wrote his final Nuremberg report to President Truman, met privately with him and others to discuss Nazi war crimes and other matters regarding Germany, and formally resigned his appointment as chief prosecutor.3 He also prepared his Atlantic City speech and, after the Supreme Court adjourned on Monday, October 28th, traveled with his wife, Irene, to the ABA meeting there. Because the Supreme Court was in recess for the remainder of that week, and because Jackson enjoyed gatherings with fellow lawyers, and because he needed a break, he stayed in Atlantic City, at the Claridge Hotel, for more than three days. He rested, but he also attended ABA section meetings and functions. On Thursday, October 31st, Jackson attended the ceremony at which the ABA awarded its annual Erskine M. Ross essay con- test prize. Jackson met the winner, a 34-year-old lawyer from Binghamton, New York, named Eugene C. Gerhart. Jackson was impressed by Gerhart’s essay4 and by the young man himself who was a graduate of Princeton University (1934) and Harvard Law School (1937), had served in 1934 as a secretary to World Court judge Manley Hudson in Geneva, Switzerland, had practiced law in New Jersey, had served during World War II in the United States Navy and, most recently, had opened his own law office in Binghamton.5 Eugene Gerhart, who was at least equally impressed with Justice Jackson, followed up on their meeting. Gerhart wrote to Jackson and they began to correspond. He saw Jackson a little more than a year later, when they both attended the New York State Bar Association’s annual meeting in New York City; they had breakfast together at the University Club. As their acquaintance developed, Gerhart disclosed that he wanted to write Justice Jackson’s biography. Jackson was skeptical – he regarded himself as a life still in progress, he was uncertain about the significance of such an undertaking, and he was unwilling, as a sitting Justice, to talk very much about Supreme Court matters. But Jackson also liked Gerhart. Indeed, Jackson certainly saw something of himself in this young, talented, ambitious, upstate New York lawyer who was inclined toward language, ideas and writing. Justice Jackson agreed to cooperate and Gerhart commenced to work on interviewing, researching and writing about Jackson’s life and career. Over the next seven years, Gerhart interviewed Jackson at least 10 times. Gerhart began writing, and he eventually sent Jackson draft chapters and received his comments on the work in progress. In spring 1954, Justice Jackson suffered a serious heart attack, and he died suddenly that fall. This unexpectedly early conclusion to Jackson’s life affected Gerhart person- ally. It also significantly diminished that era’s interest in Robert H. Jackson. Once people pass on, it takes years and perspective, including the context created by later

NYSBA Journal | February 2008 | 27 developments and lives, before history really can identify Throughout his life, Eugene Gerhart was animated giants in their lasting stature and greatness. by his knowledge and memories of Robert H. Jackson. Eugene Gerhart, to his great credit, nonetheless per- In 2000, he contributed a speech about Jackson to the severed during the mid-1950s in his work on Robert H. 100th anniversary celebration of the Jamestown (NY) Bar Jackson. In 1958, Gerhart published his Jackson biogra- Association.10 On May 1, 2001, Gerhart was the inaugural phy.6 In 1961, he published a second book, focused on speaker at the newly created Robert H. Jackson Center Jackson’s Court work.7 And as the years have passed in Jamestown.11 Its Web site includes a video of Gerhart since Jackson’s time, Gerhart’s writing about his friend discussing, in his Binghamton law office in June 1999, the and hero has been read widely and increasingly trea- qualities he admired in Justice Jackson.12 In 2004, Gerhart sured. Gerhart’s own knowledge, his perspective as a wit- published a final Jackson tribute essay.13 He also became ness and his writing are important parts of why Robert one of the Jackson Center’s generous leading benefac- H. Jackson has received history’s attention and growing tors. appreciation. Eugene Clifton Gerhart died on Saturday, October 27, Happily, Eugene Gerhart lived a very long, produc- 2007, at age 95. He was learned, literate and wise, a law- tive and healthy life. He remained a – the – lawyer yer’s lawyer, a true gentleman and a trailblazer. I am very of Binghamton and its region, founding the firm that grateful that I had the opportunity to be his student and is today Coughlin & Gerhart LLP. He also continued friend, and that I get to walk in some of his footprints. ■ to write, including one book published during Justice Jackson’s lifetime8 and five published thereafter.9 Eugene 1. Jackson’s speech, as published in 33 Am. Bar Ass’n J. 24–27 & 85–89 (Jan. 1947), is available as a PDF file at www.roberthjackson.org/documents/ Gerhart also was for many years Editor of the New York Lawyers%20Today.pdf. Contemporaneous press coverage included Kalman State Bar Association Journal and a member of the Board Seigel, U.S.-Soviet Barrier Held Deep-Seated, N.Y. Times, Oct. 29, 1946, at 8. of Editors of the American Bar Association Journal. 2. Justice Jackson delivered this speech, The Nürnberg Trial: Civilization’s Chief Salvage from World War II, at the University of Buffalo’s Centennial Convocation on October 4, 1946. It is available as a PDF file, as published in Vital Speeches of the Day, at www.roberthjackson.org/documents/The%20Nurnberg%20Trial. Pro Bono Opportunities Guide pdf. 3. Jackson’s final report, which he delivered to President Truman on October Now Online 7, 1946, is available as a PDF file at www.roberthjackson.org/documents/ Final%20Report%20to%20the%20President.pdf. 4. See Eugene C. Gerhart, Labor Disputes: Their Settlement by Judicial Process, 32 www.nysba.org/volunteer Am. Bar Ass’n J. 752–56 & 801–08 (Nov. 1946). 5. As to the last point, see Eugene C. Gerhart, Going It Alone, 32 Am. Bar Ass’n Looking to volunteer? J. 397–400 (July 1946). This easy-to-use guide will help you find 6. See Eugene C. Gerhart, America’s Advocate: Robert H. Jackson the right opportunity. (Indianapolis, IN: The Bobbs-Merrill Co., Inc., 1958). You can search by county, by subject area, 7. See Eugene C. Gerhart, Supreme Court Justice Jackson: Lawyer’s Judge (Albany, NY: Q Corp., 1961). and by population served. 8. See Eugene C. Gerhart, American Liberty and “Natural Law” (Boston, MA: The Beacon Press, 1953) (Foreword by Roscoe Pound).

9. See Eugene C. Gerhart, Lawyer’s Treasury: An Anthology Selected by the Board of Editors from Articles . . . . Representative of the Best to Appear in the Forty-Year History of the American Bar Association Journal (Indianapolis, IN: The Bobbs-Merrill Co., Inc., 1956); Eugene C. Gerhart, Quote It! Memorable Legal Quotations: Data, Epigrams, Wit, and Wisdom from Legal and Literary Sources (New York, NY: C. Boardman Co., 1969); Eugene C. Gerhart, Arthur T. Vanderbilt, The Compleat Counsellor (Albany, NY: Q Corp., 1980); Eugene C. Gerhart , Quote It II: A Dictionary of Memorable Legal Quotations (Buffalo, NY: William S. Hein Co., 1988); Eugene C. Gerhart , Quote It Completely!: World Reference Guide to More than 5,500 Memorable Quotations from Law and Literature (Buffalo, NY: William S. Hein & Co., 1998).

10. See Eugene C. Gerhart, A Tribute to a Great American Lawyer (delivered on his behalf, June 7, 2000, at Chautauqua Institution, Chautauqua, NY), available at www.roberthjackson.org/Man/theman2-6-4/. Questions about pro bono service? 11. See Eugene C. Gerhart, America’s Advocate (delivered May 1, 2001, at the Visit the Pro Bono Dept. Web site for more Robert H. Jackson Center, Jamestown, NY), available at www.roberthjackson. information. www.nysba.org/probono org/Man/SpeechesAbout_AmericaAdvocate. (518) 487-5641 12. See www.roberthjackson.org/Center/videolist. [email protected] 13. See Eugene C. Gerhart, The Legacy of Robert H. Jackson, 68 Albany L. Rev. 19–22 (2004), available as a PDF file at www.roberthjackson.org/documents/ Gerhart%20(final).pdf.

28 | February 2008 | NYSBA Journal

JACK BUNKER (Jack.Bunker@ Bunkerlaw.com) practices in Washington, D.C., in the Law Offices of John R. Bunker, Esq. (www.Bunkerlaw.com). He graduated from Florida State University (B.S.) and St. John’s University School of Law, and is a member of the bars of New York, California, Georgia and the District of Columbia.

Saving Clients From Themselves Immigration Compliance Is Less About Immigration Law Than Good Legal Advice By John R. Bunker

Too many New York lawyers believe immigration law of 24 criminal arrests in 1999, ICE made 742 arrests in offers neither sufficient luster nor lucre. Yet, according 2007 through July 31 alone – an increase of 3100%.5 These to the last census, New York ranks third among states arrests cut across industries and geography, as the follow- in terms of estimated undocumented alien population.1 ing headlines from recent ICE news releases establish:6 Irrespective of one’s personal feelings about illegal immi- • Company executives sentenced for hiring illegal gration, this much is apparent: employing unauthorized alien workers (San Diego, CA); aliens violates the law. The potential gravity of these vio- • Wichita company and its officers plead guilty to lations may not be sufficiently clear to employers or New knowingly hiring illegal aliens (Wichita, KS); York attorneys. • Company president, 10 others, charged in worksite Many lawyers, for instance, may not realize that know- probe of Arizona drywall and stucco firm (Tucson, ingly employing 10 unauthorized aliens in a 12-month AZ); period is not only a felony punishable by up to five years’ • Guilty plea in government’s probe of immigration imprisonment,2 it also serves as a RICO predicate felony violations at IFCO Systems (Albany, NY); punishable by an additional five years’ imprisonment, • Three executives of national cleaning company fines and even forfeiture.3 Clients who own franchised indicted for harboring illegal aliens and evading businesses may not appreciate that a guilty plea or convic- taxes (Grand Rapids, MI); tion for hiring illegal workers may be cause to terminate • 55 illegal aliens working for state janitorial contrac- their franchise agreements.4 If the client has borrowed tor arrested by ICE (Tallahassee, FL); against his or her home to secure financing for a franchise • Employers in Arkansas, Kentucky and Ohio hit with business, loss of franchise rights could constitute an event criminal charges in connection with illegal alien of default under borrowing instruments. employment schemes (Washington, DC); Immigration and Customs Enforcement (ICE) has seen • ICE executes federal criminal search warrants at an explosion in activity in recent months. Media accounts Koch Foods and arrests more than 160 on immigra- in this instance have not been exaggerated. From a total tion charges (Cincinnati, OH).

30 | February 2008 | NYSBA Journal These arrests should make clients sit up and take finding of constructive knowledge based upon receipt of notice. Lawyers should be advising their clients of such a letter. the dramatic consequences for violations, which many Compliance in this sense, however, will not launder believe would be the equivalent of a traffic ticket. Some constructive knowledge gleaned from other sources. The employers have been told that until the Department of safe harbor merely prevents the no-match letter from Homeland Security (DHS) generates “no-match” letters, being used as evidence. “If in the totality of circumstanc- employers have no duty to act. For employers who may es, other independent evidence exists to prove that an already have constructive knowledge of a potential illegal employer has constructive knowledge, the employer may employment situation, this advice could not be more wrong.7 still face liability.”13 The safe harbor, thus, has virtually no For the client who thinks there might be a problem, there import to the employer with constructive knowledge of a already is a problem. Attorneys, however, can provide the problem. “DHS may find that the employer had construc- fix, and more important, they can demonstrate to their tive knowledge from other sources.”14 clients how an immigration compliance program is pen- These sanctions have teeth. A scheme of non-exclu- nies on the dollar. sive penalties allows for civil fines15 (ranging from up to $2,200 for a first offense, to up to $11,000 after two The Law offenses) as well as criminal fines of up to $3,000, and The Immigration and Nationality Act (the “Statute” or six months’ imprisonment.16 It must be emphasized that the “Act”) makes it unlawful “to hire . . . for employ- the Statute imposes these fines per alien; these sums can ment in the United States an alien knowing the alien is multiply with breathtaking speed. an unauthorized alien . . . with respect to such employ- A criminal violation will be found where the employer ment.”8 The Code of Federal Regulations defines “unau- engages in a “pattern or practice” of infractions. “The thorized” as meaning “with respect to the employment term pattern or practice means regular, repeated, and Many employers ﬁ gure that they can disavow knowledge of a worker’s immigration status. This misguided policy can have catastrophic results. of an alien at a particular time, that the alien is not at that intentional activities, but does not include isolated, spo- time either (A) an alien lawfully admitted for permanent radic or accidental acts.”17 Lest the client get too comfort- residence, or (B) authorized to be so employed by this Act able, however, the lawyer must stress that constructive or by the Attorney General.”9 Significantly, the Act makes knowledge is the threshold; the Statute sets the bar low. it unlawful “to continue to employ the alien . . . knowing Moreover, the Act treats continuing to employ the alien the alien is (or has become) an unauthorized alien with with constructive knowledge of unauthorized status as respect to such employment.”10 violating the Statute. Knowledge holds the key. Many employers figure The government will rightly treat as more egregious that they can disavow knowledge of a worker’s immi- the offense of hiring aliens with actual knowledge of their gration status. This misguided policy can have cata- illegal status. “Any person who, during any 12-month strophic results. As the recent final rule promulgated by period, knowingly hires for employment at least 10 indi- the Department of Homeland Security (DHS) provides, viduals with actual knowledge that the individuals are “[t]he term knowing includes not only actual knowledge. aliens described in subparagraph (B) shall be fined under Constructive knowledge is knowledge which may fairly title 18, United States Code, or imprisoned for not more be inferred through notice of certain facts and circum- than 5 years, or both.”18 stances which would lead a person, through the exercise This type of aggravated employment – prohibited of reasonable care, to know about a certain condition.”11 under a section of the Act directed at “harboring” As alluded to above, one recent, if ill-understood aliens – carries with it another even more serious sanc- development merits particular attention. A Final Rule tion: RICO. As most lawyers are at least vaguely aware, issued by DHS concerns employers’ receipt of “no- Congress enacted the Racketeer Influenced and Corrupt match” letters, letters that give an employer prima facie Organizations statute19 as a means to combat organized constructive knowledge of a potential immigration prob- crime.20 Among the many predicate offenses supporting a lem.12 Under new “safe harbor” guidelines, an employer RICO prosecution are “any act which is indictable under who in every other respect complies with DHS safe har- the Immigration and Nationality Act, section 274 (relating bor provisions can, by prompt remedial action, avoid a to bringing in and harboring certain aliens)” and viola-

NYSBA Journal | February 2008 | 31 tion of 18 U.S.C. § 1546 “relating to fraud and misuse of should emphasize to attorney and client alike just how visas, permits, and other documents.”21 high the stakes are. The prospect of RICO prosecution should grab the In Karimi v. BP Products North America, Inc.,30 the client’s attention at several levels. Of obvious interest court denied a preliminary injunction sought by a gas are the criminal penalties: up to 10 years’ imprisonment, station owner who contested the termination of his near-boundless fines, and even forfeitures.22 The RICO franchise agreement by the franchisor. The franchisee statute also provides for a “civil investigative demand,”23 had pled guilty to the misdemeanor offense of continu- something a good lawyer can explain to the client will be ing to employ unauthorized aliens. The court found neither painless nor cheap. Lastly, RICO also has a civil that “Plaintiff’s conviction of knowingly continuing to component, allowing private causes of action for plain- employ unauthorized aliens is an event that is rel- tiffs injured by RICO defendants. evant to the franchise relationship.”31 Furthermore, “by The flat-out awfulness of defending a civil RICO employing illegal aliens, in violation of federal law, the class action cannot be overstated, yet it remains rel- [franchisee] breached . . . three provisions of the [Dealer atively unpublicized despite its excruciating poten- Supply Agreement].”32 The court ultimately found for the tial for expense and embarrassment. What’s more, a franchisor, declaring, “the knowing employment of illegal number of these class actions have recently survived aliens by a franchisee, particularly when that illegal act has 12(b)(6) motions.24 Visionary pleading by the plaintiffs’ become the subject of a criminal conviction, is a significant bar has alleged in these cases that a scheme of illegal hir- act that ‘detracts from and disparages the franchiser’s public ing depressed the wages of legitimate workers. In such image.’”33 cases, a civil RICO action not only provides for attorney With the government’s ability to promote high-profile fees, but also treble damages – including alleged wage arrests, franchisees should be prepared to feel the effects differentials for scores, if not hundreds, of workers dating of increased ICE worksite enforcement. As franchisees back years. Given the costs of beating back such an action, often conduct operations from multiple locations, this the defendant-employer is likely to take cold comfort in may add extra dimensions to the dangers. First, while the the admonition that “[w]hether [the] Plaintiff can prove franchisee itself may be a relatively small operation, the these allegations is a subject for discovery and a motion franchise’s brand name, whether it be a hotel, restaurant for summary judgment.”25 or gas station, may make an ICE arrest a newsworthy Suitably frightened, the client may be tempted to “fire headline. Second, where a franchisee has multiple loca- ’em all.” This creates a raft of different, but still dangerous tions an inspection in one location can lead to inspections problems. The Immigration and Nationality Act prohibits of all the owner’s other operations. Third, should an ICE “Unfair Immigration-related Employment Practices.”26 inspection yield unauthorized workers at multiple loca- Section 1324b prevents an employer from discriminating tions, the specter of “pattern or practice” and the result- against employees based upon impermissible criteria ing criminal sanctions may come to haunt the franchise such as country of origin, foreign appearance or accent. owner. Violating this section leads not only to civil fines – up to Last, and decidedly not least, the personal ramifica- $10,000 for a second offense – but statutory attorney fees tions of losing the franchise could be still more cata- and a statutory private right of action.27 strophic. For the small business, financing and promis- Beyond criminal prosecution and civil fines, employ- sory note terms likely consider a loss of franchise rights ers of illegal aliens who rely on government contracts may as an act of default. Will the owner have pledged his or find themselves out of business. Executive Order 12989 her home as security for a loan to purchase a fast food permits employers of illegal aliens to be debarred from restaurant? Could hiring unauthorized workers lead to a government contracts.28 The threshold for debarment, business owner losing his or her home? These really are buried within the order, is “not in compliance”; debar- the stakes, and the lawyer’s job is to explain them to the ment requires no criminal prosecution. Significantly, once client. DHS or the Justice Department determines a contractor is not in compliance, that ruling cannot be reviewed.29 Crafting an Immigration Compliance Program Both DHS and the case law stress the importance of good- Sidebar: The Franchisee faith efforts to remedy existing unlawful immigrant hir- Of particular interest to the thousands of small businesses ing situations.34 Instituting an immigration compliance in New York is a boilerplate feature of franchise agree- program can save the client hundreds of thousands of ments that provides for termination of the agreement dollars in fines and litigation costs – not to mention avert- upon a conviction or guilty plea which impacts the good- ing criminal prosecution resulting in jail time. The firm will of the franchise itself. A recent decision in the United should take charge of an internal investigation and craft States District Court for the Northern District of Georgia and implement a viable compliance program. For the law firm, as it helps the client, the lawyers help themselves.

32 | February 2008 | NYSBA Journal The firm’s billable hours can be substantial, yet offer a program to prevent and detect violations of law’ may demonstrable net savings to the client.35 produce dramatic reductions in . . . penalties.”41 A good starting point for developing such a program should be, of all things, the Federal Sentencing Guidelines. Conclusion These guidelines, too lengthy to quote in full, nonetheless The United States government has made immigration set out the kind of measures that an employer should enforcement a high-profile priority. Rogue employers implement, such as having a responsible individual can expect rough justice. Many employers already have oversee day-to-day compliance, evaluating the program at least an inkling that they may have immigration prob- periodically for overall effectiveness, communicating the lems, yet they either fail to appreciate the seriousness program’s requirements to appropriate employees, etc.36 of the penalties, or naively believe they can wait and The commentary to these guidelines also offers valu- see what happens. A worthy lawyer should be looking able insight as to what effects the employer’s own con- out for both the client and the law firm. By convincing duct will have on its program’s overall effectiveness. a recalcitrant client of the risks, the lawyer serves both “An organization’s failure to incorporate and follow ends well. ■ applicable industry practice or the standards called for by any applicable governmental regulation weighs 1. Based upon 2000 Census data. It must be mentioned that these data estimate New York’s undocumented population at 489,000. These same data, against a finding of an effective compliance and ethics however, are based upon a total estimate of just under 7 million illegal aliens program.”37 Moreover, “[h]igh-level personnel and sub- in the United States. See http://www.statemaster.com/graph/peo_est_num_ stantial authority personnel of the organization [should] of_ill_imm-people-estimated-number-illegal-immigrants#source. Other unof- ficial published estimates put the figure as high as between 20 million and be knowledgeable about the content and operation of 38 million. See, e.g., http://www.chron.com/disp/story.mpl/metropolitan/ the compliance and ethics program, shall perform their mason/5189638.html. Even extrapolating from a commonly cited figure of assigned duties consistent with the exercise of due dili- 12 million undocumented aliens, New York’s own population would likely exceed a million undocumented aliens. gence, and shall promote an organizational culture that 2. See 8 U.S.C. § 1324(a)(3)(A). encourages ethical conduct and a commitment to compli- 3. See 18 U.S.C. § 1961 et seq. ance with the law.”38 4. See, e.g., Karimi v. BP Prods. N. Am., Inc., 2006 U.S. Dist. LEXIS 25665 (N.D. The technical aspects of the program should be Ga. May 2, 2006). straightforward. If the client acknowledges a suspicion 5. “Arrests by U.S. Immigration and Customs Enforcement for criminal that some employees “might” have immigration issues, violations have increased from 24 in FY 1999 to a record 716 in FY 2006. There the attorney should independently verify the Social Security numbers of all employees. This can be done by cross-referencing the employees’ names and social security numbers against the Social Security Administration’s electronic database. The lawyer should stress and insist upon confidentiality at all times. While the underlying data (such as names and Social Security numbers) may be discoverable by the government, attorneys may generate privileged work product in the form of reports and recommendations that should be guarded closely.39 Once the lawyer completes the investigation and prepares a report of findings, the active elements of the compliance program can be put in motion. This will require all employees whose names and Social Security numbers fail to match to re-verify their information or face termination. The policy must be applied evenly, across all job descriptions and locations, including management. Without fostering implausible “best case” scenarios, the lawyer should impress upon the client that DHS retains the ultimate discretion to prosecute criminal violations. The agency has itself declared, “DHS fully considers all of an employer’s attempts to verify employment authorization status and to employ only authorized workers in determining whether to pursue sanctions. All . . . good-faith efforts militate against such sanctions.”40 As has been noted elsewhere, “[a]n ‘effective

NYSBA Journal | February 2008 | 33 25. Brewer, 2007 U.S. Dist. LEXIS 36156 at *43. have been 742 criminal arrests since the beginning of FY 2007 (through July 31), 26. See 8 U.S.C. § 1324b. and there is anecdotal evidence that companies are taking notice and adjusting their business practices to follow the law.” . 28. See Executive Order No. 12989. Feb. 13, 1996, 61 F.R. 6091, as amended Ex. 6. . Ord. No. 13286, Sec. 19, Feb. 28, 2003, 68 F.R. 10623. 7. See DHS Final Rule (DHS Docket No.2006-0004), enacted at 8 C.F.R. § 29. See id. at § 4(b) 274a (“DHS Final Rule”). “With or without this rule, employers who have 30. 2006 U.S. Dist. LEXIS 25665 (N.D. Ga. May 2, 2006). constructive knowledge that certain employees are unauthorized aliens should 31. Id. at *10. terminate employment or risk sanctions from DHS.” Id. at 42. 32. Id. at *7. 8. 8 U.S.C. § 1324a. 33. Id. at *9 (emphasis added). 9. 8 C.F.R. § 274a.1(a). 34. See, e.g., DHS Final Rule at 28 (“DHS fully considers all of an employer’s 10. 8 U.S.C. § 1324a(a)(2). attempts to verify employment authorization status and to employ only autho- 11. Codified at 8 C.F.R. § 274a.1(l)(1). rized workers in determining whether to pursue sanctions. All of these good 12. See generally DHS Final Rule. faith efforts militate against such sanctions.”); New El Rey Sausage Co., Inc. v. INS, 925 F.2d 1153, 1159 n.6 (citing with approval ALJ’s observation that New 13. Id. at 23. El Rey could have taken several steps including contacting a lawyer). 14. Id. at 13. 35. Not withstanding other penalties which might otherwise be mitigated, 15. 8 C.F.R. § 274a.10(b). These fines are exclusive of civil fines for “paper- such as “paperwork violations,” actual jail time or prospective litigation costs, work” violations – i.e., failing to properly maintain Form I-9’s for each employ- consider the following hypothetical: er – failures that may be met with fines of up to $1,100 for each document not A chain of restaurants employs over 500 people, 100 of whom turn out to properly maintained. See 8 C.F.R. § 274a.10(b)(2). be unskilled workers such as dishwashers, busboys and kitchen staff whose 16. 8 U.S.C. § 1324a (f)(1). names and Social Security numbers fail to match with the Social Security 17. 8 C.F.R. § 274a.1(k). Administration database. Assume that an ICE probe were to uncover the situa- 18. 8 U.S.C. § 1324(a)(3)(A). tion. The employer (for a first offense) faces $2,200 per unauthorized employee for civil fines, as well as $3,000 per unauthorized employee for a “pattern or 19. 18 U.S.C. § 1961 et seq. practice.” One hundred employees at $5,200 each could result in $520,000 in 20. “It is the purpose of this Act . . . to seek the eradication of organized fines alone. crime in the United States by strengthening the legal tools in the evidence An effective compliance program should root out these employees and provide gathering process, by establishing new penal prohibitions, and by providing for their termination. Were the government to step in before such measures enhanced sanctions and new remedies to deal with the unlawful activities of could be completed, the simple step of engaging counsel to investigate and those engaged in organized crime.” Congressional Statement of Findings and remedy the situation would be considered by DHS as evidincing good faith. Purpose, Pub.L. 91–452, § 1. Even if penalties were imposed, even a 50% reduction would save the client 21. 18 U.S.C. § 1961. over a quarter-million dollars. 22. See 18 U.S.C. § 1963. 36. 18 U.S.C. Appx. § 8B2.1. 23. See 18 U.S.C. § 1968. 37. Id. 24. See, e.g., Trollinger v. Tyson Foods, Inc., No. 4:02-CV-23, 2007 U.S. Dist. LEXIS 38. Id. 38882 (E.D. Tenn. May 29, 2007) (denying employer’s motion to dismiss civil 39. See William E. Knepper & Dan A. Bailey, Liability of Corporate Officers RICO action brought by employees alleging scheme to depress wages by hiring and Directors, § 17.07[2] (7th ed. 2004). “Such an inventory may disclose previ- illegal immigrants). See also Mendoza v. Zirkle Fruit Co., 301 F.3d 1163 (9th Cir. ously unknown violations, which cannot be swept under the rug and which 2002) (reversing district court’s finding plaintiff employees lacked standing to may lay out a road map for adverse parties to follow in suits against corporate pursue RICO claims); Williams v. Mohawk Indus., 465 F.3d 1277 (11th Cir. 2006) officials.” Id. (following Zirkle Fruit); Hernandez v. Balakian, 480 F. Supp. 2d 1198 (E.D. Cal. 2007) (employees’ complaint alleging depressed wages as a result of hiring ille- 40. DHS Final Rule at 28. gal aliens survived motion to dismiss); Brewer v. Salyer, 2007 U.S. Dist. LEXIS 41. Knepper & Bailey, supra note 39 at § 17.07[1]. 36156 (E.D. Cal. May, 17, 2007) (same).

NEW YORK STATE BAR ASSOCIATION

New York Criminal Practice Supplement Prices Second Edition 2007 • 342 pp., softbound PN: 51467 New York Criminal Practice, Second Edition covers all aspects NYSBA Members $60 of the criminal case, from the initial identification and questioning by law enforcement officials through the trial and Non-Members $70 appeals. Numerous practice tips are provided, as well as ** Free shipping and handling within the sample lines of questioning and advice on plea bargaining continental U.S. The cost for shipping and and jury selection. The detailed table of contents, table of handling outside the continental U.S. will be authorities and index make this book even more valuable. added to your order. Prices do not include applicable sales tax. 2007 Supplement Editor-in-Chief: Lawrence N. Gray, Esq. Get the Information Edge! The 2007 Supplement brings this comprehensive text up-to- 1.800.582.2452 • www.nysba.org/pubs date, including related updates to case and statutory law. Mention Code: PUB0219

34 | February 2008 | NYSBA Journal BARRY KAMINS ([email protected]) is a partner at Flamhaft, Levy, Kamins & Hirsch and practices criminal law. He is an adjunct professor of law at both Fordham and Brooklyn Law School, author of New York Search and Seizure, President of the New York City Bar Association, and a Vice President of the New York State Bar Association. He is a graduate of Columbia College and received his law degree from Rutgers Law School.

2007 Criminal Law Legislation

By Barry Kamins

his article reviews changes in the Penal Law, certain circumstances. Both the detention and the super- Criminal Procedure Law and several related stat- vision can last for the remainder of the sex offender’s Tutes that were enacted in the last legislative ses- life. sion and signed into law by the Governor. What follows Nineteen other states have enacted similar legislation is an overview of the changes; the reader is encouraged and approximately 2,700 men are being held involun- to read the new statutes to appreciate their nuances and tarily in civil commitment programs around the country. complexities.1 In upholding the constitutionality of civil confinement statutes, the United States Supreme Court has ruled that Sex Offender Management and Treatment Act such confinement is lawful if a sex offender is “mentally In its past session, the New York State Legislature enacted abnormal” and dangerous.5 The Court later held that the a number of procedural changes to its criminal statutes. state must be able to prove that such offenders have seri- Clearly, the most dramatic change was the passage of the ous difficulty in controlling their behavior.6 Sex Offender Management and Treatment Act (SOMTA) New York’s legislation applies to all persons convicted to address the dangers posed by recidivist sex offenders.2 of felony sex offenses under Article 130 of the Penal Law. This legislation was a response to a recent New York In addition, it applies to the newly created crime of a Court of Appeals decision3 rejecting the state’s attempt “sexually motivated felony.” An individual is guilty of to use the involuntary civil commitment procedures in a sexually motivated felony when he or she, in whole or Article 9 of the Mental Hygiene Law to detain sex offend- part, commits one of 24 designated non-sex crimes for ers following incarceration periods. The new law affords the purpose of sexual gratification.7 Thus, if a defendant sex offenders procedural safeguards that the Court found commits the crime of Arson in the First Degree and the lacking in the prior commitment process. arson is sexually motivated, the defendant has commit- The legislation creates a new Article 10 of the Mental ted a sexually motivated felony and is subject to the civil Hygiene Law, which is premised on a finding that certain commitment law. Only defendants serving state prison sex offenders have mental abnormalities predisposing sentences are subject to the law. Thus, defendants sen- them to engage in repeated sex offenses.4 To address this tenced to local jail terms or probation are not vulnerable.8 problem, the legislation provides either continued cus- The law also applies to all defendants serving state prison todial detention or strict post-release supervision under sentences who were sentenced prior to April 13, 2007,

NYSBA Journal | February 2008 | 35 for any felony sex offense under Article 130 of the Penal General to establish by clear and convincing evidence Law, or any designated non-sex crime that, by clear and that the respondent suffers from a mental abnormality.17 convincing evidence, was sexually motivated. That abnormality must be a condition or disorder that The new law provides numerous procedural steps affects the volitional capacity of the individual in a man- that must precede any finding that a sex offender should ner that predisposes him or her to commit a sex offense be civilly committed. First, at least four months prior – that is, one that results in serious difficulty controlling to the anticipated prison release of a sex offender, the such conduct. The verdict of the jury must be unani- Department of Corrections must notify the Office of mous.18 If the jury is unable to reach a unanimous verdict, Mental Health and the Attorney General.9 A committee of the court must schedule a second trial within 60 days.19 professional personnel will preliminarily review the file If a second jury is unable to reach a unanimous verdict, to determine if the offender should be referred to a “case the court must dismiss the petition. If a unanimous jury review team” for further evaluation. The statute is silent or a judge finds that the respondent suffers from such an on what factors the committee should use in determining abnormality, then it is the court’s ultimate responsibility to that further evaluation is necessary. Although an inmate determine the respondent’s fate: confinement or intensive may have a scheduled release date from prison, once the supervision.20 case is subject to review for possible civil management After submitting additional evidence, the court must the inmate’s release can be postponed if the Attorney determine by clear and convincing evidence whether General files a securing petition with the court. the respondent has a mental abnormality involving If the committee refers the case for further review, the such strong predisposition to commit sex offenses and offender (now known as the respondent) is notified and an inability to control the behavior. Upon making such the matter is sent to a case review committee consisting of a finding, the respondent must be confined to a secure 15 members who are appointed by the Commissioner of treatment facility. If the court does not so find, it must the Office of Mental Hygiene.10 Any three of these mem- order the respondent to submit to strict and intensive bers may sit as a team to review a particular case. If the supervision by the Division of Parole. This supervision case review team determines that the respondent is a sex may include electronic monitoring, polygraph testing offender requiring civil management, it must notify the and residence restrictions. A respondent may appeal from respondent and the Attorney General. The notification either decision by the court. must be made within 45 days of the notice of the offend- It should be noted that both the period of confinement er’s anticipated release.11 It must be accompanied by a and the period of supervision are indefinite and may, written report from a psychiatric examiner that includes theoretically, last for the remainder of the sex offender’s a finding concerning whether the respondent has a “men- life. Civilly committed sex offenders have an ongoing tal abnormality,” which is defined in the statute.12 If the right to court-appointed counsel and can challenge their case review team recommends that the Attorney General continued confinement once a year.21 Offenders under file a civil management petition, it is in the Attorney strict supervision may move for termination of supervi- General’s discretion whether to do so. If a petition is filed sion or modification of conditions once every two years. it must be done within 30 days13 in the Supreme Court If an offender violates a condition of strict supervision, or County Court in the county where the respondent is the Attorney General may file a petition for confinement incarcerated.14 If the case review team determines that or modification of the terms of supervision. the respondent does not require civil management, then no petition will need to be filed. Procedural Changes Should a petition be filed by the Attorney General, the The Legislature enacted a number of other procedural respondent is entitled to court-appointed counsel. No bail changes affecting criminal law. A new law liberalizes the is permitted during civil management petition proceed- ability of a judge to determine that a child under the age ings. Within 30 days from filing a petition, the court must of 14 is a “vulnerable witness,” thus allowing the child to conduct a probable cause hearing. If there is probable testify by two-way, closed-circuit television.22 This provi- cause to believe that the respondent requires civil man- sion was originally enacted to provide child witnesses agement a trial is ordered.15 If probable cause is not estab- with an alternative to in-court testimony when that expe- lished, then the petition is dismissed and the respondent rience would be mentally or emotionally harmful to the is released. The trial must be conducted within 60 days of child. The amendment no longer requires a prosecutor a probable cause determination.16 to demonstrate “extraordinary circumstances” in order The offender may choose a trial by a jury of 12 jurors to utilize this procedure and only requires a prosecutor or a bench trial, and may ask to remove the trial to a to establish that the child would suffer “serious” harm, county in which he or she was sentenced. The court, how- rather than severe mental or emotional harm. ever, can deny the application, upon application of the Two new procedural changes will affect defen- Attorney General. At trial, the burden is on the Attorney dants who are on probation. First, rules for transferring

36 | February 2008 | NYSBA Journal Probation from one jurisdiction to another have been increases the penalties of Vehicular Assault by the pres- tightened.23 When a probationer resides in another juris- ence of similar aggravating factors. diction within the state, the sentencing court will now be required to transfer the supervision of the probationer Anti-Trafficking Laws to the Probation Department in the other jurisdiction. In Another new crime addresses sex and labor traffick- addition, a sentencing court can no longer retain jurisdic- ing. New York now joins 29 other states and the federal tion over the probationer for purposes of re-sentencing government in attempting to combat human trafficking. in the event of a violation of probation. Second, a pilot The United States Department of State has estimated that program has been authorized in four counties outside 14,500 to 17,500 people a year are brought into the United of New York City in which Probation authorities would States and then used for forced labor, involuntary domes- have the legal authority to issue temporary detainer war- tic servitude or sexual exploitation. Trafficking also origi-

New York’s new anti-trafﬁ cking law is one of the strongest such measures in the country. rants for high-risk probationers who have been convicted nates domestically, and the Office of Children and Family of sex offenses or family offenses.24 This would allow Services recently estimated that over 2,500 children in Probation Officers to bring a probationer to jail for tem- New York State are exploited for purposes of commercial porary detention even when a court is not in session. The sexual activity each year. Although federal laws punish pilot program is scheduled to sunset on March 31, 2010. human trafficking, they are usually invoked only against the largest trafficking rings rather than smaller operations Drunk Driving Laws such as sweatshops and brothels. In the past session, the Legislature created several new New York’s new law is one of the strongest anti- crimes effectively addressing serious and continuing trafficking measures in the country. It addresses the social problems. In an effort to toughen the drunk driving problem in three significant ways. First, it creates new laws, the Legislature created two new crimes: Aggravated crimes specifically targeting methods used by traffickers Vehicular Homicide and Aggravated Vehicular Assault.25 to exploit their victims. Second, it provides delivery of These crimes were created in response to the particu- social services to trafficking victims who are currently larly grisly death of a seven-year-old girl who was killed ineligible to receive such services. Finally, it creates a task while returning from her aunt’s wedding in Long Island. force to improve training to help prosecutors and police Interestingly, there is currently no crime of “Vehicular recognize trafficking situations. Homicide” (although there is a crime of Vehicular The legislation creates two new crimes: Sex Trafficking, Manslaughter), and thus it might be a misnomer to create a Class B felony, and Labor Trafficking, a Class D felony.26 a crime that appears to increase the penalties of a non- A person is guilty of Sex Trafficking when he or she existent crime. It seems the Legislature used the word intentionally advances or profits from prostitution by “homicide” in the title of the crime to stress the serious- using any of five methods to compel or induce a victim to ness with which it treats this important subject. engage in prostitution. These methods include providing In any event, the new crime of Aggravated Vehicular the victim with certain drugs; using materially false or Homicide is a Class B felony and is punishable by up misleading statements; withholding or destroying docu- to 25 years in prison. A person is guilty of Aggravated ments, including passports or immigration papers; or Vehicular Homicide when he or she engages in reckless requiring that prostitution be performed to repay a real driving under the Vehicle and Traffic Law, commits the or purported debt. In addition, the crime is committed if crime of Vehicular Manslaughter in the Second Degree the trafficker coerces the victim by threatening physical and one of six aggravating factors is present. These fac- injury or death; deportation or unlawful imprisonment; tors include the following: a blood-alcohol level of .18% the exposure of secrets; or a variety of other possible or more at the time the car is operated; the defendant harmful acts. The new crime of Labor Trafficking targets causes the death of more than one person; the defendant the language of sex trafficking and prevents an individual causes the death of one person and serious physical from forcing a victim into labor servitude. injury to another person; the defendant’s license is sus- Other changes have been made to the Penal Law and pended pursuant to various drunk driving laws; or the Criminal Procedure Law addressing sex and labor traf- defendant has previously been convicted of intoxicated ficking. The crime of Promoting Prostitution in the Third or impaired driving within the prior 10 years. The new Degree has been amended to preclude “prostitution tour- crime of Aggravated Vehicular Assault (Class C felony) ism,” in which a person in New York knowingly sells

NYSBA Journal | February 2008 | 37 travel-related services for the purposes of prostitution penalties for existing crimes. For example, the crime of services in another jurisdiction.27 International sex traf- Disseminating Indecent Material to Minors36 has been ficking is an enormous problem and each year thousands expanded to include the communication of indecent of young women are trafficked across international bor- material by words, as well as by graphic or visual images. ders for the purpose of commercial sexual exploitation. However, the amendment was unnecessary because the In addition, the new legislation provides that a traffick- Court of Appeals recently interpreted the prior statute ing victim shall not be deemed to be an accomplice of as including the use of words.37 The crime of Unlawful the trafficker.28 This provision relieves prosecutors of the Surveillance has been expanded to include the use of a evidentiary burden of corroborating the victim’s testi- cellular phone to take photographs.38 The Legislature also mony in a criminal prosecution. The new law also autho- addressed the problem of cemetery desecration. It expand- rizes wiretapping a trafficker’s telephone29 and adds Sex ed the crime of Cemetery Desecration by making it a crime Trafficking and Labor Trafficking to the list of felonies to steal property from a burial place in addition to dam- designated as criminal acts for purposes of prosecuting aging property.39 A new crime of Aggravated Cemetery Enterprise Corruption.30 Finally, Patronizing a Prostitute Desecration was created.40 A person is guilty of this crime, has been elevated from a Class B misdemeanor to a Class a Class E felony, if he or she removes a body part or any A misdemeanor.31 object from a casket or crypt. This crime will address a rash A second component of the anti-trafficking legislation of thefts in cemeteries upstate, in which individuals have provides social services for trafficking victims.32 These removed cemetery markers, statues, uniforms and Civil services may include emergency temporary housing, War relics from the graves of war veterans. health care, mental health counseling, drug addiction The recent legislative session focused its attention screening and treatment, language and translation ser- on a growing problem of unlawful sexual interaction vices, job training and placement assistance. The Office between inmates and employees at correctional facilities. of Temporary and Disability Assistance (OTDA) may also Accordingly, the Penal Law was amended, expanding the coordinate with the federal government to help victims definition of “employee” to broaden the scope of indi- obtain special visas to remain in this country to testify viduals who can be prosecuted. Previously, only those against traffickers. who worked at an institution could be prosecuted. Under Under the third component of the legislation, the the amendment, any person who enters the facility as an Interagency Task Force on Human Trafficking is cre- employee of a government agency or as a volunteer is ated and will be co-chaired by the Commissioners of the prohibited from engaging in any sexual activity with an Department of Criminal Services and OTDA.33 The task inmate.41 This will include employees of the Department force is responsible for collecting data on the extent of of Education, employees of the Department of Health and trafficking in New York, establishing training programs Mental Hygiene, contractors, maintenance crews, medi- for law enforcement personnel and evaluating the state’s cal staff and food service workers. progress in preventing and prosecuting trafficking. The Finally, the Legislature has expanded the enterprise Task Force must report to the Governor and Legislature corruption statute and money laundering statutes to by November 1, 2008, and the Task Force’s term expires add Trademark Counterfeiting to the list of crimes that on September 1, 2011. may form the basis for prosecution.42 While it has been recognized for some time that the production and sale Service Animals of counterfeit goods is a growing problem, the fact that The Legislature also enacted new offenses relating to ser- those involved in street-level distribution of these goods vice animals. A recent survey indicated that 89% of disabled are also known to engage in violent criminal activity individuals who used service animals had experienced has been overlooked. By amending the Penal Law, the some type of harassment, interference or attack by individ- Legislature has given law enforcement the tools needed uals or uncontrolled animals. A new crime, Interference, to target the larger criminal networks engaged in fraud Harassment or Intimidation of a Service Animal, is a Class and violence. B misdemeanor and an individual is guilty of this offense when he or she makes it impractical or dangerous for a ser- Crime Victims Legislation vice animal to perform its responsibilities.34 One is guilty Each year the Legislature enacts measures addressing of Harming a Service Animal in the Second Degree, a Class concerns of crime victims and this year was no exception. A misdemeanor, when a person causes physical injury to With respect to domestic violence cases, one amend- or the death of a service animal.35 ment expands a judge’s ability to revoke an individual’s firearm license when the individual has previously vio- Expanding Existing Crimes lated an Order of Protection by causing physical injury In the past session, the Legislature enacted numerous to another.43 In addition, a new law allows victims of measures that will expand both the definition of and the domestic violence to move out of their residence in

38 | February 2008 | NYSBA Journal order to ensure their safety without breaking a lease criminal convictions. Two new laws give added protec- agreement.44 The victim must establish that, if he or she tion to applicants for jobs and current employees with a remains in the premises, there is a substantial risk of criminal record. Under one law, employers can no lon- physical or emotional harm to the victim or the victim’s ger ask prospective employees about prior non-criminal child and that the landlord has refused to permit a termi- convictions (violations) or youthful offender adjudica- nation of the lease. tions.49 Under a second new law, employers cannot dis- Victims of certain sex crimes have received increased criminate against current employees with convictions benefits under a new law authorizing a court to issue a predating their employment and where the convictions pre-trial order compelling a defendant to undergo HIV are unrelated to the job and do not constitute a threat testing.45 Previously, a court could only issue this type to safety.50 Previously, such protection had only been of order after a defendant had been convicted. Under the afforded to applicants for employment but not current new law, a victim can request a pre-trial order if the sex employees. offense includes sexual intercourse, or oral or anal sexual Another bill will greatly assist the re-entry of indi- conduct. The victim must submit a written application viduals who leave prison. Previously, individuals who within six months of the date of the crime and file it prior entered local or state prisons had their Medicaid ben- to, or within, 48 hours of the filing of an Indictment or efits terminated and they were required to reapply for Superior Court Information. The results of the testing these benefits upon their release. Frequently, there was cannot be disclosed to the court and can only be given to a significant time period before the reinstatement of the victim or, upon request, to the defendant. Any infor- benefits and individuals were without medical care, mation obtained during a hearing on the application for drug treatment and mental health services. A new law an order cannot be used in a civil or criminal proceeding. mandates that Medicaid benefits be suspended, but not Interestingly, had the Legislature not enacted this bill, terminated, upon incarceration and that the benefits be New York State would have lost federal funds for fail- immediately reinstated upon release.51 Finally, one new ing to comply with the provisions of a statute known as law actually reduces privileges to ex-offenders. Persons Federal Grants to Encourage Arrest Policies. convicted of violent felony offenses or Class A-1 felonies Victims will also benefit from a new law that authoriz- can no longer obtain a firearm license even if they receive es a court to issue a Temporary Order of Protection when a Certificate of Relief from Disabilities or a Certificate of a defendant is remanded.46 This addresses situations in Good Conduct.52 which defendants violate Temporary Orders of Protection In the area of sex offender registration, the Legislature while in custody by making telephone calls or sending responded to reports from numerous police agencies that harassing or threatening mail to a victim. In addition, sex offenders throughout the state are failing to register under an amendment to the Penal Law, municipalities or update their registrations. As a result, the penalty for and other providers of emergency response services can failing to register has been increased to a Class E felony now seek restitution for their costs in responding to a for the first offense, and a Class D felony upon the second false report of a bomb or hazardous substance.47 offense.53 Finally, victims of identity theft will benefit from a new law requiring the law enforcement agency having jurisdiction over the identity theft offense to make a police report of the matter, provide the victim with a copy of the report at no charge and begin an investigation.48 Police reports are the first step in helping identity theft victims clear their names and recover from identity theft. Victims need these reports to document the crime and to notify credit bureaus that, upon request, must block the reporting of inaccurate information about the victim. When a copy of a police report is provided to them, the three largest nationwide credit reporting companies (Experian, Equifax and TransUnion) must place an extended fraud alert in the victim’s credit file for seven years. Additionally, the alert entitles the victim to free credit reports.

Collateral Consequences of Criminal Convictions This year, the Legislature addressed an area that it had not focused on previously: collateral consequences of

NYSBA Journal | February 2008 | 39 The Legislature enacted a new law, the Freedom to Report a U.S. Airways flight awaiting takeoff after a number of passengers and crew onboard reported to authori- Terrorism Act, that will protect ties what they believed to be suspicious behavior. After individuals who report crimes or receiving these reports, airport security and federal air marshals agreed that the actions were suspicious enough suspicious behavior. to warrant removing the imams from the plane. The men were detained and ultimately released, but later sued U.S. Airways. They are seeking the names of the passengers Vehicle and Traffic Law who reported their activities. A number of new laws were enacted that will affect In response to that incident, the Legislature enacted motorists violating the Vehicle and Traffic Law. For the the Freedom to Report Terrorism Act.59 Pursuant to this past 20 years there has been a pilot program in seven statute, a person who acts in good faith and reports the counties54 in which an ignition interlock device has been allegedly suspicious behavior of another person shall utilized to combat drunk driving. Once installed, this be immune from civil and criminal liability. The person device permits a car to be started only after an alcohol making the report must have a reasonable belief that such analysis of the operator’s breath. If the analysis indicates suspicious behavior constituted or is indicative of an act a blood-alcohol level that is above the legal limit, then of terrorism. It is interesting to note that the statute also the car will not start. A new law extends the program protects an individual who reports allegedly suspicious state-wide, and courts will now be able to require the use behavior that is indicative of a crime as long as the report of an ignition interlock device as a condition of proba- is based upon a reasonable belief. It remains to be seen tion.55 The law also permits the device to be installed on how this statute will interact with civil actions for false any car the probationer owns or operates. Individuals arrest or malicious prosecutions. who are issued conditional driver’s licenses and who are on Probation will be issued licenses indicating that Minor or Technical New Laws the car must contain such an ignition device. Finally, a A number of minor or technical new laws were enacted in new law increases the penalties for snowmobiling while the past session. Suffolk County became the 23rd county intoxicated when the offender is on the private property in which defendants can appear for non-substantive of others.56 proceeding by video conferencing in lieu of a personal appearance.60 The crime of Failure to Disclose the Origin Inmates of a Recording in the First Degree is now a “designated Several new laws affect prisoners. Inmates serving deter- offense” for which an eavesdropping or video surveil- minate sentences for drug offenses are now eligible for lance warrant may be issued.61 Criminal Mischief is early parole release for the purpose of deportation.57 This now a crime for which criminal courts and Family Court change affects hundreds of individuals who were sen- may exercise concurrent jurisdiction when committed tenced to determinate sentences pursuant to the 2004 and between members of the same family or household.62 The 2005 Drug Reform Acts. current ticket scalping law has been repealed and there A second bill, not yet signed by the Governor, will are no longer restrictions on the maximum resale price of affect approximately 8,000 mentally ill inmates currently tickets.63 However, it is a Class A misdemeanor for “ticket within the New York State prison system.58 Frequently, speculators” to sell tickets and the statute still precludes mentally ill inmates are disciplined by being placed in the resale of tickets within 1,500 feet of sites with seating solitary confinement. Studies have shown that such treat- capacities of at least 5,000 individuals. Finally, a technical ment causes inmates to engage in acts of self-mutilation amendment to the crime of Non Support of a Child pro- and to commit suicide at a rate three times higher than vides that a prior conviction for either the second or first inmates in the general prison population. The new law degree offense within the preceding five years elevates requires mental health clinicians to evaluate individuals the crime to a Class E felony.64 ■ who exhibit signs of mental illness. If the inmate meets one of numerous criteria, the inmate must be assigned to a 1. A discussion of several new laws can also be found in the Criminal Law Column, N.Y.L.J., Oct. 11, 2007. residential mental health treatment program jointly oper- 2. N.Y. Mental Hygiene Law art. 10, §§ 10.01–10.17; ch. 7, eff. 4/12/07 ated by the Office of Mental Health and the Department (MHL). of Corrections. 3. State of N.Y. ex rel. Harkavy v. Consilvio, 7 N.Y.3d 607, 825 N.Y.S.2d 702 (2006) (“Harkavy I”). In a later case, State of N.Y. ex rel. Harkavy v. Consilvio, 8 Freedom to Report Terrorism Act N.Y.3d 645 (2007) (“Harkavy II”), the Court held that a second group of sex offenders were also improperly committed under Article 9 of the Mental The Legislature enacted a new law that will protect Hygiene Law. While the Court noted that the new legislation addressed the individuals who report crimes or suspicious behavior. In procedural flaws identified in Harkavy I, it did not rule on the propriety of the November 2006, six Muslim imams were removed from standards enunciated in SOMTA.

40 | February 2008 | NYSBA Journal 4. MHL § 10.01; ch. 7, eff. 4/13/07. 30. Penal Law § 460.10(1)(a); ch. 74, eff. 11/1/07. 5. Kansas v. Hendricks, 521 U.S. 346 (1997). 31. Penal Law § 230.04; ch. 74, eff. 11/1/07. 6. Kansas v. Crane, 534 U.S. 407 (2002). The new legislation tracks that lan- 32. N.Y. Social Services Law art. 10-D; ch. 74, eff. 11/1/07 (“Soc. Serv. Law”). guage. See MHL § 10.03(i). 33. Soc. Serv. Law § 483-ee; ch. 74, eff. 11/1/07. 7. See MHL § 10.03(f) for a list of specified offenses. A “sexually motivated” 34. Penal Law § 242.05; ch. 582, eff. 11/1/07. felony does not subject the defendant to increased incarceration; however, as noted, it subjects the defendant to the civil commitment law. 35. Penal Law § 242.10; ch. 582, eff. 11/1/07. 8. MHL § 10.03(a), (g); ch. 7, eff. 4/13/07. 36. Penal Law 235.25; ch. 8, eff. 3/19/07. 9. MHL § 10.05(b); ch. 7, eff. 4/13/07. 37. People v. Kozlow, 8 N.Y.3d 554, 838 N.Y.S.2d 800 (2007). 10. MHL § 10.05(e); ch. 7, eff. 4/13/07. 38. Penal Law § 250.40; ch. 291, eff. 11/1/07. 11. MHL § 10.05(g); ch. 7, eff. 4/13/07. 39. Penal Law §§ 145.22, 145.23; ch. 353, eff. 7/18/07. 12. MHL § 10.03(i); ch. 7, eff. 4/13/07. A court has recently ruled that a sex 40. Penal Law §§ 145.26, 145.27; ch. 376, eff. 11/11/07. offender has no right to counsel at the initial psychiatric interview that is 41. Penal Law § 130.05(3)(e), (f); ch. 335, eff. 11/1/07. conducted to aid the review team in determining whether the offender is in 42. Penal Law §§ 460(1)(a), 700.05(8)(b); ch. 568, eff. 11/1/07. need of civil management. State of N.Y. v. Davis, 17 Misc. 3d 433, 842 N.Y.S.2d 43. CPL § 530.14; ch. 198, eff. 8/3/07. 705 (Sup. Ct., Bronx Co. 2007). The issue of when the right to counsel attaches is one of the issues in Mental Hygiene Legal Service v. Spitzer, a challenge to the 44. CPL § 530.12(g); N.Y. Real Property Law § 227-c; ch. 571, eff. 11/1/07. constitutionality of the statute, pending in the Southern District. 45. CPL § 210.16; ch. 571, eff. 11/1/07. 13. MHL § 10.06(a); ch. 7, eff. 4/13/07. 46. CPL §§ 530.12, 530.13, ch. 137, eff. 7/3/07. 14. MHL § 10.06(a), (b); ch. 7, eff. 4/13/07. 47. Penal Law § 60.27(13); ch. 519, eff. 8/15/07. 15. MHL § 10.06(g); ch. 7, eff. 4/13/07. 48. N.Y. Executive Law § 646; ch. 346, eff. 7/18/07 (“Exec. Law”). 16. MHL § 10.07(a); ch. 7, eff. 4/13/07. 49. Exec. Law § 296(16); ch. 639, eff. 11/1/07. 17. MHL § 10.07(d); ch. 7, eff. 4/13/07. 50. N.Y. Correction Law § 751; ch. 284, eff. 7/19/07 (“Corr. Law”). 18. In August, a jury in Washington County heard the first civil confinement 51. Soc. Serv. Law § 366(1-a) ch. 355, eff. 4/1/08. trial under the new law and found that the offender did not suffer from a 52. Corr. Law § 701(2); ch. 235, eff. 10/16/07. mental abnormality requiring civil confinement. He was released from custody. Later that month, an offender finishing a 16-year prison sentence in Greene 53. Corr. Law § 168-t; ch. 373, eff. 8/17/07. County became the first offender to be civilly confined, after waiving a prob- 54. Albany, Erie, Nassau, Onondaga, Monroe, Westchester and Suffolk. able cause hearing and trial and consenting to indefinite civil confinement. 55. Penal Law § 65.10(k-1); ch. 669, eff. 10/27/07. 19. MHL § 10.07(e); ch. 7, eff. 4/13/07. 56. N.Y. Parks, Recreation & Historic Preservation Law § 25.24; ch. 311, eff. 20. MHL § 10.07(f); ch. 7, eff. 4/13/07. 11/1/07. 21. MHL § 10.09(a); ch. 7, eff. 4/13/07. 57. Exec. Law § 259-i (2)(d); ch. 239, eff. 7/18/07. 22. N.Y. Criminal Procedure Law § 65.10; ch. 548, eff. 8/15/07 (CPL). 58. Corr. Law § 137(6); S. 333-B approved by both houses and sent to the 23. CPL § 410.80; ch. 191, eff. 9/1/07. Governor for signature; eff. 18 months after it is signed into law. 24. CPL § 410.92; ch. 377, eff. 7/18/07 59. Penal Law § 490.01; ch. 651, eff. 8/28/07. 25. Penal Law §§ 125.14, 120.04-a; ch. 345, eff. 11/1/07. 60. CPL § 182.20; ch. 29, eff. 5/14/07. 26. Penal Law §§ 230.34, 230.36, 135.35; ch. 74, eff. 11/1/07. 61. CPL § 700.05(8)(b); ch. 570, eff. 11/1/07. 27. Penal Law § 230.25(1); ch. 74, eff. 11/1/07. 62. CPL § 530.11(1); Family Court Act § 812 (1); ch. 541, eff. 11/13/07. 28. Penal Law § 230.36; ch. 74, eff. 11/1/07 63. N.Y. Arts & Cultural Affairs Law art. 25; ch. 61, eff. 5/31/07. 29. CPL § 700.05(8)(b); ch. 74, eff. 11/1/07. 64. Penal Law § 260.06; ch. 310, eff. 11/1/07. 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 | February 2008 | 41 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, 2007; Travel Law, Law Journal Press, 2007; Article 9 of 3 Weinstein, Korn & Miller, New York Civil Practice CPLR, Lexis-Nexis (MB), 2007 and over 250 articles on consumer law, class actions, travel law and tax certiorari. Justice Dickerson received his Bachelor of Arts from Colgate University and his law degree from Cornell University.

New York State Consumer Protection Law and Class Actions in 2007 – Part I

By Thomas A. Dickerson

he year 2007 saw significant changes in consumer middle term price changes in fixed price contracts;9 and law.1 Part I of this article will discuss recent devel- improper debt collection methods.10 Topments in several consumer law areas and Part II shall discuss recent developments in New York State Real Property Disclosure Forms consumer class actions. Notwithstanding New York’s adherence to the doctrine Many cases in 2007 involved deceptive and mislead- of caveat emptor in the sale of real estate, “impos[ing] ing business practices,2 Property Condition Disclosure no liability on a seller for failing to disclose information Statements, New Car Lemon Law arbitration, home regarding the premises when the parties deal at arm’s inspector licensing, home improvement contractor licens- length, unless there is some conduct on the part of the ing, new home housing merchant implied warranty, seller which constitutes active concealment,”11 there have electronic funds transfers, identity theft, debt collection been two significant developments in protecting real practices, debt collector licensing and price gouging. estate purchasers. First, as stated by the courts in Ayres In addition, there has been a dramatic increase in v. Pressman12 and Calvente v. Levy,13 any misrepresenta- the use of mandatory arbitration, class action waivers,3 tions in the Property Condition Disclosure Statement, forum selection4 and choice-of-law clauses in consumer mandated by Real Property Law § 462, provide a sepa- contracts. In particular, this included agreements entered rate cause of action for defrauded home buyers, which into over the Internet5 and a much-needed effort by some entitles a plaintiff “to recover his actual damages aris- courts to analyze entry into consumer agreements and ing out of the material misrepresentations set forth on the appropriate standards of proof regarding the dispo- the disclosure form notwithstanding the ‘as is’ clause sition of disputes arising from the same, which include contained in the contract of sale.”14 Second, the court summary judgment motions made by credit card issu- in Simone v. Homecheck Real Estate Services, Inc., has set ers;6 confirmation of arbitration awards;7 deceptive lend- forth that “when a seller makes a false representation ing practices in home equity loan mortgage closings;8 in a Disclosure Statement, such a representation may

42 | February 2008 | NYSBA Journal be proof of active concealment . . . the alleged false rep- may be at a disadvantage where the chosen forum resentations by the sellers in the Disclosure Statement for arbitration specializes in the resolution of disputes support a cause of action alleging fraudulent misrepre- between members of the construction industry.23 sentation in that such false representations may be proof of active concealment.”15 The petitioners in Baronoff v. Kean Development Co., Inc.,24 had entered into construction contracts with the Educational Services respondent to manage and direct renovations of two In Drew v. Sylvan Learning Center Corp.,16 the parents properties. The agreement contained an arbitration clause enrolled their school-age children in an educational ser- that the respondent sought to enforce after the petitioners vices17 program promising “The Sylvan Guarantee. Your terminated the agreement by refusing to pay the balance child will improve at least one full grade level equivalent due. The court, in “a case of first impression,” found that in reading or math within 36 hours of instruction or we’ll GBL § 399-c barred the mandatory arbitration clause and, provide 12 additional hours of instruction at no further further, that the petitioners’ claims were not preempted cost to you.” After securing an $11,000 loan to pay for the by the Federal Arbitration Act. “While the [FAA] may in defendant’s services for eight months of thrice weekly, some cases preempt a state statute such as section 399-c, it one-hour tutoring sessions, the parents were shocked may only do so in transactions ‘affecting commerce.’”25 that “based on the Board of Education’s standards, it was concluded that neither child met the grade level New Car Lemon Law requirements”; and the plaintiffs’ daughter was retained In DaimlerChrysler Corp. v. Spitzer, the Court of Appeals, in second grade.18 noting that “the Legislature enacted the New Car Lemon The court found that (1) fraudulent misrepresen- Law [GBL § 198-a] ‘to provide New York consumers tation occurred, noting that no evidence was intro- greater protection than that afforded by automobile man- duced “regarding Sylvan’s standards, whether those ufacturers’ express warranties,” found that “we do not standards were aligned with the New York City Board of read the repair presumption as requiring a consumer to Education’s standards, or whether Sylvan had any suc- establish that the vehicle defect continued to exist until cess with students who attended New York City public the trial or hearing date . . . once a consumer has met the schools”; (2) a violation of N.Y. General Business Law four-repair threshold the presumption arises regardless of § 349 (GBL) occurred, citing Brown v. Hambric,19 Cambridge whether the manufacturer later remedies the problem.”26 v. Telemarketing Concepts20 and People v. McNair,21 in that the “defendant deceived consumers . . . by guarantee- Home Inspections ing that its services would improve . . . children’s grade In Carney v. Coull Building Inspections, Inc.,27 the home levels and thereby implying that its standards were buyer alleged that the defendant, a licensed home aligned with the Board of Education’s standards”; and inspector, “failed to disclose a defective heating system” (3) unconscionable actions occurred (“There is absolutely that was subsequently replaced with a new “heating no reason why a consumer interested in improving her unit at a cost of $3,400.00,” although the “defendant children’s academic status should not be made aware, pointed out in the report that the hot water heater was prior to engaging Sylvan’s services, that these services ‘very old’” and “has run past its life expectancy.” In cannot, with any reasonable probability, guarantee aca- finding for the plaintiff the court noted that, although demic success. Hiding its written disclaimer within the the defendant’s damages would be limited to the $395 progress report and diagnostic assessment is unaccept- fee paid28 and no private right of action existed under able.”) the Home Improvement Licensing Statute, Real Property Law § 12-B, the plaintiff did have a claim under GBL Mandatory Arbitration Clauses § 349 because of the defendant’s “failure . . . to comply In Ragucci v. Professional Construction Services,22 the court with Real Property Law § 12-B by not including impor- enforced a prohibition in GBL § 399-c against using man- tant information on the contract such as the “inspector’s datory arbitration clauses in certain consumer contracts licensing information.’”29 and applied it to a contract for architectural services. Repair Shop Labor Charges A residential property owner seeking the services of an 30 architect for the construction or renovation of a house Tate v. Fuccillo Ford, Inc. was a case involving the instal- is not on equal footing in bargaining over contractual lation of a re-manufactured transmission without the terms such as the manner in which a potential future consumer’s consent. In Tate, the court found that the dispute should be resolved. Indeed, the plaintiffs in “defendant’s policy of fixing its times to do a given job this case played no role in drafting the subject form . . . based on a national time standard rather than being agreement. Moreover, a residential property owner based upon the actual time it took to do the task without so advising each customer of their method of assessing

NYSBA Journal | February 2008 | 43 labor costs is ‘a deceptive act or practice directed towards sixth mailings unambiguously state that recipients of the consumers and that such . . . practice resulted in actual [post] cards ‘can be helped Today’ with their ‘Unbearable injury to a plaintiff.’” Monthly Payment Plan(s)’ and that defendant can stop wage garnishments, bank seizures and assessment of Credit Cards interest and penalties. These two mailings . . . make In People v. Applied Card Systems, Inc.,31 a case involving explicit promises which . . . cannot be described as ‘puff- misrepresentations concerning availability of certain pre- ery’ and could . . . be found to be purposely misleading approved credit limits, the court found that the “petition- and deceptive.”37 er successfully established his claims pursuant to (GBL §§ 349 and 350)” and modified the damages awarded. Home Contractor Licensing Homeowners often hire home improvement contractors Electricity Rates to repair or improve their homes or property. Home Emilio v. Robison Oil Corp.32 involved a contract to provide improvement contractors must, at least, be licensed by electricity. There, the court found that “the act of unilater- the Department of Consumer Affairs of New York City, ally changing the price in the middle of the term of a fixed Westchester County, Suffolk County, Rockland County, price contract has been found to constitute a deceptive Putnam County and Nassau County to perform services practice . . . therefore, the plaintiff should also be allowed in those counties.38 In Flax v. Hommel,39 the court held that to assert his claim under (GBL § 349) based on the allega- “[s]ince Hommel was not individually licensed pursuant tion that the defendant unilaterally increased the price in to Nassau County Administrative Code § 21-11.2 at the the middle of the renewal term of the contract.” time the contract was entered and the work performed, the alleged contract . . . was unenforceable.” Mortgage Closings In Bonior v. Citibank, N.A.,33 a case involving a home New House Warranty equity mortgage closing, the court found that the lenders GBL § 777 provides, among other things, for a statutory had violated GBL § 349 by (1) failing to advise the bor- housing merchant warranty for the sale of a new house rowers of a right to counsel, (2) the use of contradictory (but not a custom house).40 In Farrell v. Lane Residential, and ambiguous documents containing no prepayment Inc.,41 after a seven-day trial, the court found the devel- penalty clauses and charging an early closing fee, (3) fail- oper had violated GBL § 777-a regarding various defects, ing to disclose relationships with settlement agents and and awarded the cost to cure the defects ($35,952) as (4) document discrepancies. damages. Although the plaintiffs sought damages for the In Emilio, the court found that “the act of unilaterally changing the price in the middle of the term of a ﬁ xed price contract has been found to constitute a deceptive practice.”

Food Expiration Dates “stigma [that] has attached to the property,”42 the court In Food Parade, Inc. v. Office of Consumer Affairs,34 a major- denied the request for a failure to present “any compa- ity of the Court of Appeals stated that rable market data.” [m]any consumer goods bear expiration dates, as required by law. In the case before us, a supermarket Electronic Funds Transfers, Identity Theft displayed a number of products bearing expired dates. In Household Finance Realty Corp. v. Dunlap,43 a mortgage We must decide whether this is a deceptive trade foreclosure proceeding arising from the defendant’s practice within the meaning of the Nassau County failure to make timely payments, the court denied the Administrative Code [§ 21-10.2]. . . . We hold that plaintiff’s summary motion because it was undisputed offering such products for sale is not deceptive unless that “the funds were available in defendant’s account to the retailer alters or disguises the expiration dates. cover the preauthorized debit amount,” noting that the Without doubt, the Legislature may prohibit and pun- Electronic Funds Transfer Act (EFTA) ish the sale of certain outdated or stale products. We cannot, however, fit such sales or displays into the was enacted to “provide a basic framework establish- code’s “deceptive trade practice” proscription.35 ing the rights, liabilities and responsibilities of participants in electronic fund transfer systems.” Its purpose Tax Advice is to “assure that mortgages, insurance policies and In Mintz v. American Tax Relief,36 a case involving render- other important obligations are not declared in default ing of tax advice, the court held that “the second and due to late payment caused by a system breakdown.”

44 | February 2008 | NYSBA Journal As a consumer protection measure, section 1693j of * * * the EFTA suspends the consumer’s obligation to make In determining what types of conduct may be deceptive practices payment “[i]f a system malfunction prevents the effec- under state law, this Court has applied an objective standard which tuation of an electronic fund transfer initiated by [the] asks whether the “representation or omission [was] likely to mislead a reasonable consumer acting reasonably under the circum- consumer to another person and such other person has stances,” taking into account not only the impact on the “average 44 agreed to accept payment by such means.” customer” but also on “the vast multitude which the statutes were enacted to safeguard – including the ignorant, the unthinking and 45 In Kudelko v. Dalessio, the court declined to apply the credulous who, in making purchases, do not stop to analyze but GBL §§ 380-s and 380-l retroactively to an identity theft are governed by appearances and general impressions.” scheme, which provide a statutory cause of action provid- 3. See Dickerson, Class Actions: The Law of 50 States, Law Journal Press, 2007, ing damages (actual and punitive) for identity theft, but 4.03(5); Estreicher & Bennett, California Court Creates Class Arbitration Waiver Test, N.Y.L.J., Nov. 8, 2007, p. 4. did find that a claim for fraud was stated and the jury 4. See, e.g., Boss v. Am. Express Fin. Advisors, Inc., 6 N.Y.3d 242, 816 N.Y.S.2d could decide liability, if appropriate. 620 (2006) (Minnesota forum selection clause enforced citing Brooke Group v. JCH Syndicate 488, 87 N.Y.2d 530, 640 N.Y.S.2d 479 (1996) (“[f]orum selection Debt Collectors clauses are enforced because they provide certainty and predictability in the resolution of disputes”); Strujan v. AOL, 12 Misc. 3d 1160 (N.Y. Civ. Ct. 2006) 46 In Centurion Capital Corp. v. Druce, the plaintiff, a pur- (Virginia forum selection clause not enforced); Studebaker-Worthington Leasing chaser of credit card debt, was held to be a debt collector Corp. v. A-1 Quality Plumbing Corp., N.Y.L.J., Oct. 28, 2005, p. 21, col. 2 (Sup. Ct., as defined in Administrative Code of the City of New Nassau Co.) (“[T]he forum selection clause lacks specificity as it does not desig- nate a specific forum or choice of law for the determination of the controversies York § 20-489 and, because the plaintiff was not licensed, that may arise out of the contract. Therefore, enforcement of the clause would its claims against the defendant had to be dismissed. In be unreasonable and unjust as it is overreaching”). addition, the defendant’s counterclaim asserted that the 5. See Sayeedi v. Walser, 15 Misc. 3d 621, 835 N.Y.S.2d 840 (N.Y. Civ. Ct. 2007) plaintiff violated GBL § 349 by “bringing two actions for (no personal jurisdiction over Missouri resident arising from sale of automobile over e-Bay to New York resident); see also Dickerson, The Marketing of Travel the same claim,” but the court found both as being “suf- Services Over the Internet and the Impact Upon the Assertion of Personal Jurisdiction: ficient” to state a GBL § 349 cause of action. 2004, N.Y.S.B.A. Torts, Ins. & Compensation L. Section J., vol. 33, no. 2, Summer 2004, p. 28. Price Gouging 6. Citibank (S. Dakota), NA v. Martin, 11 Misc. 3d 219, 807 N.Y.S.2d 284 (N.Y. GBL § 396-r prohibits price gouging during emergency Civ. Ct. 2005). situations. In People v. My Service Center, Inc.,47 the court 7. MBNA Am. Bank, N.A. v. Nelson, 15 Misc. 3d 1148, 841 N.Y.S.2d 826 (N.Y. Civ. Ct. 2007); MBNA Am. Bank, NA v. Straub, 12 Misc. 3d 963, 815 N.Y.S.2d 450 addressed the charge that a “gas station [had inflated] (N.Y. Civ. Ct. 2006). the retail price of its gasoline” after the “abnormal market 8. Bonior v. Citibank, N.A., 14 Misc. 3d 771, 828 N.Y.S.2d 765 (N.Y. Civ. Ct. disruption” caused by Hurricane Katrina in the summer of 2006). 2005. “[T]his Court finds that respondent’s pricing patently 9. Emilio v. Robison Oil Corp., 28 A.D.3d 418, 813 N.Y.S.2d 465 (2d Dep’t 2006); violated GBL § 396-r . . . given such excessive increases and see People v. Wilco Energy Corp., 284 A.D.2d 469, 728 N.Y.S.2d 471 (2d Dep’t 2001). the fact that such increases did not bear any relation to the 10. People v. Applied Card Sys., Inc., 27 A.D.3d 104, 805 N.Y.S.2d 175 (3d Dep’t supplier’s costs. . . . Regardless of respondent’s desire to 2005). anticipate market fluctuations to remain competitive, notwithstanding the price at which it purchased that supply, [this] is precisely the manipulation and unfair advantage GBL § 396-r is designed to forestall.” ■

1. Many of these are discussed in Consumer Law: The Judge’s Guide to Federal and New York State Consumer Protection Statutes. See www.courts.state.ny.us/ courts/ad2/justice_dickerson.shtml and www.nycourts.gov/courts/9jd/ taxcertatd.shtml. For previous years, see, e.g., Dickerson, New York Consumers Enjoy Statutory Protections Under Both State and Federal Statutes, N.Y. St. B.J. (Sept. 2004), p. 10; Dickerson, Class Warfare: Aggregating and Prosecuting Consumer Claims as Class Actions – Part I, N.Y. St. B.J. (July/Aug. 2005), p. 18; Dickerson, Class Warfare: Aggregating and Prosecuting Consumer Claims as Class Actions – Part II, N.Y. St. B.J. (Oct. 2005), p. 36. 2. See dissenting opinion of Judge Graffeo in Food Parade, Inc. v. Office of Consumer Affairs, 7 N.Y.3d 568, 574–75, 825 N.Y.S.2d 667 (2006): This Court has broadly construed general consumer protection laws to effectuate their remedial purposes, applying the state deceptive practices law to a full spectrum of consumer-oriented conduct, from the sale of “vanishing premium” life insurance policies . . . to the provision of infertility services. . . . We have repeat- edly emphasized that [GBL § 349] and section 350, its companion “apply to virtually all economic activity, and their application has been correspondingly broad. . . . The reach of these statutes provide(s) needed authority to cope with the numerous, ever- changing types of false and deceptive business practices which plague consumers in our State.”

NYSBA Journal | February 2008 | 45 11. Simone v. Homecheck Real Estate Servs., Inc., 42 A.D.3d 518, 520, 840 N.Y.S.2d 31. 41 A.D.3d 4, 834 N.Y.S.2d 558 (3d Dep’t 2007) (holding that “solicitations 398 (2d Dep’t 2007). were misleading . . . because a reasonable consumer was led to believe that by 12. 14 Misc. 3d 145, 836 N.Y.S.2d 496 (N.Y.A.T. 2007). signing up for the program, he or she would be protected in case of an income loss due to the conditions described”). 13. 12 Misc. 3d 38, 816 N.Y.S.2d 828 (N.Y.A.T. 2006). 32. 28 A.D.3d 418, 813 N.Y.S.2d 465 (2d Dep’t 2006). 14. 14 Misc. 3d 145. 33. 14 Misc. 3d 771, 828 N.Y.S.2d 765 (N.Y. Civ. Ct. 2006) (finding “the most 15. 42 A.D.3d at 520; see McMullen v. Propester, 13 Misc. 3d 1232, 831 N.Y.S.2d serious is that the equity source agreement and the mortgage are to be inter- 354 (Sup. Ct., Yates Co. 2006). preted under the laws of different states, New York and California respec- 16. 16 Misc. 3d 836, 842 N.Y.S.2d 270 (N.Y. Civ. Ct. 2007). tively”). 17. See, e.g., Andre v. Pace Univ., 161 Misc. 2d 613, 618 N.Y.S.2d 975 (N.Y. City 34. 7 N.Y.3d 568, 825 N.Y.S.2d 667 (2006), aff’g 19 A.D.3d 593, 799 N.Y.S.2d 55 Ct. 1994), rev’d on other grounds 170 Misc. 2d 893, 655 N.Y.S.2d 777 (N.Y.A.T. (2d Dep’t 2005). 1996) (failing to give basic computer course for beginners); see also Cullen v. 35. Id. at 570. See also Stop & Shop Supermarket Cos, Inc. v. Office of Consumer Whitman Med. Corp., 197 F.R.D. 136 (E.D. Pa. 2000) (settlement of class action Affairs, 23 A.D.3d 565, 805 N.Y.S.2d 95 (2d Dep’t 2005) (“A supermarket’s involving education misrepresentations). mere display and sale of expired items is not a deceptive trade practice under 18. Drew, 16 Misc. 3d at 837. Nassau County Administrative Code § 21-10.2(b)(1)(d)”). 19. 168 Misc. 2d 502, 638 N.Y.S.2d 873 (N.Y. City Ct. 1995). 36. 16 Misc. 3d 517, 837 N.Y.S.2d 841 (Sup. Ct., N.Y. Co. 2007). 20. 171 Misc. 2d 796, 655 N.Y.S.2d 795 (N.Y. City Ct. 1997). 37. Id. at 523. 21. People v. McNair, 2005 WL 2780976 (Sup. Ct., N.Y. Co. Sept. 12, 2005) 38. CPLR 3015(e). (“deliberate and material misrepresentations to parents enrolling their children 39. 40 A.D.3d 809, 810, 835 N.Y.S.2d 735 (2d Dep’t 2007). in the Harlem Youth Enrichment Christian Academy . . . thereby entitling the parents to all fees paid (in the amount of $182,393.00); civil penalties pursuant 40. Sharpe v. Mann, 34 A.D.3d 959, 823 N.Y.S.2d 623 (3d Dep’t 2006) (“While to GBL 350-d of $500 for each deceptive act or $38,500.00 and costs of $2,000.00 the housing merchant implied warranty under [GBL § 777-a] is automatically pursuant to CPLR § 8303(a)(6)”). applicable to the sale of a new home, it does not apply to a contract for the construction of a ‘custom home,’ that is, a single family residence to be constructed 22. 25 A.D.3d 43, 803 N.Y.S.2d 139 (2d Dep’t 2005). on the purchaser’s own property”). 23. Id. at 50. 41. 13 Misc. 3d 1239, 831 N.Y.S.2d 353 (Sup. Ct., Broome Co. 2006). 24. 12 Misc. 3d 627, 818 N.Y.S.2d 421 (Sup. Ct., Nassau Co. 2006). 42. Putnam v. State of N.Y., 223 A.D.2d 872, 636 N.Y.S.2d 473 (2d Dep’t 1996). 25. Id. at 631. 43. 15 Misc. 3d 659, 834 N.Y.S.2d 438 (Sup. Ct., N.Y. Co. 2007). 26. 7 N.Y.3d 653, 657, 662, 827 N.Y.S.2d 88 (2006); see In re Gen. Motors Corp., 44. Id. at 664. 33 A.D.3d 1149, 1150, 824 N.Y.S.2d 180 (3d Dep’t 2006) (“Lemon Law does not require a consumer to prove that a defect exists at the time of an arbitration 45. 14 Misc. 3d 650, 829 N.Y.S.2d 839 (N.Y. Civ. Ct. 2006) (finding that “[i] hearing in order to recover under the statute”). dentity theft has become a prevalent and growing problem in our society with individuals having their credit ratings damaged or destroyed and causing 27. 2007 WL 2119740 (N.Y. Civ. Ct. 2007). untold financial burdens on these innocent victims. As stated above the New 28. See Ricciardi v. Frank, 163 Misc. 2d 337, 620 N.Y.S.2d 918 (N.Y. City Ct. York State Legislature, recognizing this special category of fraudulent conduct, 1994), modified, 170 Misc. 2d 777, 655 N.Y.S.2d 242 (N.Y.A.T. 1996) (holding civil gave individuals certain civil remedies when they suffered this harm”). engineer liable for failing to discover wet basement). 46. 14 Misc. 3d 564, 828 N.Y.S.2d 851 (N.Y. Civ. Ct. 2006). 29. Carney, 2007 WL 2119740. 47. 14 Misc. 3d 1217, 836 N.Y.S.2d 487 (Sup. Ct., Westchester Co. 2007). 30. 15 Misc. 3d 453, 831 N.Y.S.2d 304 (Watertown City Ct. 2007). From the NYSBA Bookstore Public Sector Labor and Employment Law NEW! Book Prices Third Edition 2007 • approximately 1,500 pp., Editors-in-Chief looseleaf • PN: 42057 Jerome Lefkowitz, Esq. Jean Doerr, Esq. Sharon Berlin, Esq. NYSBA Members $150 Public Employment Public Employment Lamb & Barnosky, LLP Non-Members $185 Relations Board Relations Board Melville, NY Albany, NY Buffalo, NY ** 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 This landmark text is the most authoritative reference on not include applicable sales tax. public sector labor and employment law in New York State. The soon-to-be-released third edition was written and edited by Get the Information Edge some of the leading experts in the field. These authors provide 1.800.582.2452 practical advice, illustrated by many case examples. Completely updated, the third edition has a greatly expanded index and www.nysba.org/pubs table of authorities. Mention Code: PUB0220

46 | February 2008 | NYSBA Journal COMPUTERS & THE LAW BY DAVID P. MIRANDA

DAVID P. M IRANDA ([email protected]) is a partner with the law firm of Heslin Rothenberg Farley & Mesiti P.C., of Albany, New York, focusing exclusively on intellectual property law and related litigation.

Doctrine of Conversion Applies to Electronic Property

n a case of first impression, the the complaint failed to state a cause of action for conversion where the New York Court of Appeals held of action with respect to the conver- defendant infringed on the plaintiff’s Ithat records and data stored elec- sion claim. The plaintiff appealed to intangible property right to a musical tronically on a computer, or otherwise, the Second Circuit Court of Appeals, performance by misappropriating a shall be treated the same as tangible and Nationwide argued that a claim master recording – a tangible item of property when the remedy of con- for conversion cannot be based on the property capable of being physically version is sought.1 The issue came misappropriation of electronic records taken.”8 before the Court of Appeals, as a certi- and data because New York did not The Court also notes the precedent fied question from the Second Circuit recognize a cause of action for the con- of expanding conversion to encompass Court of Appeals, asking “whether the version of intangible property. different classes of property, such as common-law cause of action of con- In its analysis the Court of Appeals shares of stock, motivated by “soci- version applies to certain electronic provides a historical summary of the ety’s growing dependence on intangi- computer records and data.”2 “ancient doctrine” of conversion dat- bles.”9 It is the strength of the common The Court, in a unanimous opin- ing back to the Norman conquest of law, the Court declares, “to respond, ion written by Judge Graffeo, held England in 1066.4 The Court thor- albeit cautiously and intelligently, to that records stored on a computer are oughly studies the historical roots and the demands of commonsense justice indistinguishable from printed docu- principles behind the common law in in an evolving society.”10 The Court ments and are subject to a common law its effort to apply it to current technol- adds “that time has arrived” for the claim of conversion. The Court found ogy.5 expansion of conversion to encom- there is no compelling reason to pro- The Court notes that under the pass computers, electronic data and hibit conversion for a misappropria- traditional construct, conversion was digital information,11 recognizing that tion of intangible property. Because viewed as the unauthorized assumption “society’s reliance on computers and such information is of value regardless and exercise of the right of ownership electronic data is substantial, if not of the format in which the information over goods belonging to another to the essential. Computers and digital infor- is stored, protections of the law should exclusion of the owner’s rights.6 Thus, mation are ubiquitous and pervade apply equally to both forms, tangible the general rule was that “an action all aspects of business, financial and and intangible, physical and virtual.3 in conversion will not normally lie personal communication activities.”12 The issue arose when plaintiff Louis when it involves intangible property” The realities of the digital age are Thyroff, an insurance agent for defen- because there is no physical item that such that a manuscript of a novel has dant Nationwide Mutual Insurance can be misappropriated.7 However, the the same value whether it is saved in Co., was terminated as an agent and Court’s review of historical precedent a computer’s memory, or printed on Nationwide repossessed Thyroff’s reveals the common law has evolved paper, and the same principles apply computer system, denying further over time to broaden the remedies to information that the plaintiff stored access to the computer, the electronic available for the misappropriation of on a computer. The Court points out records and data it contained. Thyroff personal property, recognizing certain that even its own opinion is drafted in commenced an action in U.S. District instances where an intangible prop- electronic form, stored in a computer’s Court against Nationwide asserting erty right can be united with a tangible memory and disseminated to the judg- several causes of action, including a object for conversion purposes. The es of the Court via e-mail. The Court claim for conversion of his business Court refers to its 1983 decision in is unable to find any reason in law or and personal information stored on the Sporn v. MCA Records, which held that logic why the “process of virtual cre- computer. The district court held that “a plaintiff could maintain a cause ation should be treated any differently

NYSBA Journal | February 2008 | 47 from production by pen on paper, or dom, flexibility, and evolving nature of v. Naxos of Am., Inc., 4 N.Y.3d 540, 797 N.Y.S.2d 352 quill on parchment. A document stored our common law principles. ■ (2005). 6. Thyroff, 8 N.Y.3d at 288–89. on a computer hard drive has the same 7. Id. at 289 (citing Sporn v. MCA Records, 58 value as a paper document kept in a 1. Thyroff v. Nationwide Mut. Ins. Co., 8 N.Y.3d 283, 832 N.Y.S.2d 873 (2007). N.Y.2d 482, 489, 462 N.Y.S.2d 413 (1983)). file cabinet.”13 8. Id. at 289–90 (citing Sporn, 58 N.Y.2d at 489). 2. Id. at 284. The decision of New York’s Court 9. Id. at 291. 3. Id. at 283. of Appeals ensures that the tort of 10. Id. 4. Id. at 286 (citing Ames, The History of Trover, 11 11. Id. conversion will “keep pace with the Harv. L. Rev. 277, 278 (1897)). 12. Id. at 291–92. contemporary realities of widespread 5. Judge Graffeo also recently provided a similar 14 13. Id. at 292. computer use” in our digital age, thorough historical analysis of the development of and serves to remind us of the wis- the common law of copyright in Capitol Records, Inc. 14. Id.

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48 | February 2008 | 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 Present Tense: Make It Happen Right Now!

o matter how exciting the you describe in court may have hap- avoid the oncoming SUV. The front left next Super Bowl is, the game pened weeks, months, or years before. corner of the Expedition slams into the Nwon’t unleash the same emo- You’ll have lived with the case for that passenger side of his patrol car. You tional impact if you watch it on the entire time. When you stand to deliver hear the sound of metal slamming into DVD they’ll release a few weeks after your opening, you already know all of metal. His patrol car spins completely the game. Why? The plays will be the the ins and outs of the case. You know around – a 360 degree turn. Shattered same. The players will be the same. all the details. You already know the glass flies in all directions. Finally, both The coaches will be the same. Why conclusion . . . but your jury doesn’t! vehicles run out of energy and come to will you care less about the replay This is the first time they’ve heard the a complete stop in the middle of the than you did about the live event? events. intersection. The difference between the two is To bring your cases to life, try switch- “Approaching the driver of the suspense. ing your language to the present tense. Expedition, you smell the strong odor When you watch something unfold Done effectively, your jury will feel of alcohol coming from his breath. . . .” for the first time, it has a sense of that things are happening right now. Did you feel like all of the events urgency and excitement: “Will it end Here is a small portion of an opening were happening right now? Every sen- safely?” “Will they survive?” “What’s statement written in the present tense. tence was in the present tense: going to happen next?” But when you To get the full effect of the technique, • “Overhead, you see the east- watch the replay, you already know read the sample aloud: bound lights on Indiantown the outcome, so it loses that emotional “You’re standing on the corner Road change from green . . . to impact. Even if you had been in a of Indiantown Road and Central yellow . . . to red.” coma during the actual Super Bowl Boulevard, next to the Mobil station. It • “The front left corner of the Expe- and were the only person on the planet is very early Tuesday morning – almost dition slams into the passenger who didn’t know which team won, the 3 o’clock in the morning. To your left, side of his patrol car.” DVD wouldn’t have the same sense of stopped at a red light, sits Officer Ron • “You hear the sound of metal excitement as the live event, because Jones, a 16-year veteran of the Jupiter slamming into metal.” you’d know that the outcome was police department. In a few moments, To use the present tense in your already determined. Nothing would his life will be changed forever. . . . next courtroom presentation, read be left to chance. Nothing could be “Overhead, you see the eastbound through your draft and look for any changed. The events would be set in lights on Indiantown Road change from phrases written in the past tense. stone. There wouldn’t be any sus- green . . . to yellow . . . to red. Officer Shift the language so that the events pense. Jones begins moving forward. That’s are happening right now. Put your That same lack of suspense dimin- when you see the Ford Expedition jurors in the scene. Take them there. ishes our courtroom presentations, driving eastbound. The driver of that Let them watch the action unfold. Let too. large Expedition doesn’t stop for the them feel the suspense: “Will it end Start by thinking about the last time red light. He doesn’t slow down. He safely?” “Will they survive?” “What’s you heard an opening statement. If drives into the intersection at almost going to happen next?” Use the pres- it was a typical opening, the law- 65 miles per hour – nearly 20 miles per ent tense effectively, and your jury yer probably spoke in the past tense. hour faster than the speed limit posted will perk up, pay more attention, and In court, we speak in the past tense to your right. experience exactly what your client because we’re describing events that “Officer Jones doesn’t have a chance experienced. ■ have already happened. The events to swerve. There’s no way for him to

NYSBA Journal | February 2008 | 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

Empire State Counsel Honorees Stewart D. Aaron, Esq. Ying Cao, Esq. Michael E. Ellis, Esq. Victor Day Hendrickson, Esq. Matthew Abbott, Esq. Yannick Carapito, Esq. Walead Esmail, Esq. Douglas Henry, Esq. Erin Abrams, Esq. James H. Carter, Jr., Esq. Nicola Espie, Esq. Stephanie Henry, Esq. Randolph Adler, Jr., Esq. Kathleen Carver-Cheney, Esq. Douglas H. Evans, Esq. Ira L. Herman, Esq. Jinny Ahn, Esq. Jason Casell, Esq. Rashad Evans, Esq. Cynara Hermes, Esq. Robert E. Alderson, Jr., Esq. Veronica Castillo, Esq. Randy C. Fahs, Esq. Evan D. Hochberg, Esq. Nilly Alshech, Esq. Amy Cerciello, Esq. Peggy J. Farber, Esq. Jeffrey D. Hochberg, Esq. James Altman, Esq. Heather J. Chase, Esq. Jennifer L. Fazio, Esq. Jeremy E. Hollander, Esq. Agnesine Rose Amamoo, Esq. Javier Chavez, Jr., Esq. Cynthia Feathers, Esq. Steven J. Hollander, Esq. Cyrus Amir-Mokri, Esq. Xiaomin Chen, Esq. Scott N. Fein, Esq. Meg D. Holzer, Esq. Cynthia R. Amrhein, Esq. Jean-Paul Ciardullo, Esq. David Feldman, Esq. Gilbert Hoover, Esq. Brett Arkuss, Esq. Paolo Cioppa, Esq. Edward Filusch, Esq. Michael Horowitz, Esq. Harel Arnon, Esq. Bruce E. Clark, Esq. David M. Fine, Esq. Steven Charles Hough, Esq. Roberta A. Arnone, Esq. William Clarke, Jr., Esq. Melissa F. Fisher, Esq. Richard R. Howe, Esq. Reid Arstark, Esq. Margaret A. Clemens, Esq. Aaron S. Fleisher, Esq. Amy Howlett, Esq. Nimrod Assif, Esq. Patricia A. Cody, Esq. Alexander M. Fong, Esq. Brikena Hoxha, Esq. Aditi Banerjee, Esq. Darren Cohen, Esq. Adam C. Ford, Esq. Geoffrey G. Hu, Esq. Preeta Bansal, Esq. David Louis Cohen, Esq. Dana E. Foster, Esq. Mary Hunter, Esq. Jessica Barcus, Esq. Jayson L. Cohen, Esq. Gregory Fox, Esq. Daniel Joseph Hurteau, Esq. Steven Barnett, Esq. Roger A. Cohen, Esq. Michael Fox, Esq. Michael D. Hynes, Esq. Sebrina Barrett, Esq. Saralyn M. Cohen, Esq. Aaron Frankel, Esq. John C. Ivascu, Esq. Margaret E. Bartlett, Esq. David Cohn, Esq. Vanessa Moreno Franklin, Esq. Evan Jacobs, Esq. Robert O. Barton, Esq. Charles E. Coleman, Esq. Ephraim Frenkel, Esq. Bijal Jani, Esq. Amy Lynn Beckman, Esq. Jerome Coleman, Esq. Elliot Friedman, Esq. Zoe E. Jasper, Esq. Julie Bedard, Esq. David B. Collier, Esq. Lauren Friedman, Esq. Khelia Johnson, Esq. Jill Choate Beier, Esq. Dwight R. Collin, Esq. Stacey Friedman, Esq. Michael Ridgway Jones, Esq. Sultana Bennett, Esq. Michael A. Cooper, Esq. John F. Fullerton III, Esq. Barry H. Junker, Esq. Michael Berengarten, Esq. Anne Reynolds Copps, Esq. John Furfaro, Esq. Danielle Kalish, Esq. Thomas E. Bezanson, Esq. Donald Crawshaw, Esq. Kevin D. Galbraith, Esq. Stephanie Kamerow, Esq. Benjamin D. Bianco, Esq. Robyn S. Crosson, Esq. Adam Gale, Esq. Helene Kaplan, Esq. Thomas C. Bivona, Esq. Eileen Mary Cunningham, Esq. Joy Ganes, Esq. William G. Karazsia, Esq. Gerald L. Black, Jr., Esq. Douglas F. Curtis, Esq. Qian Allison Gao, Esq. Ryan S. Karben, Esq. Elise M. Blackburn, Esq. William Dallas, Esq. John Gardiner, Esq. Bentley Kassal, Esq. Melissa Blades, Esq. Alan A. D’Ambrosio, Esq. Kelly Gardner, Esq. Cheryl L. Kates, Esq. Rachel Blitzer, Esq. Brian Damiano, Esq. James L. Garrity, Esq. Arielle Katz, Esq. Neil T. Bloomfield, Esq. Nicholas Danella, Esq. Elisabetta Gasparini, Esq. Dana L. Katz, Esq. Bradley R. Bobroff, Esq. Michael S. Davi, Esq. Andrew Gerber, Esq. Matthew B. Keller, Esq. Julie Boden-Adams, Esq. Justin DeCamp, Esq. Anthony Gill, Esq. Lindsay Kendrick, Esq. Harvey Boneparth, Esq. Robert DeLaMater, Esq. Noah Siskind Gitterman, Esq. Dana King, Esq. John T. Bostelman, Esq. Justin Joseph D’Elia, Esq. Jessica J. Glass, Esq. Erica D. Klein, Esq. Christina Bost-Seaton, Esq. Robert Del Tufo, Esq. Jeffrey Glekel, Esq. Jessica Klein, Esq. Matthew J. Brennan, Esq. Melissa DePetris, Esq. Peter Glennon, Esq. Rebecca B. Klein, Esq. Jeffrey Broderick, Esq. Raymond J. DeSilva, Jr., Esq. Adam B. Gottlieb, Esq. David A. Kochman, Esq. Bryan Brooks, Esq. Jennifer Diana, Esq. Jeffrey B. Gracer, Esq. Torsten M. Kracht, Esq. Seanna Brown, Esq. Buzena M. Diaz, Esq. Alphonzo Grant, Esq. Andrew N. Krinsky, Esq. Eileen E. Buholtz, Esq. Bruce M. DiCicco, Esq. Mary J. Grendell, Esq. Natalie N. Kuehler, Esq. Robert Burgdorf, Esq. Jeffrey M. Donato, Esq. James Michael Griffin, Esq. Joshua Kurland, Esq. Paul J. Burgo, Esq. Keith M. Donoghue, Esq. Judd Grossman, Esq. Paul C. Kurland, Esq. Jennifer E. Burns, Esq. David Dorfman, Esq. Claire P. Gutekunst, Esq. Elizabeth Land, Esq. Adam Busch, Esq. Amanda Doty, Esq. Richard Haddad, Esq. Dianne LaRocca, Esq. Elizabeth Byrne-Chartrand, Esq. Vincent E. Doyle III, Esq. Carolyn Handler, Esq. Jay Larry, Esq. Brian W. Byun, Esq. Adam Drapkin, Esq. Stephen F. Harmon, Esq. Elizabeth F. Larsen, Esq. Allison Caffarone, Esq. Kathleen Duff, Esq. Barbara Harris, Esq. Jaime Lathrop, Esq. Paolo Cammarota, Esq. Edmund Duffy, Esq. Kimberly Harris, Esq. Peter W. LaVigne, Esq. Michele Campana, Esq. Donald R. Dunn, Jr., Esq. Allan Hawa, Esq. Aaron O. Lavine, Esq. Michael Canfield, Esq. Jamie Eichinger, Esq. Bethany Haynes, Esq. Jerome Lawton, Esq.

50 | February 2008 | NYSBA Journal J.R. Lederer, Esq. Leslie Nguyen, Esq. Joseph R. Sahid, Esq. David Turetsky, Esq. Jessica B. Lee, Esq. William S. Nolan, Esq. Seema Saifee, Esq. Julie Turner, Esq. Michael Leichtling, Esq. Robin Nunn, Esq. Aaron Saltz, Esq. Wendy C. Unglaub, Esq. David Leitner, Esq. Justin D. O’Connell, Esq. Cary Samowitz, Esq. Michael J. Ushkow, Esq. James Leonard, Jr., Esq. Michael J. O’Connor, Esq. Edward Sample II, Esq. Devin Van Exel, Esq. Ryan S. Lester, Esq. Greg Ogunsanya, Esq. Kevin T. Saunders, Esq. Jeroen Van Kwawegen, Esq. Marissa Leung, Esq. Malcolm A. O’Hara, Esq. Madeline Schachter, Esq. Joanna R. Varon, Esq. A. Thomas Levin, Esq. Dvir Oren, Esq. Steven G. Schiesel, Esq. Angela Rosalee Vicari, Esq. Adina Levine, Esq. Erin E. Oshiro, Esq. Larry P. Schiffer, Esq. Marcos Vigil, Esq. Marcia Levy, Esq. Aisling O’Shea, Esq. Elias Schilowitz, Esq. Edward W. Vopat, Esq. Devorah Lewin, Esq. Aisling O’Sullivan, Esq. Seth F. Schinfeld, Esq. Sarah Walcavich, Esq. David A. Lewis, Esq. Gregory Palumbo, Esq. David M. Schlachter, Esq. Elizabeth Lee Walker, Esq. Donald Lewis, Esq. Jessica Paniccia, Esq. Scott A. Schneider, Esq. Michele I. Walther, Esq. Ying Ying Li, Esq. Michelle Pardoll, Esq. Mark Schneiderman, Esq. Angela Wan, Esq. Maria Lin, Esq. Matthew A. Parham, Esq. Michael Schnittman, Esq. Jennifer Ward, Esq. Peter Lin, Esq. Sonal Patel, Esq. Diane Schottenstein, Esq. John L. Warden, Esq. Joseph Lipofsky, Esq. Julia Peck, Esq. William H. Schrag, Esq. Henry Wasserstein, Esq. Joseph A. Loy, Esq. Anita Pelletier, Esq. Peter W. Schroth, Esq. Disna Weerasinghe, Esq. Paola Lozano, Esq. Matthew Peluso, Esq. Jessica Schubert-Nogara, Esq. Matthew Weill, Esq. Jean M. Lucasey, Esq. Jared Perez, Esq. Brendan M. Schulman, Esq. Ronald Weiss, Esq. Erik Kenneth Ludwig, Esq. Sara Brie Perry, Esq. Edward A. Scofield, Esq. Zev Wexler, Esq. Wendy Luftig, Esq. Rajpattie Persand-Billette, Esq. Thomas G. Scriven, Esq. Megan Whyte, Esq. Robert MacCrate, Esq. Monica Petraglia-McCabe, Esq. Ellen Sekreta, Esq. David M. Wirtz, Esq. Barrett D. Mack, Esq. Martin Petroff, Esq. Karen Seymour, Esq. John D. Witmeyer, Esq. Timothy E. Magee, Esq. Spencer D. Phillips, Esq. Samuel W. Seymour, Esq. Diana L. Wollman, Esq. Sara Manaugh, Esq. Roger Pierro, Esq. Jonathan C. Shapiro, Esq. Katherine Worden, Esq. Marco Mandel, Esq. Andrew D. Pietro, Esq. David E. Shifren, Esq. Elise A. Yablonski, Esq. Phillip Manela, Esq. Stephanie U. Poliseno, Esq. Pamela Shisler, Esq. Allison Young, Esq. Michael D. Mann, Esq. Rebecca Porath, Esq. Sylvia Shweder, Esq. Christina C. Young, Esq. Lindsay M. Manning, Esq. Adam H. Price, Esq. Stephan J. Siegel, Esq. Bari Zahn, Esq. Phillipe Manteau, Esq. Melissa J. Prober, Esq. Levi Silver, Esq. Haim Zaltzman, Esq. David Marden, Esq. Evelyn Rose Marie Protano, Esq. Chad Silverman, Esq. Tracy Zanco, Esq. John Marfoe, Esq. Jorge Pruneda, Esq. Rebecca J. Simmons, Esq. Marlene Zarfes, Esq. Jeffrey S. Marsilio, Esq. Parthena G. Psyllos, Esq. Scott Simpson, Esq. Christian Zebicoff, Esq. Miriam Marton, Esq. Janna M. Pulver, Esq. Alan J. Sinsheimer, Esq. Aryeh Zuber, Esq. Christopher Mason, Esq. Kevin Purcell, Esq. Robert J. Sisson, Esq. Ronald C. Mayer, Esq. Yvonne S. Quinn, Esq. Harvey Sladkus, Esq. Maxim Mayer-Cesiano, Esq. Brian Raimondo, Esq. Douglas Smith, Esq. Law Firms with 10 or Sarah McCallum, Esq. Kenneth Raisler, Esq. Jeffrey G. Smith, Esq. More Attorneys Qualifying Eichakeem McClary, Esq. Claudia Ray, Esq. M. Brendan Smith, Esq. as Empire State Counsel Joseph McFadden, Esq. Jordan T. Razza, Esq. Leticia Smith-Evans, Esq. Colm McInerney, Esq. Robert Reeder, Esq. Tina J. Soloski, Esq. DLA Piper US, LLP Melinda McLellan, Esq. Michael Rella, Esq. Jessica Sonenshein, Esq. Kay Scholer, LLP James H. McQuade, Esq. Andrew H. Reynard, Esq. Christopher A. Spence, Esq. Daniel Medalie, Esq. Frederic C. Rich, Esq. Matthew V. Spero, Esq. Kramer, Levin, Naftalis & David Meyers, Esq. Taliah Starr Roach, Esq. Gregory St. Clair, Esq. Frankel, LLP Marisa Miller, Esq. Ashley B. Roberts, Esq. Kevin Stein, Esq. Nixon & Peabody, LLP Raquel A. Millman, Esq. Michelle L. Roberts, Esq. Cynthia Steinmetz, Esq. Karen Mills, Esq. Terence Robinson, Esq. Emily Stern, Esq. O’Melveny & Myers, LLP Michael Mishik, Esq. Gail Rodgers, Esq. Andreas Stier, Esq. Orrick, Herrington, & Zia Mody, Esq. Veronica Rodriguez, Esq. Sharon P. Stiller, Esq. Sutcliffe, LLP* Michael M. Mohun, Esq. Boyd L. Rogers, Esq. Kelann Stirling, Esq. Charles Molluzzo, Esq. Courtney M. Rogers, Esq. Benjamin D. Stone, Esq. Proskauer & Rose, LLP Martha Montour, Esq. Cara Lynn Romanzo, Esq. Randi Strudler, Esq. Skadden Arps Slate Meagher & Gerald Morganstern, Esq. Mark F. Rosenberg, Esq. Karen Suber, Esq. Horn LLP Blake Morris, Esq. Todd Rosenfield, Esq. Kaycee M. Sullivan, Esq. Sullivan & Cromwell Abigail R. Mulligan, Esq. Richard P. Rossettie, Esq. Avi Szenberg, Esq. Edward J. Mullins, Esq. Jena Rotheim, Esq. Ronald Tabak, Esq. Troutman & Sanders, LLP Catherine Nearpass, Esq. John Rousakis, Esq. Matthew Ryan Tague, Esq. Benjamin Needell, Esq. Andrew Rowen, Esq. Miriam Tauber, Esq. Rebecca Neri, Esq. Adam Rubin, Esq. Willard Taylor, Esq. Yonatan Nesher, Esq. Diana Rubin, Esq. Marianna V. Toma, Esq. Joseph Neuhaus, Esq. Patricia Ryder, Esq. Jeffrey S. Trachtman, Esq.

NYSBA Journal | February 2008 | 51 ATTORNEY PROFESSIONALISM FORUM

To the Forum: the guardian’s direction to the annuity under-representation of women in the A former client of mine (a woman of company to make future payments to partnership ranks and the exodus of some means) had moved to another him, rather than to a New York bank women and minorities from the pro- state, but we had kept in touch, and I account or escrow account. Perhaps fession altogether. gave her some friendly advice about more important, you really do not In recent years, as Generation “X” her activities and lifestyle. She now know your former client’s true psychi- and “Y” law graduates have entered informs me that she has been diag- atric state. If she has been, or shortly the workforce in increasing numbers, nosed as bi-polar, and she is being may be, adjudicated an incompetent, attrition rates have skyrocketed, as held in a state mental institution. A how will you be able to justify carrying has the corollary cost of recruiting guardian has been appointed by the out her instructions, even if the foreign and training new lawyers to replace court of that state to take control of her court has no jurisdiction over you? those who leave in search of greener property and assets. If and when the guardianship is ter- pastures. She has been getting money from minated, you can then act as her fidu- The reason for this phenomenon a trust set up in New York by her late ciary. But good intentions alone will is simple: the values and traditional father, pursuant to which an annu- not keep you from trouble. The short lifestyles of those at the top of the ity was created to give her monthly answer is, “when in doubt, don’t.” legal field contrast starkly with those payments for life. She called me on of recent law graduates, both men the phone to ask if she could direct The Forum, by and women. Yet, the economic impact the Nebraska insurance company to Edward J. Greenfield of the high associate turnover alone send future monthly payments to me. J.S.C. (ret’d) has been insufficient to cause legal I would set up a New York escrow New York City employers to re-evaluate the way that account to be turned over to her at an things have always been done. appropriate later time. Would this be We received the following comments Over the past year, however, the eco- considered an evasion of the foreign from the Gender Equity Task Force of the nomic impact of their failure to adapt state order which specifies that her New York State Bar Association, regard- to changing times has been brought assets and property be taken over by ing Ken Standard’s and Carrie Corcoran’s the guardian? I think future payments response to “A Besieged Firm Leader,” which originate in Nebraska pursu- published in the Attorney Professionalism ant to a New York trust and which Forum, November/December 2007 Journal. never reach the foreign state may be The Attorney Professionalism Committee excluded. Can I presume she has the Historically, legal employers have invites our readers to send in comments apparent capacity to direct her annuity been steadfastly and notoriously reluc- or alternate views to the responses payments? Is my giving of telephone tant to change the way business “has printed here, as well as additional advice possibly be considered prac- always been done” despite a growing hypothetical fact patterns or scenarios to ticing law in the foreign state? I am outcry from associate attorneys strug- be considered for future columns. Send uneasy about what may be be consid- gling to balance their professional and your comments or questions to: NYSBA, ered an attempt to thwart the order of personal lives. “It will affect our bot- One Elk Street, Albany, NY 12207, Attn: a foreign court. tom line” is the oft-repeated refrain, Attorney Professionalism Forum, or by offered to justify employers’ resistance e-mail to [email protected]. Sincerely, to altering the traditional workplace This column is made possible through Concerned Counselor structure. the efforts of the NYSBA’s Committee on Requests for flexible work sched- Attorney Professionalism. Fact patterns, Dear Concerned Counselor: ules, more varied networking opportu- names, characters and locations presented You raise some thorny questions. It nities, and alternate methods of deter- in this column are fictitious, and any resem- is perfectly all right to give friendly mining compensation have generally blance to actual events or to actual persons, advice gratis on the telephone, but do been ignored, or granted in theory, living or dead, is entirely coincidental. These not purport to advise on the laws of but not enforced in practice. As the columns are intended to stimulate thought another state where you are not admit- ranks of entry-level attorneys become and discussion on the subject of attorney ted. increasingly more diverse, and women professionalism. The views expressed are While the future annuity payments represent over 50% of the attorneys those of the authors, and not those of the under the New York trust are not yet in the “pipeline” of new graduates, Attorney Professionalism Committee or part of this lady’s property, any future the refusal to consider such requests the NYSBA. They are not official opinions dividends or payments due are valu- for change has disparately impacted on ethical or professional matters, nor able assets. The foreign court’s order women and minority attorneys. The should they be cited as such. therefore would presumably support predictable result has been a dramatic

52 | February 2008 | NYSBA Journal home to legal employers, as their long- for diversity doesn’t create a new prob- attorneys themselves. Of course, when time corporate clients demand more lem; it solves an existing one. we get before a judge, the judge also diverse legal teams reflective of their attempts to expedite a settlement, but own organizations. At last, the poten- such efforts can be thwarted by coun- tial loss of these core clients, combined QUESTION FOR THE sel who insist that their client believes with the increased costs associated with NEXT ATTORNEY right is on his side. Counsel demands high attrition rates, has caused many PROFESSIONALISM FORUM: “justice,” even when the weakness of employers to sit up and take notice. the client’s case is apparent to every- Those poised at the upper echelons of I am litigation counsel to a business one. the legal field would be well advised client that has expressly directed me to I believe Ethical Considerations, if to embrace change – and take advan- settle whenever possible, and as early not Disciplinary Rules, are being vio- tage of the newfound flexibility offered as possible. Management is so strongly lated in such circumstances, but am by technologic advancements. Rather averse to litigation that, in my experi- unsure as to what I can do. I also than seeking ways in which to avoid ence, this company will take a sub- would like to know what the court’s complying with clients’ demands for stantial loss rather than litigate – even responsibilities are when it is clear that diversity, perhaps it is high time to re- when it is clearly in the right. a lawyer is not serving the interests evaluate whether the inflexible work- Unfortunately, in attempting to of his or her client, but is perpetuat- place environment is due for a major implement my client’s policy I fre- ing litigation for the lawyer’s own overhaul. Your clients will be satisfied, quently have been confronted with benefit. Finally, how do I explain this your associate attorneys will be newly opposing counsel who will resist any predicament to my own client, who content, thus reducing the costs cre- suggestion of settlement. On occasion, is also being prejudiced by the other ated by high attrition rates, and your my suspicion that certain lawyers are attorney’s behavior? profit margins will increase. Turn your refusing to discuss settlement because clients’ request on its head and you they simply want to maximize their Sincerely, might just realize that their demand own billings has been confirmed by the Doing a Slow Burn

NYSBA Journal | February 2008 | 53 LANGUAGE TIPS BY GERTRUDE BLOCK

uestion: As a recent graduate a large majority, even well-educated If readers have an opinion, feel free to of law school who is seeking people choose lay, ignoring the irregu- send it in. Qemployment, I have been told lar verb lie. At this law school, when the I do, however, feel qualified to by an older lawyer that I am incorrect- weather is pleasant, one hears plans of recount a story that has some rel- ly using the verbs lie and lay. I know “laying out in the sun.” (In fact, the evance. It seems that while a small ship there used to be a rule about those two phrase in the sun is redundant, for the was cruising far from shore, a beauti- verbs, but does it still exist? It seems phrase laying out by itself is understood ful young woman became ill, and the to me that nobody distinguishes them to mean “lying in the sun.”) ship’s captain called for a doctor to anymore. The predominance of the incorrect care for her. A young veterinarian, hav- Answer: Yes, there still is a rule, use of lay as both a transitive verb and ing observed this woman previously and, yes, almost no one observes it as an intransitive verb is not new. In on board, thought that perhaps he any more. That “older” lawyer who fact, lie and lay have a common ances- could be of assistance and decided to corrected your usage must have been tor in the Old English verb licgan. respond. When he arrived at her state- substantially older to have alerted you But during the Middle English period, room to offer his services, however, he to its presence. The words lie and lay modern lie had become lien, while found that he was too late. It seemed have become a shibboleth that entitles modern lay had become laien – perhaps that a psychiatrist, a podiatrist, and you to membership in a small, elite having confused English speakers ever a Ph.D. professor of education were group. But that membership may con- since the 11th century! already in attendance. vey advantages other than a sense of Rochester attorney Louis D’Amanda, superiority, so here is an explanation who has retired, recently shared an From the Mailbag: about the rule. anecdote on the subject of lie and lay Sometime ago a reader questioned me Beginning with the easy part of recalled from his trial work. He wrote about the meaning of the phrase “in the the explanation, there is no problem that when his adversary misused the event,” which he has frequently seen with the intransitive verb lie when it verb lay while questioning Attorney in articles in The New Yorker magazine. means “tell a falsehood.” That lie is a D’Amanda’s witness, D’Amanda The quotation he cited for this particu- regular verb with a normal past tense would object to the form of the ques- lar usage was, “The tangled diversity and perfect tense, both ending in -d: tion and then lecture the opposing of faith is, in the event, no obstacle for for example, “He lied today and he lawyer on the transitive-intransitive Hitchens.” It appeared in the May 21, has lied before.” The transitive verb distinction between lie and lay. Finally, 2007 issue at page 79. I answered that lay is also a regular verb with a normal Attorney D’Amanda would quote H.K. unless the phrase was a variant usage past and perfect tense. For example, Fowler’s comment that the confusion of “in any event,” I could not guess you can lay a book on the table, you between the two words is “very com- without seeing the larger context in laid it there yesterday, and you may mon in uneducated talk.” which it appeared. The questioner have laid the book on the same table Attorney D’Amanda added, “This then wrote to The New Yorker magazine last Tuesday. generally embarrassed counsel in front for an explanation, but reports he has Lay means “to place or to bring to a of his client. It would be a shame to received no response. Perhaps other position.” It also has a number of other think that this mild knee-capping antic readers can help. ■ meanings (for which see a dictionary), is no longer available.” but it always requires an object. (You Question: Isn’t it incorrect for a GERTRUDE BLOCK is lecturer emerita at the must lay something; you cannot just lay lawyer who is not a member of the University of Florida College of Law. She is the down or lay still.) corporate law department of a cor- author of Effective Legal Writing (Foundation The confusion between the two poration, but who was hired by the Press) and co-author of Judicial Opinion Writing verbs, the transitive lay and the intran- human resources department as a vice- (American Bar Association). Her most recent sitive lie occurs because lie is an irregu- president of compliance, to send out book is Legal Writing Advice: Questions and lar verb, whose past tense is lay, so the memoranda and e-mails both internal- Answers (W. S. Hein & Co., 2004). past tense of lie looks exactly like the ly and externally, identifying himself present tense of lay. To increase the as “Esq.”? confusion, the past tense of lie is lain, Answer: The honorific Esq. has elic- which differs only in its final letter ited many questions on subjects about from the past tense of lay. which I felt qualified to answer, but The result of this similarity in spell- this question seems to be a matter ing and in meaning is that most people of professional etiquette, so only the do not distinguish the two verbs. By opinion of other lawyers is pertinent.

54 | February 2008 | NYSBA Journal THE LEGAL WRITER Don’t use a question mark for a emphatic declaration, or interjection. CONTINUED FROM PAGE 64 command. Example: “Would you write Examples of commands: “Stop!” “Quiet the brief now, please.” in the courtroom!” Examples of emphatic Don’t use periods for acronyms. To Don’t put a question mark at the end declarations: “Wow!” “His direct exam- create an acronym, take the first letter of a sentence that begins with “wheth- ination was brilliant!” “Examples of from a series of words to form a pro- er.” “Whether” is a statement, not a interjections: “Excuse me!” “Cheers!” nounceable word that stands for some- question. Correct: “Whether the defen- Put an exclamation point inside thing. Examples: “AIDS” and “NATO.” dant’s conviction should be reversed is the quotation mark if the exclamation “AIDS” stands for Acquired Immune the only issue before the court.” point is in the original. Put an exclama- Deficiency Syndrome. “NATO” stands Put a question mark inside quotation point outside if the exclamation for North Atlantic Treaty Organization. tion marks if the question is in the point is not in the original. Example Because you can pronounce acronyms original. Put it outside if it’s not in the of an exclamation point in the original: as words, you don’t need periods. original. Example of a question mark in The judge said, “Stop screaming at Use periods for abbreviations. the original: The judge asked, “How the witness!” Example of an exclamation Abbreviations are different from acro- long will you cross-examine this wit- point not in the original: The partner Good punctuation makes you feel, hear, and understand language. nyms; you pronounce each individual ness?” Example of a question mark not told her to rewrite her brief because it letter in an abbreviation. Examples: in the original: Does the judge always was “ungrammatical and incompre- U.S.A., N.A.A.C.P., N.C.A.A., F.B.I. need to say, “Counselor, let’s move it hensible trash”! Newspapers and magazines omit the along”? Exclamation points may accompa- periods from common abbreviations to If the sentence and the quoted mate- ny mimetically produced sounds: “All save space. If your readers are famil- rial are questions, don’t use two ques- night long, I heard the dogs woof! in iar with the abbreviation, don’t use tion marks. Incorrect: Did I just say, my neighbor’s apartment.” “The dog periods. “May I use your telephone to call my went Grr!, and I left the room.” In American usage, always put peri- client?”? Correct: Did I just say, “May I Avoid exclamation points in legal ods inside quotation marks. Incorrect: use your telephone to call my client?” writing. They tell readers that you’re Judge Joe said, “I want order in the When a question ends with a series exaggerating or screaming at them. courtroom”. Correct: Judge Joe said, “I of brief questions that are follow-up Use exclamation points for informal want order in the courtroom.” questions to the main question, each writing, like birthday wishes to a loved 2. Question marks. Use a question follow-up question should begin with a one or the occasional informal e-mail. mark at the end of a direct question, lowercased letter and end with a ques- Instead of using exclamation points or one to which you expect an answer. tion mark. Example: “Who’s respon- to intensify your writing, use con- Examples: “When does the courthouse sible for this mistake? the associate? crete nouns and, even better, vigorous close?” “Who’s your next witness?” the partner? the paralegal?” verbs. Don’t use a question mark for Question marks denote uncertainty: 4. Colons. Colons press readers for- an indirect question or declaration. “Judge Abe wrote two (?) opinions ward. Use a colon after a salutation Example of indirect question: “I wonder today.” in formal writing. Example: “Dear Ms. whether I’ll finish the trial this week.” Place question marks inside paren- Doe:” Use a comma, not a colon, after Example of declaration: “Albany is New theses when asking a question: “Judge a salutation when writing to friends. York’s capital.” Z’s opinion (when did she learn to Incorrect: “Dear Joe:” becomes “Dear Put a question mark at the end of a write so well?) is stellar.” Joe,” sentence if a question is embedded in Rhetorical questions, or questions Separate hours from minutes with the sentence. Examples: “We can get to a writer asks for which the writer a colon. Example: “2:15 p.m.” Separate the courthouse, can’t we, if we take the doesn’t expect an answer, should end book titles from subtitles with a colon. Brooklyn Bridge?” “I wonder: will Joe with a question mark. Example: “How Example: “Advanced Judicial Opinion run for office?” else should we end the brief, after all?” Writing: A Handbook for New York Don’t use a question mark for a But avoid using question marks unless State Trial and Appellate Courts.” polite request. Examples: “Would every- you’re quoting. Good legal writers Separate chapter from verse with a one in the courtroom please check in answer questions, not ask them. colon. Example: “Thou shall not kill.” with the court officer.” “Please send 3. Exclamation points. Use an excla- me a copy of the opinion.” mation point at the end of a command, CONTINUED ON PAGE 56

NYSBA Journal | February 2008 | 55 THE LEGAL WRITER CONTINUED FROM PAGE 55 lows the colon. Examples: “The judge cases, the judge issues a decision in gave her a useful suggestion: Evaluate three days; therefore, litigants don’t Exodus 20:13 (King James). Use a colon a case before you accept a client.” have to wait for justice.” Use a semico- to introduce a definition. Example: “The judge made one finding: The lon to separate two independent claus- “Lawyer: An individual with a brief- defendant failed to prove her insan- es if the second independent clause has case who can steal more than a hun- ity defense.” Don’t capitalize after a a conjunctive adverb somewhere in dred men with guns.”1 Use a colon to colon when a dependent clause follows the sentence, usually after the subject. replace “is” or “are.” Example: “The the colon. Examples: “The judge gave Example: “The judge told his law clerk diagnosis: terminal double-speak.” her a useful suggestion: to evaluate to evaluate the merits of the case; he Use a colon after an independent the merits of a case before accepting therefore told his law clerk to prefer clause — defined as a clause that has a a client.” “The judge made one find- logic to emotion.” subject, a verb, and can stand on its own ing: defendant’s failure to prove her Use semicolons in lists that con- as a sentence — to (1) introduce lists, insanity defense.” If more than one tain internal commas or an “and” or (2) introduce an illustrative quotation, independent clause follows the colon, “or.” Example of a list with an internal or (3) show that something will follow. begin each independent clause with a comma: “On trial for embezzlement Example of an independent clause intro- capital letter: “Andrea was acquited were Lawyer A of Queens, New York; ducing a list: “The defendant asserted for two reasons: First, the People failed Lawyer B of White Plains, New York; three defenses: insanity, extreme emo- to prove that she committed the crime and Lawyer C of The Bronx, New tional disturbance, and self-defense.” beyond a reasonable doubt. Second, York.” Example of a list containing “and”: But consider the following example: the jurors didn’t find the People’s wit- “For the firm’s holiday party, please “The attorney determined that his cli- nesses credible.” buy roast beef and turkey sandwiches; ent’s best defenses included insanity, Colons always go outside quota- red and white wine; and diet and regu- extreme emotional disturbance, and tion marks. Example: She described lar soda.” Example of a list containing self-defense.” You don’t need a colon her legal career as a “roller-coaster “or”: “Check-in at 9:30 a.m. in Parts A after “included”; the preceding clause ride”: some successes, some failures, or B; at 11:30 a.m. in Parts C or D; or at isn’t an independent clause. Example and everything in between. 2:15 p.m. in Parts E or F.” It’s accept- Spacing: Use two spaces after a able in lists to use two or more semico- “Parentheses are colon in typing and one space in pub- lons in the same sentence. lishing. Use semicolons to replace commas (usually) too informal 5. Semicolons. Don’t confuse colons and coordinating conjunctions (“and,” for legal writing.” with semicolons. Colons press read- “but,” “for,” “nor,” “or,” “yet”). ers forward. Semicolons slow readers Example (replacing “but”): “The respon- of an independent clause introducing down. dent didn’t agree with paragraph a quotation: The court ruled against Use semicolons to connect closely seven of the stipulation; he agreed the petitioner: “Doe proved she’s the related independent clauses. Example: with everything else.” Example (replac- real tenant.” Example of an independent “In straightforward cases, the judge ing “or”): “Arrive at the courthouse by clause showing that something will follow: issues a decision in three days; in 9:30 a.m.; your case will be dismissed “The Civil Court instituted a new rule: complicated cases, it’s 30 days.” Don’t at 10:30 a.m.” Guardians ad litem must complete a use semicolons — use commas — to The first letter after a semicolon is case summary form.” Colons signal connect dependent clauses to inde- lowercased, unless the word is a prop- that clarifying information will follow. pendent clauses. Incorrect: “While we er noun. Examples: “John Doe takes Unless what follows is a quota- were waiting in court; the defendant a week to pick a jury; James Roe, his tion, a colon may not follow a depen- attacked the prosecutor.” partner, takes an hour to pick a jury.” dent clause, defined as a clause that Use semicolons to avoid run-on sen- “The attorney takes a week to pick a can’t stand on its own as a sentence. tences. Use semicolons, not commas, jury; his partner takes an hour to pick Incorrect: “The area codes she calls to separate two independent clauses if a jury.” most often are: (212), (718), (917), and the second independent clause begins Use a semicolon between string (646).” Correct: “The area codes she with a conjunctive adverb (“accord- citations. Example: Plaintiff v. Defendant, calls most often are (212), (718), (917), ingly,” “again,” “also,” “besides,” 999 U.S. 999 (2009); Plaintiff v. Defendant, and (646).” Correct: His advice was: “consequently,” “finally,” “for exam- 98 U.S. 890 (2008). Use commas, not “Be confident but not over-confident.” ple,” “furthermore,” “hence,” “how- semicolons, within a parallel cita- Better: His advice: “Be confident but ever,” “moreover,” “nevertheless,” “on tion. Incorrect: Plaintiff v. Defendant, not over-confident.” the other hand,” “otherwise,” “rath- 99 N.Y.3d 123; 100 N.E.2d 100; 500 Uppercase the first word after a er,” “similarly,” “then,” “therefore,” N.Y.S.2d 799 (2009). colon when an independent clause fol- “thus”). Example: “In straightforward

56 | February 2008 | NYSBA Journal Overusing “[sic]” suggests you’re insulting Put semicolons after and outside “Lawyers must read carefully (and parentheses. Example: “Lawyer F lost write carefully).” Example of an indepen- or embarrassing the the case (his tenth loss in 12 months); dent clause inside parentheses: “Lawyers original quotation’s this year he might not get a bonus.” must read carefully. (They must also author. When a semicolon follows an abbre- write carefully.)” viation with periods, it’s acceptable Use double parentheses in a sen- According to the Tanbook, use to put a semicolon after a period. tence or sentence citation. Correct brackets to add information like years Example: “The witness testified that in Bluebook example: Plaintiff v. Defendant, and names of courts.5 Example: (Plaintiff 1993 he received his B.A.; he graduated 99 N.Y.S.2d 500, 511 (3d Dep’t 2009) v Defendant, 50 AD3d 50, 50 [4th Dept from SUNY Plattsburgh.” (citing C v. D, 999 U.S. 999 (2007)). 2009].) Semicolons always go outside the Parentheses de-emphasize. To Brackets go inside parentheses.6 quotation mark. Example: The judge emphasize, use “em” dashes (“—”). Tanbook example: (Plaintiff v Defendant, told the defendant,“I want to make 7. Brackets. In a quotation that con- 50 AD3d 50, 50 [4th Dept 2009].) sure you never get out of jail”; thus, he tains a factual, spelling, or usage error, Add a space between parenthe- sentenced the defendant to life without use “[sic],” meaning “thus,” after the ses and brackets. Example of spacing parole.” error. If the context makes it clear that between parentheses (Bluebook example): Spacing: Put one space after a semi- the mistake was in the original, don’t Plaintiff v. Defendant, 55 N.Y.S.2d 55, 56 colon. add “[sic].” Correct: “The attorney (2d Dep’t 2009) (finding that plaintiff 6. Parentheses. Parentheses direct subjected [sic] to the exhibit’s admis- had no exclusive control over instru- readers to additional and slightly dif- sion in evidence.” The author meant mentality). Example of spacing between ferent information. They also set off to write “objected,” not “subjected.” a parentheses and a bracket (Bluebook explanations, interruptions, or phrases Use “[sic]” sparingly. Overusing example): Judith S. Kaye, Inaugural Hon. that obscure the main text. Examples: “[sic]” suggests you’re insulting or Joseph W. Bellacosa Distinguished Jurist- “Parentheses are (usually) too infor- embarrassing the original quotation’s in-Residence Lecture, 81 St. John’s L. mal for legal writing.” “Settle this case author. Consider using brackets to Rev. 743 (2007) [hereinafter Lecture]. (trust me!).” correct the quotation. Example of spacing between two brackets Parentheses introduce abbreviations Use brackets in a quotation to show (Tanbook example): (Plaintiff v Defendant, and acronyms. Example: The New York alterations or additions to a letter or 99 NY3d 100, 101 [2009] [finding that City Police Department (NYPD). letters in a word. Examples: “Clearly” plaintiff had no exclusive control over Use parentheses for citations in becomes “Clear[].” “Proof” becomes instrumentality].) official New York State (Tanbook) “Pro[ve].” “Clearly” becomes “[c] In the next issue, the Legal Writer style.2 Example: “Because the landlord learly.” “Clerly” becomes “Cle[a]rly.” will continue with more punctua- knew about the subtenant’s presence, Consider the following original text in a tion. ■ the court found no illusory tenancy. judicial opinion: “For the above-men- (Plaintiff v Defendant, 50 AD2d 50, 50 tioned reasons, the court finds that 1. Mario Puzo, The Godfather 52 (1969). Original quotation: “A lawyer with his briefcase can steal [5th Dept 2009].)” Use parentheses to Defendant has no proof to substanti- more than a hundred men with guns.” explain ambiguous citations following ate her affirmative defense.” Alteration 2. New York Law Reports Style Manual (Tanbook) citations, according to the Bluebook.3 example (end of a word): The court R. 1.2(a), at 2 (2007), available at http://www. Use brackets, according to the Tanbook.4 determined that Defendant did not nycourts.gov/reporter/New_Styman.htm (html version) and http://www.nycourts.gov/reporter/ Bluebook example: Plaintiff v. Defendant, “pro[ve] . . . her affirmative defense.” NYStyleMan2007.pdf (pdf version) (last visited 99 N.Y.S.2d 500, 511 (3d Dep’t 2009) Alteration example (capitalizing): The Dec. 11, 2007). (finding that plaintiff was not “closely court made the following finding: “[T] 3. The Bluebook: A Uniform System of Citation related” to victim). Tanbook example: he court finds that Defendant has R. 10.4, 10.5, 10.6, at 89–92 (Columbia Law Review Ass’n et al. eds., 18th ed. 2005). (Plaintiff v Defendant, 99 AD3d 500, 501 no proof to substantiate her affirma- 4. Tanbook R. 1.1(a), at 2. [3d Dept 2009] [finding that plaintiff tive defense.” Addition and alteration was not “closely related” to victim].) example: “[T]he court f[ou]nd[] that 5. Id. Enclose your parentheses. Incorrect: Defendant ha[d] no [documentary or 6. Id.; R. 1.2(c)(2), at 3. “1).” Becomes: “(1).” Unenclosed paren- testimonial] proof to substantiate her theses are difficult to read. affirmative defense.” GERALD LEBOVITS is a judge of the New York City If the parentheses appear at the end Never add within quotation marks Civil Court, Housing Part, in Manhattan and an of a sentence, punctuate after the final long bracketed text after a quota- adjunct professor at St. John’s University School parenthesis. If the parentheses con- tion. Incorrect: The court found that of Law. He thanks court attorney Alexandra tain an independent clause, punctuate Defendant failed “to substantiate her Standish for researching this column. Judge inside the final parenthesis. Example affirmative defense [by a preponder- Lebovits’s e-mail address is [email protected]. of parentheses at the end of a sentence: ance of the credible evidence].”

NYSBA Journal | February 2008 | 57 NEW MEMBERS WELCOMED

FIRST DISTRICT Peter Alexander David Keinan Robert J. Nissenbaum Susan Anne Smith Rebecca Gretchen Abel Devonshire Erin Marie Kelechava Julia Ann Noone Netra Sreeprakash Sharif Abou-taleb Daniel Diaz Jennivere Lorien Kenlon Robert Lawrence Katherine Elisa Steadwell Jonathan Ahdoot Ali Donat Anne Evelyn Kennedy O’Connor Ariel Leigh Stillman Kambiz Akhavan Patrick Michael Dowd Alejandra Kim Matthew Peter O’Donnell Jason M.H. Storey David Joseph Albanese Laura E. Drager John Seungbum Kim Adebola Adepeju Christof Strasser Shirley Leah Altman Adrienne Z. During Stephanie Kim Olufowobi Scott Sukenick Agnesine Rose Amamoo Hindy Dym Sean Joseph Kirby Jonathan Hawkins Bradley Marshall Paul Gregory Anderson Darren Jacob Edelstein Joshua Taylor Kluewer Pacheco Sussman Mark A. Angelov Michael Allan Eisenberg Smita G. Korrapati Yevgenia Paikine Nicole A. Tartak Joshua A. Apfelroth Maria C. Esguerra- Andrew Kreisberg Ritu Pancholy Gabrielle Elizabeth Pablo David Arredondo Agcaoili Justin Slade Krell Avani Ambalal Patel Tenzer Robin Amelia Arzon Jonathan A. Espiritu Vicky Ku Brandy Lane Paulsen Kenny S. Terrero Arica Dawn Aylesworth Nicole Le Estey Priyadarshini Kumar George David Vinay Thakur Daniel Backenroth Emily Cooke Feinstein Jill Christine Lanigan Pavlenishvili Lara Corey Thyagarajan Joseph Anthony Deborah L. Feldman W.J. Larry William Robert Pearson Paul Moty Tiger Baranello Jing Feng Celina Kim Lee Ryan Perry Christopher Michael Steven Richard Barnett Valeria Figueredo Linda M. Lemiesz Scott Pilutik Timmel Brian P. Barrett Michael A. Forastiere Joanna P. Leung Lucy Shirk Popkin David L. Tisch Michael David Battaglia Terry Manabu Fukui Jessica Ruth Levie Irina V. Popova Rosalie Consuelo Aaron Matthew Beim Kimberly Ann Gavin Jessica Levitas Maor Portnoy Valentino Andrey Belenky Anna Gercas Wing Hay Liang Susan Beverly Prewitt Concepcion Valenzuela Nicole Marie Beliveau Jonathan Henry Gerstein Jimmy Chin Yi Liao Ryan Patrick Prindle Roberta Vassallo Leonard Berkowitz Daniela Mihaela Ghile Michael J. Lichtenstein Claudette Amaris Pulido Sara Christine Vecchiotti Joshua Adam Beser Sarah Kendle Giesting Jing Lin Robert C. Randolph Manuel Jose Velez Kristie Blase James Houston Goddard Harmony Iris Loube Rati Ranga Suzanne Ellen Ashleigh Lauren Blaylock Mohit Gogia Sean Wesley Lyons Jessica Erin Rank Wachsstock Nora Bojar Amanda H. Gold Meghan Elizabeth Emily Jean Ratte Brian Jonathan Alicia Ann Bond Karen Goldstein Macavery Michael Reddy Weinberger Nicholas James Bragg Michael Ted Goldstein Donald James Macbean Jasmin Jean Redhead Lee Weiss Katherine Anne Brodsky Guerlyne Gracia Maria Nicole Maccone April Ann Regonlinski Miranda Jolene Susan Friedman Bruno Fabrizio Grasso Michael Henry Mahan Robert J. Reilly Welbourne David Andrew Byrne Violet Elizabeth Grayson Cindy Chang Mahlberg Monica Reyes Grajales Kimberly Ellen Wentzler Alexandra Bystritskaya Stuart Michael Green Daniel Peter Margolis Carlos Eduardo Rivas Sarah Elizabeth Wesley Ioana Calin Richard Edward Gruber Jennifer Lyn Marino Emily Heather Rokeach Michael Philip Wise Sean Phillip Cameron Adil Ahmad Haque Ryan Noah Marks Edileno Delfino Roman Lindsey Elizabeth Wolf Cody S. Campbell Marsha Ellen Harris Deborah L. Martin Brian James Rooder Camille Linda Zentner Laurie Ann Centeno Ayana Sabree Harvey Joanne Te Martinez Alejandro Rosenberg SECOND DISTRICT Catherine Paskoff Chang Francis J. Harvey Michael J. Masri Orit Rosenthal Aisha Nichol Alleyne James Chang Meghan Morrison Hast Julianna Mather Michal Rothschild Jillian Mae Amagsila Karen Ken Yen Chao Brett David Helgren Jerome Patrice Maria C. Rubinos Tamara R. Bloom Jean Chen Kelly Helt McCluskey Yuli Rudin Amanda Marie Burns Susan Anne Chen Kristen Luise Hendricks Jason Bradley Daniella Marion Rudy Ruth Chow Karen Marie Cherrington Herbert Hirsch McCullough Jessica Suzanne Ryan Sharon Michelle Connelly Mark Joseph Chorazak Ronald Edwin Holmes Braden Kyle McCurrach Alexandra Sagalovich Louis W. Corbo Laura Ann Chubb Heather Leigh Hopkins Patrick Anthony Lyatt Samama Jamie Stephen Dycus William Armstrong Enam Hoque McGlashan Pierre-Olivier Stanislas Peter Goldberger Clareman Elizabeth Kelley Raul E. Menar Savoie Tatiana Ingman Michael Squillace Cleary Horowitz Kenneth Wayne Miller Thomas Edward Scanlon Kimberlee Natasha Jack Daryl Cohen Shawn T. Hynes Yewon Min Howard S. Schrader Joseph Michele Alexandra Cohen Jibril Hassan Jackson Fatemeh-Leyla Judd Samuel Schreiber David Dongsuk Kim Chauncey David Cole Moonjeong Bridget Jang Moallemzadeh- Eliza Hamilton Scott Mrinalini Kochupillai Tara Lynn Collins Kirsten Courtney Jansen Haghighi Philip Scott Selig Maya Kogan Michele Connolly Kathleen Renee Johnson Christine Jean Morse Victor Semah Jermaine Lawrence Matthew Gregory Conroy Nicole Marie Jones Jeffrey Steven Mosczyc Madeleine Severin Yehuda A. Lichtman Jessica Leigh Lopez Seunghee Lucy Joo Christian Moser Nan Shen Simone Michele Manigo Cortez Tracy R. Jordan Ben Moskovits Daniel Colin Sheridan Kara McGuiness-Hickey Vittorio Cottafavi Cheryl Alicia Josephs Alexis Nicholas Mueller Kara Danielle Siegel Daniel Mitrano Kalisha Morgan Catherine Ann Kabadian Shantanu Mukherjee Brita Marie Siepker Boris Nikhman Crawford Rohan Radhakrishna Reuben G. Muller Jill M. Silverman Kenneth Charles Piercy Elizabeth Nan Crowe Kamath Sergio Munoz-Sarmiento Monu Singh Cara M. Pomerantz Michael Benjamin Cubell Colette T. Katz Tara Tracey Nash Nisha Singh Noah P. Rosen Amy Elizabeth Davis Gary Matthew Kaufman Grace Huey-yng Ng Gavin Robert Skene Natasha Rossell Jaffe Jesse A. Devine Sonja Keenan Sebastian V. Niles Loran K. Smith Udo Michael Schneider

58 | February 2008 | NYSBA Journal Lisa Raine Sowers Kirsten Brooke Hensl Okor Uka Ogbu Erika Garcia Christine Trent Parker John Raymond Avant Holly R. Holecek Gabor B. Rado Caroline Virginie Gilbert Jonathan M. Passner Storey Kathleen Ann Kearon Haridimos V. Thravalos Marnie Lynn Glaeberman Julie Heaner Plavsic Kendra Lea Kelly Ehsanul Habib Robert J. Pless Lyda Marcela Tyburec OUT OF STATE Matthew Scott Klotsche A. Suzanne Hutchings Sabrina Mariano Glenn Arthur Yost Wynter Patrice Allen Robert Walker Lewis Lynsey A. Johnson Querubin THIRD DISTRICT Davina A. Amiri Melissa Marie McDonald Frances Kao Sebastian Riccardi Paul R. Kietzman Elizabeth Catherine Arens Albert Vincent Messina Naveen Kathuria Caroline-Suzanne Marie- Oksana Mihaychuk Ludd Jennifer Babe Christopher Lawrence Jennifer Kim Andree Richard Nathaniel David Berman FOURTH DISTRICT Miller Joon Lee Peter Jeremy Scherr Stefano Bini Barbara Lynne Morgan Letisha Marie Miller Allison Brooke Levy Elizabeth Wellman Ryan Jared Borgen Rodney Allistair Eric Leslie Lewis Sepper SEVENTH DISTRICT Fatema Asgar Caderbhoy Mohammed William Lim Anthony M. Sileo Richard Anthony Liza Suzanne Camellerie Dahlia Debra Olsher Chi-Yao Lin Christopher Keith Smith Calabrese Vincent A. Carron Carrie Beth Pearlman Robert Benton Love Kiran Soar Donrita Y. Cottrell Robert M. Cheverie Luisito Enriquez Puno Eugene Michael Lynch Vikram Subramanian Jeffrey P. DiPalma Soo-Hyun Cho George Anthony Christopher N. Malvone Ami Tanabe Grazina Myers Eunice Ryu Chung Richardson Sarah Suzanne Marcus Yi Tsao Steven John Scott George Meredith Cohen Scott Justin Saturn Kyana R. McCain Daniel Maurice Ulmer Kaija Clark Wadsworth Ari Nathaniel Cohler Seth C. Schechtman Trevor Brandt McCann David Ulmer Felipe Cousino EIGHTH DISTRICT Andrew E. Schrafel Catherine Ann McGivney Fernando Gava Verzoni Colin V. Croly Keliann Marie Elniski Gregory Spektor Shubha Mehrotra Sabrina Assayag Victor Richard Daniel Dorfman Kevin R. Talbot Christopher Charles Gerardo Elias Mejia Gregor Olaf Von Bonin Corinne Patricia Duvnjak Thaens Julie Christine Miller Anne Margaret Egan NINTH DISTRICT Karina Emmertsen Carolina Cecilia Torres Michelle Annmarie Wagstaff Peter Brogan Brandon Fail Paul J. Tramontano Morrison Jo-Ann Wallace Aaron M. Ginandes Kerry A. Finley Adrienne Wallace Altay Mustafayev Lin Wang Melissa Jill Glazer James Gerard Flood Ryan Willhite Lori Ann Nessel Elissa Breanne Wolf Michael Lawrence Grazio Rasha B. Foda Nicole Zuvich Antonio Ray Abello George Tatung Wu Jeffrey Steven Kahana John T. Fussell Ortiguera Lauren Patricia Yates Jane Lippman ELEVENTH DISTRICT Antonio Garbelini Jennifer Marcus Thomas Brennan Charles Christopher Cathleen Pringle Cassidy McGann Wai-Ying Chan Linda Carole Morris Douglas Cummings John Emmett Murphy Ting Geng Foundation Memorials Gisele Camielle Rosado Candace Green Hines Corey Adam Ruggiero Ronald L. Karben fitting and lasting tribute to a deceased lawyer can be Benjamin Emmanuel Brian Paul Kenneally Thwaites Jong Woo Kim A made through a memor ial contribution to The New Julie Hallowell Vulpesu Mindy Kim York Bar Foundation. This highly appropriate and meaningful Monique Warren Georgina Kracun gesture on the part of friends and associates will be felt and Meghan E. White Christian C. Lee Michael Robert Wood Cynthia Mbu-etonga appreciated by the family of the deceased. TENTH DISTRICT Eileen McNerney Contributions may be made to The New York Bar Sarah Ann Munro Jansen Paul Anderman- Foundation, One Elk Street, Albany, New York 12207, stating Hahn Gregory Noce Alexander I. Balsam Leslie Perez in whose memory it is made. An officer of the Foundation Damien Eric Bernache Christine E. will notify the family that a contribution has been made and Caryn Marie Bigus Polychroniades by whom, although the amount of the contribution will not be Zachary Peter Reibstein Jennifer Feeley Blackmore specified. Steven Michael Francine Susan Solomon Bundschuh Monica Courtney All lawyers in whose name contri butions are made will Trombley Melissa Ann Cavaliere be listed in a Foundation Memorial Book maintained at Jennifer Anne Coughlin Edo Velovic Salvatore P. DaVi Valerie A. Vilsaint the New York State Bar Center in Albany. In addition, the Rebecca Ruth Davis Aili Zhang names of deceased members in whose mem- Carla Alison Egan TWELFTH DISTRICT ory bequests or contributions in the sum of Angelo M. Ficarrotta Marka Soyini Belinfanti $1,000 or more are made will be permanent- Pooja A. Gadkar Oluwatoyin Abimbola Donato Gianturco Damola ly inscribed on a bronze plaque mounted Jesse Grasty Giulia Frasca in the Memorial Hall facing the handsome Jose Ricardo Guzman Judith Annmarie Harding courtyard at the Bar Center. Christine J. Hansen Opal Simone Hinds

NYSBA Journal | February 2008 | 59 NYSBABOOKS

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NYSBA Journal | February 2008 | 61 HEADQUARTERS STAFF EMAIL ADDRESSES THE NEW YORK BAR FOUNDATION

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62 | February 2008 | NYSBA Journal 2007-2008 OFFICERS MEMBERS OF THE HOUSE OF DELEGATES

KATHRYN GRANT MADIGAN FIRST DISTRICT Kamins, Barry Edmunds, David L., Jr. Aaron, Stewart D. Longo, Mark A. Embser, James T. President Abernethy, Samuel F. Romero, Manuel A. Evans, Lydia V. Binghamton † * Alcott, Mark H. Sunshine, Hon. Jeffrey S. Fisher, Cheryl Smith Alden, Steven M. Sunshine, Hon. Nancy T. * Freedman, Maryann Saccomando BERNICE K. LEBER Anello, Robert J. Szochet, Diana J. Gerstman, Sharon Stern Badner, Lisa Ray * Hassett, Paul Michael President-Elect THIRD DISTRICT Badway, Ernest Edward Ayers, James B. Lamantia, Stephen R. New York Barson, Alan D. Breen, Michael L. Manias, Giles P. Bartlett, Linda G. Casserly, Timothy E. McCarthy, Jeremiah J. JAMES B. AYERS Bienstock, Peter Cloonan, William N. McCarthy, Joseph V. Treasurer Blanchard, Kimberly S. Copps, Anne Reynolds Meyer, Harry G. Borsody, Robert P. Davidoff, Michael O’Donnell, Thomas M. Albany Boyers, Hon. Seymour Dolin, Thomas E. Porcellio, Sharon M. Brett, Barry J. Doyle, Hon. Cathryn M. Sconiers, Hon. Rose H. MICHAEL E. GETNICK Brown Spitzmueller, Janiece Farley, Susan E. Subjack, James P. Secretary Brown, Geraldine Reed Fernandez, Hermes Young, Oliver C. Brown, Peter Utica Gold, Majer H. NINTH DISTRICT Burns, Howard W., Jr. Greenberg, Henry M. Burke, Patrick T. † Campos-Galvan, Manuel Greenthal, John L. Byrne, Robert Lantry MARK H. ALCOTT Caraballo, Dolly Higgins, John Eric Campanaro, Patricia L. Immediate Past President Chambers, Hon. Cheryl E. Higgins, Patrick J. Casey, Bridget M. Cheng, Pui Chi New York Kelly, Matthew J. Dohn, Robert P. Chin, Sylvia Fung Kretser, Hon. Rachel Enea, Anthony J. Christian, Catherine A. Lally, Sean P. Fontana, Lucille A. Cohen, Carrie H. Liebman, Bennett M. Gordon Oliver, Arlene Antoinette VICE-PRESIDENTS Collazo, Ernest J. Lynch, Margaret Comard Gouz, Ronnie P. * Cometa, Angelo T. Meislahn, Harry P. Kranis, Michael D. FIRST DISTRICT Crespo, Louis Miranda, David P. Lagonia, Salvatore A. Davis, Tracee E. Moy, Lillian M. Markhoff, Michael S. Claire P. Gutekunst, New York Donoghue, Gail Netter, Miriam M. Marwell, John S. Susan B. Lindenauer, New York Draper, Thomas G., Jr. Perino, Justina Cintron * Miller, Henry G. Drayton, Joseph Michael Potter, James T. Murray, Conal E. Eppler, Klaus SECOND DISTRICT Powers, John K. † * Ostertag, Robert L. Finerty, Hon. Margaret J. Salkin, Prof. Patricia E. Sciortino, Sandra B. Barry Kamins, Brooklyn Fink, Rosalind S. Sandner, James R. Selinger, John * Forger, Alexander D. Schofield, Robert T., IV † * Standard, Kenneth G. Frank, Paul M. † * Tharp, Lorraine Power Thornhill, Herbert L., Jr. THIRD DISTRICT Fries, Richard S. Thornton, Timothy B. Van Scoyoc, Carol L. Gesinsky, Loren M. Hon. Rachel Kretser, Albany * Williams, David S. Wallach, Sherry Levin * Gillespie, S. Hazard * Yanas, John J. Welby, Thomas H. Grays, Taa R. FOURTH DISTRICT Wilson, Leroy, Jr. Gredd, Helen A. FOURTH DISTRICT Nicholas E. Tishler, Niskayuna Gross, Marjorie E. Breedlove, Brian H. TENTH DISTRICT Gutekunst, Claire P. Burke, J. David * Bracken, John P. Caffry, John W. Buonora, John L. FIFTH DISTRICT Haig, Robert L. Hariton, David P. Coffey, Peter V. Cartright, Valerie M. David M. Hayes, Syracuse Harris, Joel B. Cullum, James E. Castillo, Nelson A. Hoffman, Stephen D. Ferradino, Stephanie W. Chase, Dennis R. SIXTH DISTRICT * King, Henry L. Haelen, Joanne B. Clarke, Lance D. Kobak, James B., Jr. Rider, Mark M. Elder-Howell, Andrea M. David A. Tyler, Ithaca Kougasian, Peter M. Rodriguez, Patricia L. R. Fishberg, Gerard † * Krane, Steven C. Sterrett, Grace Franchina, Emily F. SEVENTH DISTRICT Kuntz, Dr. William F., II FIFTH DISTRICT Gann, Marc Larson, Wallace L., Jr. Gall, Erin P. Giorgio, Frank, Jr. David M. Schraver, Rochester † Leber, Bernice K. Getnick, Michael E. Gross, John H. Leo, Robert J. Gingold, Neil M. † * Levin, A. Thomas EIGHTH DISTRICT Lieberman, Ellen Greeley, Kristin B. Levy, Peter H. Sharon Stern Gerstman, Buffalo Lindenauer, Susan B. Hayes, David M. Luskin, Andrew J. * MacCrate, Robert Larose, Stuart J. Makofsky, Ellen G. Martin, Edwina Frances Longstreet, Ami S. Margolin, Linda U. INTH ISTRICT N D Mazzarelli, Hon. Angela M. McClusky, James P. Mihalick, Andrew J. John S. Marwell, Mount Kisco McEnroe, Diane Crosson Mitchell, Richard C. * Pruzansky, Joshua M. Miller, Michael Pellow, David M. Purcell, A. Craig * Rice, Thomas O. TENTH DISTRICT Millett, Eileen D. Peterson, Margaret Murphy Minkowitz, Martin Richardson, M. Catherine Robinson, Derrick J. John H. Gross, Hauppauge Moreland, Thomas H. Stanislaus-Fung, Karen Smolowitz, Barry M. Morril, Mark C. Steinberg, Harriette M. SIXTH DISTRICT Stempel, Vincent F., Jr. LEVENTH ISTRICT Nathanson, Eugene E D Cummings, Patricia A. Thompson, Charlene R. O’Neill, Paul J., Jr. Denton, Christopher Walsh, Owen B. Seymour W. James, Jr., Kew Gardens * Patterson, Hon. Robert P., Jr. Egan, Shirley K. Winkler, James R. Paul, Gerald G. Gorgos, Mark S. TWELFTH DISTRICT Reed, Thomas A. † Madigan, Kathryn Grant ELEVENTH DISTRICT Rifkin, Richard Marris, Karin Huntley Cohen, David Louis Steven E. Millon, Bronx Robertson, Edwin David May, Michael R. Dietz, John R. Rosenthal, Lesley Friedman Sheehan, Dennis P. Goldblum, A. Paul Rosner, Seth Smyk, Stephen D. Haskel, Jules J. MEMBERS-AT-LARGE OF THE Rothstein, Alan Tyler, David A. James, Seymour W., Jr. Russell, William T., Jr. Leinheardt, Wallace L. SEVENTH DISTRICT EXECUTIVE COMMITTEE * Seymour, Whitney North, Jr. Barney, Brian J. Lomuscio, Catherine Sherman, Carol R. Brown, T. Andrew Lonuzzi, John A. Vincent E. Doyle, III Sherwin, Peter J.W. Buholtz, Eileen E. Nashak, George J., Jr. Sigmond, Carol Ann David L. Edmunds, Jr. † * Buzard, A. Vincent Terranova, Arthur N. Silkenat, James R. Castellano, June M. Wimpfheimer, Steven Smith, Hon. George Bundy Hermes Fernandez Doyle, Hon. John D. TWELFTH DISTRICT Sonberg, Hon. Michael R. Michael Miller Lawrence, C. Bruce Chavez, Daniel M. Spelfogel, Evan J. Lightsey, Mary W. Friedberg, Alan B. David P. Miranda Steinberg, Lewis R. * Moore, James C. Millon, Steven E. Stenson, Lisa M. * Palermo, Anthony R. * Pfeifer, Maxwell S. Peter J.W. Sherwin Tesser, Lewis Reynolds, J. Thomas Schwartz, Roy J. Lauren J. Wachtler Wachtler, Lauren J. Schraver, David M. Stansel, Lynn Williams, Bryan R. Schultz, Jill K. Summer, Robert S. Stephen P. Younger Younger, Stephen P. Smith, Thomas G. Weinberger, Richard Zulack, John F. * Vigdor, Justin L. OUT-OF-STATE SECOND DISTRICT * Witmer, G. Robert, Jr. Cahn, Jeffrey Barton Adler, Roger B. EIGHTH DISTRICT * Fales, Haliburton, II Branda, Rose Ann C. Brady, Thomas C. Tilton, Samuel O. Cohn, Steven D. Doyle, Vincent E., III * Walsh, Lawrence E. Golinski, Paul A.

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

NYSBA Journal | February 2008 | 63 THE LEGAL WRITER BY GERALD LEBOVITS

Do’s, Don’ts, and Maybes: Legal Writing Punctuation — Part I

n six of the last seven columns, the Punctuation clarifies. Consider this Use periods, not question marks, Legal Writer covered legal writing’s classic example: “Woman without after indirect questions. Examples: “The Ido’s, don’ts, and maybes. The last her man is nothing.” Depending on judge asked me why wasn’t I ready for two columns discussed grammar. We how you punctuate, the sentence will trial.” “My client wanted to know why continue with seven punctuation issues have different meanings. Example 1: he paid the filing fees.” “She asked and, in the next two columns, eight “Woman: Without her, man is noth- whether I could argue the motion.” more. This three-part series addresses ing.” Example 2: “Woman, without her Use one period, not two, when periods, question marks, exclamation man, is nothing.” The punctuation the sentence ends in an abbreviation. points, colons, semicolons, parentheses, you use and where you put it will Incorrect: “I reached the courthouse brackets, commas, hyphens, quotation alter how readers will interpret what at 9:30 a.m..” Correct: “I reached the marks, apostrophes, dashes, slashes, you write. courthouse at 9:30 a.m.” If the sentence ellipses, and accent marks. Good punctuation makes you feel, ends in a question mark or an exclama- Punctuation refers to symbols that hear, and understand language. Bad tion point, use a period after the abbre- organize and give structure to writing. punctuation is confusing and off-put- viation. Examples: “How was your trip Punctuation lets you change the inflec- ting. to Washington, D.C.?” “Court begins tion of your voice and give meaning to 1. Periods. Three punctuation at 9:30 a.m.!” your words. marks end a sentence: periods, ques- Abbreviated American and British Punctuation helps speed up or slow tion marks, and exclamation points. weights and measures end in peri- down language. Example of speeding Lawyers don’t use enough periods. ods. Examples: “qt.” for “quart” and up language: “The associate won her Thoughts without periods are lengthy “pt.” for “pint.” Don’t put periods first trial today.” In this example, the and convoluted. after degrees and metric abbreviations. reader reaches the end of the sentence Use periods at the end of a declara- Examples: “C” for “Centigrade,” “cm” without stopping for any punctua- tive sentence. A declarative sentence for “centimeter,” “cms” for “centime- tion. The period tells you when to rest. states an argument, fact, or idea. It ters,” and “F” for “Fahrenheit.” Example of slowing down language: “The doesn’t require the reader to take action Put a period at the end of an abbre- associate, fresh out of law school, won or answer. Examples: “Some writers viated title, even if the title isn’t a her first trial today.” The commas in don’t know how to punctuate.” “If you true abbreviation. Example: “Ms.” Put a this example cause the reader to slow know how to punctuate, you’ll be seen period at the end of an abbreviated title, down twice before reaching the end of as a good writer.” even if the last letter of the abbreviated the sentence. Commas tell you when Use periods at the end of com- title wouldn’t end with a period were to breathe. mands. Examples: “Submit your briefs it unabbreviated. Incorrect: “Dr Smith.” Punctuation lets writers emphasize by Friday.” “Evacuate the courtroom (“Dr Smith” is correct in British usage.) some words and de-emphasize oth- quietly.” Correct: “Dr. Smith.” Other examples: ers. Example: “Mr. Roe — a profes- Use periods at the end of a cita- “C.P.A.” “D.D.S.” “Hon.” “Jr.” “M.D.” sional and diligent attorney — argued tion before a new sentence. Incorrect: “Mr.” “Ph.D.” “Sen.” the motion.” Or: “Mr. Roe argued the “Landlord v. Tenant, 100 A.D.3d 21, Add no space between periods motion. (He’s a professional and dili- 22, 111 N.Y.S.2d 41, 42 (4th Dep’t when using initials. Incorrect: “Mary gent attorney.)” 2007) In Tenant, the court applied the Smith, J. D.” Correct: “Mary Smith, Punctuation tells readers when to rule against perpetuities.” Correct: J.D.” Incorrect: “J. O. Doe.” Correct: feel emotion. Example: “Wonderful!” “Landlord v. Tenant, 100 A.D.3d 21, 22, “J.O. Doe.” Exception: Use spaces if Punctuation tells readers when to 111 N.Y.S.2d 41, 42 (4th Dep’t 2007). the person prefers them: “John D. B. pay attention. Example: “When will he In Tenant, the court applied the rule Jones.” be released from jail?” against perpetuities.” CONTINUED ON PAGE 55

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