Judith S. Kaye

NOVEMBER/DECEMBER 2008 VOL. 80 | NO. 9 JournalNEW YORK STATE BAR ASSOCIATION

Judith S. Kaye

We take the opportunity to recognize Chief Also in this Issue Judge Judith Kaye with a tribute to her many Medical Malpractice and accomplishments and the imprint she leaves the Modern-Day Athlete upon the Court. 2008 Article and Author Index by Skip Card

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

PUBLISHER Patricia K. Bucklin Executive Director

NYSBA PRODUCTION STAFF ASSISTANT EDITOR Joan Fucillo DESIGN Lori Herzing Erin Corcoran EDITORIAL OFFICES One Elk Street Albany, NY 12207 (518) 463-3200 FAX (518) 463-8844 www.nysba.org

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EUGENE C. GERHART (1912 – 2007) Editor-in-Chief, 1961–1998 CONTENTS NOVEMBER/DECEMBER 2008 JUDITH S. KAYE BY SKIP CARD 10

18 Smith, 1984 BY GARY HOPPE AND DARREN O’CONNOR 20 Immuno AG., 1989–1991 BY LAURA JOHNSON 22 Jacob, 1995 DEPARTMENTS BY ROBERTA A. KAPLAN 5 President’s Message 24 Jamaica Public Service Co., 1998 8 CLE Seminar Schedule BY JEREMY R. FEINBERG 32 Burden of Proof BY DAVID PAUL HOROWITZ 26 Kihl, 1999, and Its Progeny 44 Book Review BY JENNIFER G. SCHECTER BY ALBERT ROSENBLATT 45 Editor’s Note Campaign for Fiscal Equity, 2003 30 46 Index to Articles 2008 BY MATTHEW J. MORRIS 48 Index to Authors 2008 34 A Whole Different Ballgame . . . Or Is It? 51 Language Tips Medical Malpractice and the BY GERTRUDE BLOCK Modern-Day Athlete 52 Attorney Professionalism Forum BY TARA R. DI LUCA 54 New Members Welcomed 58 Index to Advertisers 58 Classified Notices 63 2008–2009 Officers 64 The Legal Writer BY GERALD LEBOVITS

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The Journal welcomes articles from members of the legal profession on subjects of interest to New York State lawyers. Views expressed in articles or letters published are the authors’ only and are not to be attributed to the Journal, its editors or the Association unless expressly so stated. Authors are responsible for the correctness of all citations and quotations. Contact the editor-in-chief or managing editor for submission guidelines. Material accepted by the Association may be published or made available through print, film, electronically and/or other media. Copyright © 2008 by the New York State Bar Association. The Journal ((ISSN 1529-3769 (print), ISSN 1934-2020 (online)), official publication of the New York State Bar Association, One Elk Street, Albany, NY 12207, is issued nine times each year, as follows: January, February, March/April, May, June, July/ August, September, October, November/December. Single copies $20. Periodical postage paid at Albany, NY and additional mailing offices. POSTMASTER: Send address changes per USPS edict to: One Elk Street, Albany, NY 12207.

NYSBA Journal | November/December 2008 | 3

PRESIDENT’S MESSAGE BERNICE K. LEBER Honoring 25 Years of Devoted Public Service

ome jurists stand in a league of tory death penalty for killers already their own. That is why we are serving a life term of imprisonment Shonoring Chief Judge Judith S. was cruel and unusual punishment. Kaye with this special issue of the Former clerks Gary Hoppe and Darren Journal, in which we pay tribute to O’Connor relate how Judge Kaye one of New York’s most distinguished methodically addressed every factual public servants. To celebrate her and legal issue in that case, ultimately remarkable service as the top judge in penning a majority decision that with- New York, we take a look back at some out passion or an agenda applied the of her landmark decisions. rule of law, holding that New York’s With Judge Kaye having penned 533 mandatory death penalty was uncon- majority decisions and 83 concurring or stitutional because it failed to account dissenting opinions over the course of for individual circumstances. This deci- Judge Kaye also wrote an average of her 25-year career on New York’s Court sion demonstrates Judge Kaye’s ability two opinions each month and reviewed of Appeals, you can be certain that sin- to decide a case based on the law and countless civil and criminal motions gling out her most significant writings not on what is popular, the hallmark of for leave to appeal. She left an indelible is no easy task. Given the breadth of a fair and impartial jurist. mark on New York’s law, while at the her work – filling volume upon volume In another article, former clerk same time creating and implement- of New York Reports – we also do not Roberta Kaplan convincingly makes ing reforms which have caused us to have enough space in a single Journal the argument that judges are often re-think and re-work how we handle issue possibly to highlight and pay trib- remembered most for their powerful domestic violence, drug abuse, divorce ute to all of the Judge’s most prominent dissents, which often over time become and child custody among many other decisions. To help us narrow the field, the majority view. Kaplan uses Judge difficult problems. Many might not be we asked some of her former law clerks Kaye’s recent dissent in Hernandez v. aware that some years ago, Judge Kaye to select what are, in their opinion, Robles, in which she labeled as “an declined the opportunity to be consid- some of Judge Kaye’s most important unfortunate misstep” the Court’s plu- ered for a position on the United States decisions. rality decision denying the right of Supreme Court – a lifetime appoint- The decisions described in these arti- same-sex couples to marry in New ment – to continue in service as our cles reveal that Judge Kaye consistently York, as a gateway to discuss another Chief Judge, a post that she must now found her voice in upholding the rule of Judge Kaye’s most compassionate leave due to mandatory retirement. of law and fundamental fairness in the decisions, In re Jacob. In that land- Many who have sought to become treatment of individual rights particu- mark decision, the Court held that judges are often asked why they desire larly with respect to principles of due New York’s Domestic Relations Law the task. After all, the hours are long, process – along with a healthy dose of permitted the unmarried gay or les- the work somewhat solitary, and the judicial restraint added for good mea- bian partner of a biological parent to compensation plainly not commensu- sure. become the child’s second parent by rate with the responsibility. We know Thus, in People v. Santorelli, which adoption. Judge Kaye has long been a that Judge Kaye leaves the Court of addressed a prosecutor’s duty to turn strong advocate for children and chil- Appeals, after a quarter century of over certain information to the defense, dren’s rights and, in this regard, these service due to mandatory retirement, our Chief Judge reinforced the impor- two decisions reinforce the positive knowing with certainty that her deci- tance of fair play, emphasizing that notion that a family means different sions have touched the lives of others, prosecutorial responsibility demands things to different people, and should and will certainly continue to have a that the search for truth trumps the be defined more inclusively than juris- profound ripple effect on the law, the pursuit of convictions. prudence recognized previously. In judicial system and our profession. ■ In one of Judge Kaye’s earliest deci- this regard, Judge Kaye has been a true sions – that of People v. Smith – the visionary and her decisions timeless in BERNICE K. LEBER can be reached at Court considered whether a manda- their scope. [email protected].

NYSBA Journal | November/December 2008 | 5 NYSBA LPM: Solo and Small Firm Resource Center

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6 | November/December 2008 | NYSBA Journal

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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 www.nysba.org/CLE (Note: As a NYSBA member, you’ll receive a substantial discount) We take the opportunity in this issue to recognize Chief Judge Judith Kaye’s 25 years at the Court of Appeals (15 as its chief judge) with a tribute to her many accomplishments and the imprint she will leave upon her retirement from the bench. What better way, we thought, than to discuss her opinions in some of the major Court decisions in the past two-and-a-half decades? In the following pages, we present a series of articles on some of the more significant cases decided during Judge Kaye’s tenure. We asked Judge Kaye’s former law clerks, who worked with her on these cases, to write brief summaries of the issues involved and to discuss the future impact of those decisions. Freelance writer SKIP CARD ([email protected]) is a copy editor for the New York Post and author of the hiking guidebook Take a Hike: New York City. He has written for the Journal on topics ranging from baseball to environ- mentalism. Judith S. Kaye By Skip Card

Chief Judge Judith S. Kaye paused while showing a visitor around her Park Avenue chambers, a warren of memorabilia-filled rooms that must be stripped of a quarter century of accumulated history when Kaye retires later this year. For a brief moment, the weight of the looming task seemed to visibly stoop her shoulders. “Think about disassembling that,” Kaye said as she stood before an office wall covered floor to ceiling by

snapshots and souvenirs. Nearby walls are plastered with artwork, framed certificates, formal photographs and clever New Yorker cartoons. “This is sort of my life, you know? I can’t imagine taking this apart.”

NYSBA Journal | November/December 2008 | 11 The task is complicat- Path to the Court ed not only by the length Judge Kaye, born Judith Ann of Kaye’s tenure – 25 years Smith, was raised in the vil- on the New York Court of lage of Monticello, N.Y., the Appeals, including 15 years first child born to Polish as Chief Judge, the longest immigrants who opened a such tenure in state history dry-goods store when Kaye – but also by her remark- was six. (Designer Ralph able list of reforms and firsts. Lauren told Kaye he bought Governor David Paterson, his first pair of jeans in the in his inauguration speech, store.) Smart enough to skip called Kaye “the Chief Judge two grades, Kaye entered who I believe will go down in Barnard College in 1954 at history as one of the greatest the age of 15. She majored in Chief Judges this state has Latin American studies, but ever had.” her aim was to be a newspa- Yet, amid the accolades per reporter. and proud memories, Kaye is “I wanted to change the leaving her job amid a sense world as a reporter,” Kaye of failure. Her long quest to recalled. “I wanted to do raise salaries of New York’s something great. I still do.” judges remains stalled, and Judith S. Kaye, 1970. Dreams of high-profile judges’ pay has not increased journalism were dashed after since 1999. In April, a frustrated Kaye filed suit, charging graduation when no major East Coast newspaper would that state politics has denied New York judges their con- hire a woman. stitutional right to an “adequate” salary. “It was not just a dead end, it was an impossible “I never thought, in my 25th year on the Court of beginning. It was very hard to get a foothold in the field.” Appeals, that I would be stuck in the mud on the salary She finally scored a job at the Hudson Dispatch in Union issue. It kind of has changed everything else. Soured it,” City, N.J., but was unable to do anything more world- Kaye said. “It’s devastating. Just devastating. It’s just like, changing than cover weddings and teas for the newspa- ‘Other than that, Mrs. Lincoln, did you enjoy the show?’ per’s society page. Really. To have the judges so deservedly upset, it’s just Sensing futility, Kaye began attending night classes unthinkable. Horrible.” at New York University School of Law, “never with the Kaye’s regret is understandable. Yet, any impartial serious intention of being a lawyer, just being a news review of her legal career finds far more successes than reporter,” she said. However, her interest soon shifted failures. from journalism to law. Kaye was a pioneering litigator whose skill and per- “What I was doing at night was much more interest- severance in a male-dominated profession blazed a trail ing than what I was doing in the daytime,” Kaye recalled. for future generations of women. Her 1983 appointment She switched her career target to law and transferred to to New York’s Court of Appeals and, 10 years later, to NYU’s day program, but her journalism training proved the position of Chief Judge were historic firsts. Under her valuable in her new path. executive leadership, New York created groundbreaking “Just the ability to write an English sentence clearly community courts and reformed its exemption-plagued must have distinguished me, because I did well in law jury system. school,” she said. “I learned to say things in English, to use Meanwhile, Kaye managed to stay fit, have three semicolons sparingly, to state my thoughts simply . . . to children, enjoy a long and happy marriage, and win the put the who, what, when and why first instead of last.” respect and admiration of countless colleagues. Kaye graduated cum laude from NYU law school in “It’s hard to imagine anyone doing much more,” said 1962, one of 10 women in a class of roughly 300. She Steven Krane, a partner at Proskauer Rose who served turned down her first job offer because the salary would as Judge Kaye’s law clerk in 1984–1985. “And she’s not have been lower than that of her male counterparts, and done. She’s just retiring from this phase. She’s got a lot instead joined Sullivan & Cromwell as an associate earn- left.” ing equal pay. There she met Stephen Rackow Kaye, the Kaye is “a wonderful, caring, warm person who attorney who would become her husband in 1964. (The is honest and straightforward,” Krane said. “She’s a two would remain happily together until his death on remarkable human being in every respect.” October 30, 2006.)

12 | November/December 2008 | NYSBA Journal Both Kayes left Sullivan & Cromwell when their rela- “When all the lights went down and the cameras were tionship blossomed. Judith Kaye went to work for IBM turned off and everybody went, I remember saying to my in Armonk, which “kicked me out in the seventh month husband, ‘I’m not cooking dinner tonight,’” Kaye said. of my pregnancy.” She was hired temporarily to assist Apparently, one reporter was still listening. Russell Niles, dean of the NYU law school, update his “That was in the Times. My kids were angry. They said, real-property casebook. (“Yuck,” she recalls.) But then ‘You never cook dinner.’” Niles “got elected president of the city bar association, Cooking “doesn’t give me a lot of pleasure,” Kaye and we had three great years together, during which admitted. “We do a lot of takeout.” Stephen and I had three children.” Her family efficiently in place, Kaye returned to pri- Court Service vate law practice in 1969 with Olwine, Connelly, Chase, Kaye joined the state’s high Court in September 1983. The O’Donnell & Weyher and began building a reputation arrival of a woman forced a few changes, including the as a strong litigator, mostly in federal courts. She also installation of locks on some bathroom doors. By 1986, involved herself in the bar association, the Legal Aid mandatory retirement had pushed out four other associ- Society and pro bono matters. By today’s standards, ate justices, making Kaye the third most senior jurist on Kaye was networking – although that term had yet to be the court. coined. Kaye quickly earned a reputation as a jurist who let “It was all quite accidental,” Kaye said. “I didn’t common sense and fairness guide her decisions, particu- plan any of this. It just evolved very nicely.” In 1975, she larly in areas in which she believed evolving social norms became her firm’s first female partner. had outpaced statute. Timing also played a role in her success. By the early “You start inevitably as a judge with some human 1980s, when calls for appointment of more women to top instinct about a set of facts, then you bring to it all your judicial positions grew louder, Kaye was one of the few legal knowledge. And the last step has got to be your women attorneys with the broad experience and contacts common sense,” Kaye explained. “You do attempt to be to be a serious candidate for the bench. sure that what you’re deciding and what you’re writing “There was a moment in time when there was an is sensible.” interest in appointing women. Suddenly everyone woke From those who disagreed with her opinions, Kaye up to the fact that we were around, too.” also began earning labels such as “liberal” and “activist” Kaye initially thought she might be appointed a feder- – terms she feels have lost any real impact. al judge, since most of her private legal work had been in federal court. Then, she returned one day to her office to find the application packet from New York’s Commission on Judicial Nomination sitting on her desk. “I had never thought of the State of New York. I completed the application, and suddenly I was a candidate,” she said. “The governor wanted to appoint a woman. There weren’t that many women who had been active in litigation.” Opportunity finally knocked in 1983, when the retirement of Judge Jacob J. Fuchsberg created a vacancy on New York’s Court of Appeals. Kaye’s name was put forth, but not without controversy; the Women’s Bar Association of the State of New York rated Kaye “not qualified.” “I don’t dwell on that,” she said. “We’ve made friends.” After a pause, she added, “They were wrong.” Governor Mario Cuomo made history when he nominated Kaye for New York’s all-male Court of Appeals. The first woman to serve on the state’s highest court was introduced at an afternoon press conference at the World Trade Center. Her husband hurriedly rounded up their young children to attend the announcement. (When he discovered one son wasn’t wearing a tie, Mr. Kaye paid $20 to buy the tie worn by a stranger in an elevator.) Chief Judge Kaye, at the Association’s Annual Meeting, 2006.

NYSBA Journal | November/December 2008 | 13 “What does that mean any more, a ‘conservative’ Reformer Chief Judge judge or an ‘activist’ judge, other than a person you agree In November 1992, New York’s Court of Appeals was with or a person you disagree with? That really is all it thrown into turmoil. Chief Judge Sol Wachtler was arrest- means,” she said. “I hate these labels. You have to be care- ed by FBI agents on suspicion of having sent threatening ful with these labels. They don’t help the discussion.” letters to his former mistress and harassing her teenage In 1984, still in her first year on the bench, Kaye wrote daughter. Claiming mental incapacitation due to bipolar the opinion for the four-judge majority in People v. Smith, illness, Wachtler resigned his position as Chief Judge, which struck down as unconstitutional a mandatory pleaded guilty to a felony charge and spent 11 months in death penalty for Lemuel Smith, an inmate already serv- federal prison. ing a life sentence who had murdered a prison guard. On February 22, 1993, Governor Cuomo nominated Kaye’s decision noted that mandatory death sen- Kaye to replace Wachtler as Chief Judge. After unani- tences could not take into account mitigating factors, and mous state Senate approval, Kaye was sworn in a month therefore did not follow guidelines imposed by the U.S. later. Now, in addition to being a full-time jurist, she also Supreme Court. “Thus,” wrote Kaye, “any death penalty shouldered the duties of chief executive officer for New statute which did not provide for consideration by the York’s courts. sentencer of all relevant individual circumstances would She soon started to shake things up. be incompatible with the commands of the Eighth and “I think it’s part of my job to make the third branch of Fourteenth Amendments.” As a result, Smith avoided the government work better,” Kaye said. “And ‘work better’ electric chair. means more effective. More efficient dispositions. How Many years later, Kaye was on the losing side in do we do a better job serving the public?” Alison D. v. Virginia M., a child-custody case involving She began by reforming New York’s jury system, a same-sex couple that had split up. The majority ruled pushing to abolish automatic exemptions (Kaye herself the child’s biological mother did not have to yield visita- has been called for jury duty three times) and reduce the tion rights to her former lesbian lover, even though both length of jurors’ service. Her success was encouraging. women had been raising the child together for years. “When you move the mountain a millimeter, it’s very “I saw that as just hard on the child,” Kaye said. “I intoxicating,” Kaye said. “You start to feel that maybe thought it was wrong to deny visitation, that we should you can make things better.” have been looking at the issue from the child’s interest.” Many of Kaye’s colleagues believe she has been wildly But four years later, in 1995, the effect of that ruling successful. was softened by In re Jacob, in which the Court recog- “I have known most of her predecessors as Chief nized adoption rights of homosexual couples. Kaye Judge and like them well. But I truly believe she has been wrote the majority opinion in which she argued that the best Chief Judge. She attacked problems that had lain prohibiting adoptions by same-sex couples “would dormant with grace and with skill,” said longtime attor- mean that the thousands of New York children actually ney Henry G. Miller, past president of the New York State being raised in homes headed by two unmarried per- Bar Association and a senior partner at Clark, Gagliardi & sons could have only one legal parent, not the two who Miller in White Plains. want them.” In the matter of jury reform, “what she brought was “Sometimes when I’m in courthouses, that’s the one sensitivity to the viewpoint of the jurors,” Miller said. “She decision people ever single out and come up and say tried to make it more sensible and less intrusive to them.” what a wonderful opinion that was,” Kaye said. The no- Kaye next began instituting “problem-solving courts,” visitation ruling from Alison D. v. Virginia M. still stands, beginning in 1993 with the Midtown Community Court. “but at least now there can be an adoption.” There, crimes such as prostitution, unlicensed vending, More recently, in 2006, Kaye wrote the minority opin- graffiti, shoplifting and vandalism are often punished ion when a Court of Appeals plurality held New York’s with community service rather than jail time. The court same-sex couples did not have the right to marry. Her also provides on-site services such as drug treatment, dissent predicted that “future generations will look back mental health counseling and job training. on today’s decision as an unfortunate misstep.” That concept was expanded with the addition of drug “I think I was right,” Kaye said. “And I think ultimate- courts and, later, domestic violence courts. All aim to deal ly that will be the law. I’m sad that it’s a dissent.” with crime by attacking its root causes, typically through If, in hindsight, Kaye regrets any of her rulings, she treatment and counseling rather than jail sentences. won’t say. Those courts aren’t universally popular (“That is “Can’t go there,” she explained. “When I pick up a where people furrow their brow about treading on some- decision of mine, I always want to reword something. I one else’s turf,” Kaye said), but the concept has been wish I could just fix it up a little more. But no, I don’t feel copied by other states and hailed by many as models of uneasy about anything.” judicial innovation.

14 | November/December 2008 | NYSBA Journal

“I never think about what I’m doing as making policy. Today, as Kaye faces her 70th birthday and the I think about it as looking at our dockets, figuring out accompanying mandatory retirement from the Court of how we can address problems and then bringing people Appeals, she feels both nervous and excited. She looks together to do it. Is that making policy? I don’t think so. I forward “to doing something constructive and inventing think it’s administering the court system,” she said. another life,” she said. “We have thousands – tens of thousands, hundreds of “I never like to use the word ‘retirement.’ I prefer thousands – of, for example, low-level criminal cases with ‘juncture,’” she said. “I’ll stop being a judge, which I’ve drug abusers who start when they’re teenagers. We have been for 25 years. People will stop answering my calls.” foot-long rap sheets. What are we supposed to do? Are She said she plans to spend more time with her three we just supposed to mill them through the system time grown children and “seven of the greatest grandchildren after time? Why is that a good idea?” on Earth.” Her health is excellent; she often begins her Instead, Kaye said she wants “to see if we can do day with a 5 a.m. workout at Reebok Sports Club near her something to keep them from coming back all the time. Upper West Side home or a three-mile run in Central Park. Don’t you think that makes sense? I don’t think of that as She has subscriber tickets to the Metropolitan Opera. She policy-making. That’s judicial leadership.” believes her greatest accomplishment is “yet to come.” Recent statistics showing a record number of people in “Some days I can’t imagine leaving. Other days, con- U.S. prisons left Kaye shaking her head in disbelief. sidering my health and vigor, I think it’s right to go on to “My first reaction was how sad it is that we incarcerate something else and give somebody else a chance to lead probably more people than any other civilized nation. My the judiciary.” reaction was to think of the If only she didn’t have to clean out those chambers. ■ young people, especially young families, who are broken up forever. Young people turned from a pos- I never like to use sibly constructive life to a life of crime, because that’s the word ‘retirement.’ what they learn in prison. “That’s exactly what I prefer ‘juncture.’ I’m talking about with some of these initiatives. Maybe we can reach some people. We’re spending so much time and money on prosecuting them. Maybe we can help to turn their lives around.” Kaye said she is not immune to her critics (“You shouldn’t be a judge and have a thick skin. Judges need to feel things,” she said), but she puts the nay- sayers in perspective. “As soon as you touch anything, the critics come out from every place you can imagine. The critics are unbelievable. It’s, ‘Everything stinks. Don’t change a thing.’ That’s the mantra. As soon as you touch anything, it’s ‘Oh, there she goes again,’” she said. Chief Judge Kaye, at the President’s Dinner, 2008.

16 | November/December 2008 | NYSBA Journal

HONORABLE JUDITH S. KAYE

Smith, 1984

By Gary Hoppe and Darren O’Connor

ithin months of her appoint- the sentences purported to be consecu- was available in no other situation.8 If ment, then-Associate Judge tive, they merged by operation of law one accepts the legitimacy of the death Judith Kaye assumed a at the time to a single term of 25 years penalty, as had the state Legislature W 6 grave responsibility – announcing the to life in prison. and the governor, it would be difficult Court’s judgment on the life or death Lemuel Smith’s incarceration did to imagine a better candidate than of a horrible man and casting the not rehabilitate him. On May 15, 1981, Lemuel Smith. Judge Albert Rosenblatt deciding vote as to the validity of a Correction Officer Donna Payant was sentenced Smith to death on June 10, duly enacted and very narrow capital reported missing while attending to 1983.9 Less than three months later, punishment statute.1 Her approach to her normal duties at Green Haven Judith Kaye took her seat on the Court that task served as an invaluable les- Correctional Facility, a maximum secu- of Appeals. son to her clerks and would answer rity prison. Officers discovered her Smith appealed directly to the Court the most entrenched skeptic of judicial body the next morning among trash in of Appeals, which had the jurisdiction objectivity. a prison dumpster. She had been stran- and obligation to review the facts as Lemuel Smith left state prison in gled. A massive investigation pointed well as the law. Judge Kaye would October 1976 on parole for a violent to Smith as the killer, and a Dutchess leave nothing without detailed scru- offense. Weeks later, on November 24, County jury convicted him.7 tiny. The voluminous trial transcript 1976, he stabbed and slit the throats The Penal Law at the time defined would be read, the exhibits would of Robert Hedderman and Margaret first-degree murder as an intentional be examined; the evidentiary rulings Byron at a religious shop in Albany, murder committed by an adult while would be reviewed; and the legal prec- killing both people.2 Over the next nine serving a life sentence or one with a edent would be thoroughly under- months, he continued his rampage of maximum of life and a minimum of stood. Mindful of the gruesome nature rape, murder and mutilation. Police ar- at least 15 years. On a conviction for of the crime, Judge Kaye took steps rested him on August 20, 1977, after he first-degree murder, the court was obli- to assure that the natural emotion- kidnapped 18-year-old Marianne Mag- gated to impose a death sentence, and al response against the killer would gio from a law office and raped her.3 by 1981 the death penalty in New York not negatively impact the factual and During the prosecution for the Maggio attack, in the course of an insan- GARY HOPPE ([email protected]) is a partner at Twomey, Hoppe & Gallanty LLP, in New York City. ity defense, Smith incriminated him- He earned a B.A. from SUNY College at Oswego and his law degree from Harvard Law School. He self in the Hedderman-Byron murders served as a clerk to Judge Kaye from 1983 to 1984. and others.4 Juries found Smith guilty of both the Maggio and Hedderman- DARREN O’CONNOR ([email protected]) is Deputy Counsel with the New York State Byron crimes, and the courts sentenced Police Office of Counsel. He is a graduate of Fordham Law School. He served as a clerk to Judge Smith to three consecutive sentences of Kaye from 1983 to 1985. 25 years to life imprisonment.5 Though

18 | November/December 2008 | NYSBA Journal legal evaluation of the case. Of course, these rulings that it was not deciding sympathy, but because Judge Kaye this close attention guarded against a whether the Constitution forbade a and her colleagues dispassionately and wrongful execution. But also critical to mandatory death penalty for a murder without agenda applied the rule of Judge Kaye was avoiding a mistaken committed by a life-term inmate; it had law. According to information pub- invalidation of a presumptively con- never been faced with such a case. The lished by the Department of Correc- stitutional legislative enactment, par- question, then, was whether the ratio- tional Services, Smith will not even be ticularly where the interests of Smith’s nale of the Supreme Court in issuing eligible for parole until February 19, many victims or their families, and of these rulings applied in the life-term 2029, at age 88. the public in general, ran so deep. inmate situation. In the aftermath of the decision, The factual review proved most If a person is in prison forever, what many unhappy New Yorkers harshly time consuming. The circumstantial penalty other than death could deter and personally criticized Judge Kaye, evidence demonstrated that Smith had him or her from killing? One prob- some in forms too vile to mention. But the means and opportunity to strangle lem with the argument suggested by even in her first year, Judge Kaye was Officer Payant in the chaplain’s office, this question was that Smith was not never deprived of the ability to have place her body in a large drum, and necessarily in prison forever. Because fun at work and, as her clerks well empty it into a trash dumpster. But of the merger of the three sentences, know, would face the most serious no witness had seen the murder, and he was eligible for parole in 2003. An and weighty tasks with good humor. fingerprint tests and forensic analysis additional sentence could lengthen his She enjoyed telling of one criticism of of hair and other evidence were incon- minimum prison term. the Smith decision, by her hairdresser, clusive. Significantly, though, medical Further, while the question raised a who informed her that he was in favor experts detected human bite marks on cogent argument that a death penalty of the death penalty, “especially in Officer Payant’s chest. They matched should be a possible sentence in such a criminal cases.” Whatever breadth the these marks to a model of Smith’s case, it carried much less force when death penalty assumes in the future, it teeth, and also to a bite wound Smith advanced to justify a mandatory death is unlikely to be applied with the fre- inflicted on another murder victim, penalty. After all, even a mandatory quency desired by that gentleman. ■ Marilee Wilson, in August 1977. The death penalty, in the eyes of a murder- defense attempt to rebut this strong er before the crime, can only be a possi- 1. People v. Smith, 63 N.Y.2d 41, 479 N.Y.S.2d 706 (1984), cert. denied, 469 U.S. 1227 (1985). evidence was unavailing, and there bility because, among other outcomes, 2. People v. Smith, 59 N.Y.2d 156, 464 N.Y.S.2d 399 was no doubt that Lemuel Smith killed the killer may not be apprehended. (1983). Donna Payant. The charges would not Was a mandatory death penalty jus- 3. People v. Smith, 77 A.D.2d 712, 430 N.Y.S.2d 713 be dismissed. tified because the crime was so nar- (3d Dep’t 1980). Marianne Maggio later brought an action against New York State alleging negligent Nor would a new trial be ordered. rowly defined that no other circum- supervision of Lemuel Smith’s parole. See Maggio Judge Kaye carefully proceeded stances could conceivably be offered v. State of N.Y., 88 A.D.2d 1087, 452 N.Y.S.2d 719 (3d through each challenged evidentiary in mitigation? This question was fair, Dep’t 1982). ruling and determined, among other but Judge Kaye answered that the stat- 4. See Smith, 77 A.D.2d 712; Smith, 59 N.Y.2d 156. conclusions, that the bite mark evi- ute could not and did not cover the 5. Id. 6. Smith, 63 N.Y.2d 41. dence was scientifically sound and wide variety of circumstances unique 7. People v. Smith, 117 Misc. 2d 737, 459 N.Y.S.2d 13 admissible, and that the trial court to each situation and person. 528 (Sup. Ct., Dutchess Co. 1980). properly rejected a post-verdict chal- Cognizant that mitigating circum- 8. 1974 N.Y. Laws ch. 367 § 2 (adding Penal Law lenge to the testimony of another pris- stances, in the case of Lemuel Smith, § 60.06); see also People v. Davis, 43 N.Y.2d 17, 400 on inmate about Smith’s incriminating were likely absent, the Attorney General N.Y.S.2d 735 (1977), cert. denied, 435 U.S. 998 (1978). statements.10 asked the Court to treat the statute as 9. Smith, 63 N.Y.2d 41. 10. Id. Smith’s defense team submitted an interest- Turning to the constitutional chal- calling for such a consideration and to ing argument about the comparison of the Payant lenge, Judge Kaye studied the various remit for a mitigation hearing. Judge and Wilson bite marks. It claimed that the evidence opinions of the Supreme Court, from Kaye could not accept this argument demonstrated prior bad acts (the murder of Marilee 11 Wilson) and could have been avoided if the prose- Furman v. Georgia through Eddings because it would have required the cution applied for an order compelling Smith to bite v. Oklahoma,12 to determine whether Court to rewrite the statute.14 into his own skin, thereby allowing a comparison a mandatory death penalty was cruel Three years after the decision, the without disclosing the prior bad act evidence. Had such an order been sought and issued, a challenge and unusual even if imposed on a Supreme Court agreed with Judge to it would doubtless have been leveled. killer serving a life term of imprison- Kaye when it issued a six to three rul- 11. 408 U.S. 238 (1972). ment. Those cases found that a sen- ing in a case striking down Nevada’s 12. 455 U.S. 104 (1982). tence of death could not be imposed mandatory death penalty for lifers 13. See Smith, 63 N.Y.2d 41. without allowing for the consideration who kill.15 14. Id. of mitigating circumstances. However, Lemuel Smith was allowed to live, 15. Sumner v. Shuman, 483 U.S. 66 (1987). the Supreme Court had often stated in not because he earned an ounce of

NYSBA Journal | November/December 2008 | 19 HONORABLE JUDITH S. KAYE

Immuno AG., 1989–1991 By Laura Johnson

mmuno AG. v. Moor-Jankowski for hepatitis research, that resulted in opinion specifically focused on letters was not just a decision, it was a Immuno’s libel suit. to the editor as vehicles for members Isaga.1 By the time this libel case Then-Judge Kaye, a former jour- of the public to voice opinions and first reached the New York Court of nalist herself, wrote for the Court in participate in debate on matters of con- Appeals, a multinational corporation both of its decisions upholding the cern to them. Given that function, she was pitted against a single remaining Appellate Division, First Department’s wrote, “the common expectation of a defendant, Dr. Jan Moor-Jankowski, dismissal of the complaint against letter to the editor is . . . for the expres- the other seven defendants having Moor-Jankowski. In addition to rais- sion of individual opinion,”7 and noth- settled with it earlier for “substantial ing issues concerning the proper scope ing in the allegedly defamatory letter sums.”2 Moor-Jankowski prevailed, of protection for journalistic freedom would have led readers to view it as but it took him over seven years, legal to publish letters to the editor, the fact rather than protected opinion. expenses of more than $1 million, and case highlighted another area in which Just a few months later, however, the a second trip to the Court of Appeals Judge Kaye has made her mark on the Supreme Court clarified in Milkovich v. after the United States Supreme Court Court: adherence to the New York State Lorain Journal Co.8 that there is no sepa- vacated the original decision in his Constitution when it accords greater rate First Amendment privilege for favor.3 protection than the federal Constitution opinion per se; even if labeled “opin- Dr. Moor-Jankowski’s determina- to the citizens of New York. ion,” allegedly defamatory statements tion was apparently characteristic of Relying on the dictum in Gertz v. must be analyzed to determine wheth- him. Internationally known for his Robert Welch, Inc.5 that “[u]nder the er they contain or can reasonably be work in primatology and hematol- First Amendment there is no such thing construed to imply an assertion of fact, ogy, he joined the Polish resistance as as a false idea,” which had been widely which might be actionable if false. The a teenager and was wounded in the interpreted as creating categorical pro- Supreme Court vacated and remanded Warsaw uprising; eventually he was tection for “opinion,” the Court ini- Immuno I to the Court for further con- imprisoned by the Germans and later tially held that the comments Immuno sideration in light of Milkovich.9 the Soviets. He escaped to Switzerland, alleged to be defamatory were expres- The second go-round (“Immuno where he earned a medical degree. sions of opinion, rather than of fact, and II”)10 produced a fragmented result. Moor-Jankowski headed a primate lab therefore absolutely protected under Once again, the Court was unanimous at New York University and served the First Amendment.6 Judge Kaye’s that Immuno’s claims had properly as the unpaid editor of a small, highly specialized scientific journal, the LAURA JOHNSON ([email protected]) is Assistant Solicitor General, Office of the Attorney Journal of Medical Primatology.4 It was General. She graduated from Barnard College and Columbia University School of Law, and clerked a letter to the editor from an animal for Chief Judge Kaye from 1988 to 1990. This article represents the author’s personal views and not rights advocate, criticizing Immuno necessarily those of the Office of the Attorney General. AG.’s plans to use wild chimpanzees

20 | November/December 2008 | NYSBA Journal been dismissed. It was the question expressed in the unique, positive lan- sive litigation of which the Immuno case of what role the free speech guaran- guage of its state constitution, to pro- was a flagrant instance, with its atten- tee of Article I, § 8 of the New York tection for freedom of expression. dant chilling effect on publishers.16 ■ State Constitution should now play Judge Kaye concluded that under in the Court’s decision on remand New York’s more protective free speech 1. Immuno AG. v. Moor-Jankowski, 74 N.Y.2d 548, 549 N.Y.S.2d 938 (1989) (“Immuno I”); Immuno AG. that produced four separate opinions, clause, analysis of the context of an v. Moor-Jankowski, 77 N.Y.2d 235, 566 N.Y.S.2d 905 representing almost every conceiv- allegedly libelous statement – a factor (1991) (“Immuno II”). able methodology for state review on that appeared to have been dramatical- 2. Immuno I, 74 N.Y.2d at 553–55. remand. ly discounted in the Milkovich majority 3. Anthony Lewis, Abroad at Home; Abusing the Law, N.Y. Times, May 10, 1991. Judge Simons and Judge Hancock, in opinion – is key to determining wheth- 4. Douglas Martin, Jan Moor-Jankowski Is Dead at separate concurrences, concluded that er it should be deemed to assert facts.14 81; Used Chimps, Kindly, in Science, N.Y. Times, Sept. because the case had been remanded Resuscitating context as a critical factor 3, 2005. with directions that it be reconsidered under New York’s constitution allowed 5. 418 U.S. 323, 339–40 (1974). 6. Immuno I, 74 N.Y.2d 548. in light of the newly clarified federal Judge Kaye again in Immuno II to accord 7. Id. at 557–59. constitutional standard, and because considerable breathing space for publi- 8. 494 U.S. 1 (1990). members of the Court agreed that cation of letters to the editor, which 9. Immuno AG. v. Moor-Jankowski, 497 U.S. 1021 under Milkovich summary judgment are, she again noted, presumptively (1990). for Moor-Jankowski was proper, any understood as “expression[s] of indi- 10. 77 N.Y.2d 235. consideration of the state Constitution vidual opinion.”15 Such an approach 11. Id. at 260–62 (Simons, J., concurring). 12. Id. at 263–67 (Titone, J., concurring). was inappropriate. Judge Simons in was more protective, also, in obviating 13. Id. at 245–48. particular expressed strong general the need for line-by-line dissection of 14. Id. at 250, 254. disagreement with a “dual” constitu- the fact/opinion matrix under the still 15. Id. at 253. tional approach – that is, with render- somewhat unclear Milkovich test – and, 16. Id. at 256. ing a decision under both the New in turn, avoiding the protracted, expen- York State and federal Constitutions – which in his view resulted in unnecessary pronouncements of federal law that were insulated from review by the parallel decision on independent state grounds.11 Judge Titone, viewing the federal law as still unsettled after Milkovich, would have avoided pro- nouncing on any constitutional question, state or federal, by deciding the case solely by reference to New York’s common law doctrine of “fair comment.”12 Judge Kaye’s opinion for the Court is notable (and typical of her) both for its practical approach and its insis- tence on the validity of the state constitutional analysis. After explaining that summary judgment was proper even under the Supreme Court’s new explication of the federal constitutional standard, because to the extent that any statements in the letter might be interpreted as fact-based, Immuno had failed to prove their falsity,13 Judge Kaye turned to Article I, § 8 of the New York State Constitution. The state constitutional section is the heart of Judge Kaye’s opinion in Immuno II. It is a ringing affirmation of New York’s historical commitment,

NYSBA Journal | November/December 2008 | 21 HONORABLE JUDITH S. KAYE

Jacob, 1995 By Roberta A. Kaplan

hen I was fortunate enough Appeals’s decision in In re Jacob was “the humanitarian principle that adop- to be asked to submit a short in 1995.5 tion is a means of securing the best Wpiece on one of Chief Judge Unlike in the same-sex marriage possible home for a child.”9 As Chief Kaye’s many landmark opinions for the cases where the constitutional issues Judge Kaye noted: “[S]ince adoption New York Court of Appeals, the choice were at the fore, the question in Jacob in this State is ‘solely the creature of was easy. After all, Chief Judge Kaye was statutory – whether, under the . . . statute,’ the adoption statute must recently set the bar (no pun intended) applicable adoption provisions of New be strictly construed. What is to be herself in her opinion dissenting from York’s Domestic Relations Law, “the construed strictly and applied rigor- the Court of Appeals’s plurality deci- unmarried partner of a child’s biologi- ously in this sensitive area of the law, sion denying the state constitutional cal mother . . . who is raising the child however, is legislative purpose as well as right of same-sex couples to marry together with the biological parent, legislative language.”10 in New York.1 Chief Judge Kaye con- can become the child’s second parent More specifically, the chief stum- cluded her eloquent dissent in that by means of adoption.”6 The Court, bling block to allowing such adop- case with this prescient observation: “I in another divided opinion, held that tions – the Domestic Relations Law, am confident that future generations such persons could because, as Chief § 117 – arguably would have required will look back on today’s decision as Judge Kaye reasoned, “[t]o rule other- the “termination of the biological an unfortunate misstep.”2 wise would mean that the thousands mothers’ [parental] rights upon adop- While it remains to be seen whether of New York children actually being tion thereby placing appellants in the it will actually take a “generation” for raised in homes headed by two unmar- ‘Catch-22’ of having to choose one New Yorkers to agree on the wisdom ried persons could have only one legal of two coparents as the child’s only of Chief Judge Kaye’s prediction in parent, not the two who want them.”7 legal parent.”11 Chief Judge Kaye con- the context of marriage for same-sex How did the Court reach this result cluded that to permit such an incon- couples,3 as for her landmark opinion in the context of an adoption stat- gruous result in the context of a pro- in In re Jacob permitting second-parent ute that Chief Judge Kaye candid- vision intended to deal largely with adoptions by gay men and lesbians,4 it ly described as “a complex and not intestate succession, “could have the has taken far less than a generation for entirely reconcilable patchwork”?8 By discriminatory and unintended effect New Yorkers to come to the view that paying close and careful attention not of making unwarranted, detrimental she, once again, had it right all along. only to the statutory language, but also distinctions between” the children of Indeed, it is almost hard to imagine in to the underlying legislative purpose – straight, married couples and those 2008, with literally tens of thousands of gay and lesbian families raising ROBERTA A. KAPLAN ([email protected]) is a Litigation Partner at Paul, Weiss, Rifkind, Wharton children throughout the state, how & Garrison LLP. She earned her undergraduate degree from Harvard University and her law degree fraught with controversy the Court of from Columbia Law School. She served as Judge Judith Kaye’s law clerk from 1994 to 1995.

22 | November/December 2008 | NYSBA Journal of gay men and lesbians.12 In other really at stake in the cases before her. rights, once recognized, cannot be denied to particular groups on the ground that these groups have words, while “the legislature that last In addition to her analysis of the rel- historically been denied those rights.’”) (citations codified [the adoption statute] may evant statutory language or case law, omitted); id. at 451 (“As Chief Judge Kaye of the never have envisioned families that ‘in- her decisions demonstrate an ever- New York Court of Appeals succinctly observed in her dissenting opinion in Hernandez . . . ‘[t]here are clude[ ] two adult lifetime partners present awareness that cases involve enough marriage licenses to go around for every- whose relationship is . . . characterized real human beings and that the role one.’”) (citations omitted). by an emotional and financial commit- of the courts is to balance a respect 4. In re Jacob, 86 N.Y.2d 651, 636 N.Y.S.2d 716 (1995). ment and interdependence,’”13 it was for abstract principles with an under- 5. Such controversy is apparent in the language clear that the statute “designed as a standing that the application of any used by the dissent in In re Jacob such as its descrip- shield to protect new adoptive fami- abstract rule in any particular situation tion of the “at-will” nature of the relationships lies, was never intended as a sword to necessarily has an impact on the lives of gay and lesbian couples who, unlike straight, married couples, “cohabit[ ] only day-to-day.” In re prohibit otherwise beneficial intrafam- of flesh-and-blood people. Thus, when Jacob, 86 N.Y.2d at 669 (Bellacosa, J., dissenting). ily adoptions by second parents.”14 reading Chief Judge Kaye’s opinions 6. Id. at 656. Significantly, the Court of Appeals in the area of family law, opinions of 7. Id. did not decide Jacob in a vacuum. Only which she is justifiably proud, one is 8. Id. at 659. four years earlier, in In re Alison D., the always aware of her acute and alto- 9. Id. at 657–58. 10. Id. at 657 (citation omitted) (emphasis added). Court had denied a lesbian co-parent, gether human sense of what it actually 11. Id. at 662. after the couple had split up, visitation feels like to be a parent, a child, or a 12. Id. at 664. rights with the child she had helped to spouse.20 13. Id. at 668–69 (citations omitted). raise since birth.15 Chief Judge Kaye And that, of course, is why choosing 14. Id. at 669. dissented from the Court’s per curiam In re Jacob was so easy and obvious. Of 15. 77 N.Y.2d 651, 569 N.Y.S.2d 586 (1991). opinion in that case, noting that “[t]he all of Chief Judge Kaye’s thousands of 16. Id. at 657–58. 17. As a practical matter, the Court’s decision in Court’s decision, fixing biology as the decisions in her quarter century on the Jacob resolved the dilemma posed by In re Alison D.: key to visitation rights, may affect bench, it perhaps best encapsulates her Even more important, however, is the a wide spectrum of relationships – methodology with respect to the diffi- emotional security of knowing that including children who do not live cult, often painstaking, process of judg- in the event of the biological parent’s death or disability, the other parent will with two biological parents, and . . . ing. As Chief Judge Kaye explained in have presumptive custody. . . . Indeed, children [ ] born into families with words that ring as true today as they did viewed from the children’s perspective, gay or lesbian parent(s) . . . limiting when they were written back in 1995: permitting the adoptions allows the children to achieve a measure of per- their opportunity to maintain bonds However much we might prefer in manency with both parent figures and that may be crucial to their develop- this age of anxiety about “legislat- avoids the sort of disruptive visitation ment.”16 ing from the bench” and “judicial battle we faced in Matter of Alison D. In re Jacob, 86 N.Y.2d at 659 (Kaye, C.J.). So what explains this dramatic turn- activism” for only our elected rep- 18. Judith S. Kaye, State of Courts at the Dawn of a around with respect to the nature of resentatives to make all the sensi- New Century: Common Law Courts Reading Statutes the rights of gay and lesbian parents, tive decisions, so long as human and Constitutions, 70 N.Y.U. L. Rev. 1, 5, 6 (1995). and in just four years?17 First and fore- language remains imprecise and 19. Id. at 25, 26. most, Jacob reflects Chief Judge Kaye’s the human capacity to predict the 20. One of the best examples of Judge Kaye’s keen sensitivity to the situation of the litigants in the keen awareness of the “durable, certain future limited, the cascade of cases cases before her is this moving language from her and predictable” yet not “static” com- that call upon judges to fill the dissent in the same-sex marriage cases: mon law as the “core element in state gaps – and to do so by reference to For most of us, leading a full life includes court decision making.”18 As Chief social justice – will unquestionably establishing a family. Indeed, most New Yorkers can look back on, or forward 21 ■ Judge Kaye has observed, “ascertain- continue. to, their wedding as among the most ing the legislative intent is often no significant events of their lives. They, less difficult than drawing common- 1. See Hernandez v. Robles, 7 N.Y.3d 338, 821 like plaintiffs, grew up hoping to find that one person with whom they [could] law or constitutional distinctions. . . . N.Y.S.2d 770 (2006). The author served as lead counsel and argued for the appellants in Samuels et al. v. share their future, eager to express their When the meaning of a statute is in N.Y. State, 29 A.D.3d 9, 811 N.Y.S.2d 136 (3d Dep’t mutual lifetime pledge through civil dispute, there remains at the core the 2006), one of the companion cases to Hernandez. marriage. Solely because of their sexual orientation, however – that is, because same common-law process of discern- 2. Id. at 396 (Kaye, C.J., dissenting). 3. Indeed, since the Court of Appeals’s decision in of who they love – plaintiffs are denied ing and applying the purpose of the Hernandez, the California Supreme Court upheld the the rights and responsibilities of civil law. . . . Statutory interpretation is not right of same-sex couples to marry in that state in an marriage. This State has a proud tradition of affording equal rights to all New a mechanical exercise.”19 opinion that is replete with citations to Chief Judge Kaye’s language and analysis from her dissent in Yorkers. Sadly, the Court today retreats I would submit that the result in the marriage cases. See, e.g., In re Marriage Cases, 183 from that proud tradition. Jacob was also the product of Chief P.3d 384, 430, 43 Cal. 4th 757 (Cal. 2008) (“In this Hernandez v. Robles, 7 N.Y.3d 338, 380, 821 86 Judge Kaye’s most remarkable gift as regard, we agree with the view expressed by Chief N.Y.S.2d 770 (2006) (Kaye, C.J., dissenting). Judge Kaye of the New York Court of Appeals in her 21. Kaye, supra note 18 at 34. a jurist – her ability to see what is dissenting opinion in Hernandez . . . ‘[f]undamental

NYSBA Journal | November/December 2008 | 23 HONORABLE JUDITH S. KAYE

Jamaica Public Service Co., 1998 By Jeremy R. Feinberg

iven that my current role in roles of the various entities involved to confidences and secrets of both the the New York State Unified in insuring the plaintiff, the parties’ current and potential defendants. Now GCourt System largely involves corporate structure quickly became an that the affiant was working for its issues of ethics, it makes sense to issue. Having served a summons and adversary, the defendant argued, there call attention to a significant ethics- complaint on what it thought was the was a real and substantial danger that related opinion that Chief Judge Kaye proper defendant, the plaintiff “urged such confidences would be used in liti- authored during my clerkship: Jamaica that service of process on [the ini- gation. The affiant submitted a second Public Service Co. v. AIU Insurance Co.1 tial defendant] should also be deemed affidavit, indicating he never worked The issue presented in that case – a service on [the allegedly proper par- for any of the entities involved in the motion to disqualify a law firm repre- ties].”2 current litigation, had not learned any senting a party resulting from the pos- To refute a claim that the plaintiff confidential information, and had not sibility that one attorney at the firm “should have known” and served the used information of that kind in his possessed confidences and secrets of proper parties in the first instance, the first affidavit. The motion court none- the other party – is the sort of question plaintiff submitted a short affidavit theless disqualified the firm, and the that gives even seasoned ethics prac- from one of its outside counsel, who Appellate Division affirmed, certify- titioners pause, if not a need to reach had once worked for one of the insuring the question of whether its order for a bottle of aspirin. Yet the Chief ance companies in the same insurance was properly made to the Court of Judge, writing for a unanimous Court group as the defendant. The affiant Appeals.4 of Appeals, resolved the issue in a way averred that the insurance companies The Court applied a three-part test that not only disposed of the matter involved had a confusing corporate (set forth in a prior decision the Chief before the Court, but set forth and structure that was neither well known Judge authored)5 to determine wheth- reinforced a clear and simple standard nor understood in the industry.3 er disqualification was appropriate that has made addressing such issues The defendant promptly moved to under DR 5-108(A)(1): (1) Was there an easier going forward. disqualify the law firm on the theory attorney-client relationship between Jamaica Public Service involved an that the affiant’s former employment the moving party and the opposing insurance dispute in the aftermath of a as an in-house counsel for a related counsel? (2) Were the matters in both boiler explosion. The plaintiff-insured insurance company gave him access the current and former representations sought to recover the difference between what it alleged it had been JEREMY R. FEINBERG ([email protected]) is the Statewide Special Counsel for Ethics and the promised in insurance coverage and Commercial Division for the New York State Unified Court System. Mr. Feinberg was Chief Judge what it had already been paid under Judith S. Kaye’s law clerk for two years, beginning in December 1996. He is a 1995 graduate of its policy – $15.5 million. As the par- Columbia Law School and a 1992 graduate of Columbia College. ties wrangled over the identities and

24 | November/December 2008 | NYSBA Journal substantially related? And (3) were the “generally known.”10 Here, the Court of Appeals, through Chief Judge Kaye, interests of the present and former cli- of Appeals concluded that because set some bright lines for the lower ent materially adverse?6 the information provided about the courts to follow in assessing similar In reversing the Appellate Division, defendant’s corporate structure and motions under DR 5-108(A)(1) and the Court of Appeals focused on the its member companies “was readily (2) in the future. More than 50 cases second prong of this test. The Chief available in such public materials as have cited Jamaica Public Service since Judge wrote that the defendant “failed trade periodicals and filings with State its issuance, largely to address these to show that [outside counsel’s] prior and Federal regulators,” it was “gener- very issues. representation was ‘substantially relat- ally known” and therefore including The Jamaica Public Service decision ed’ to his current representation,” not- that information in an affidavit, as the is in truth only a small part of Chief ing that the outside counsel’s affidavit affiant had done, could not support Judge Kaye’s ethics legacy. She has stated that he had done no work with disqualification.11 authored many opinions for the Court the entities or types of claims at issue Finally, the defendant argued that that touch on attorney ethics, and in so in this case and, in fact, the defendant’s there was “a reasonable probability of doing has helped define the role and own affidavits only confirmed these disclosure” of a former client’s confi- impact of the Disciplinary Rules in key facts.7 Under the circumstances, dences and secrets sufficient to justify ordinary civil and criminal litigation. the Court held that there could be no disqualification. The defendant sub- But even the entire body of ethics deci- violation of DR 5-108(A)(1). mitted statements of the affiant’s for- sions issued by the Court of Appeals Interestingly, the Court of Appeals mer supervisors to the effect that he during her tenure does not constitute could have, but did not, squarely “had access to confidences and secrets” the extent of her influence in this area. address the first prong of the test: and that there was a “real and sub- It really is her character and example – whether or not there was a former stantial danger” that the information not just her reported decisions or even attorney-client relationship between would be used in litigation.12 the rules, policies and programs she the moving party and opposing coun- Chief Judge Kaye rejected this argu- has established as Chief Judge – that sel. Instead, Chief Judge Kaye assumed ment as well. Recognizing that dis- have inspired so many attorneys to that such a relationship existed and qualification motions are often used as strive to do what is right rather than expressly left open “for another day” strategic weapons, the Court held: what is merely expedient. I do not and the question of whether “employment Allowing a party seeking dis- cannot claim to be perfect, but to the by one entity in a large corporate fam- qualification to meet its burden by extent that I have any genuine under- ily was tantamount to an attorney- generalized assertions of “access standing of what it means to be an client relationship with other members to confidences and secrets” would ethical lawyer, she rightfully deserves 8 of that family.” One possibility is that both make it difficult, if not impos- much of the credit. She has my warm- the allegedly complex corporate struc- sible, to test those assertions and est admiration as an ethical role model, ■ ture of the defendant – the key issue encourage the strategic use of such and my affection, always. leading to the affidavits challenged on motions. In such instances, courts the disqualification motion – did not 1. 92 N.Y.2d 631, 684 N.Y.S.2d 459 (1998) (Kaye, could not determine whether a C.J.). present the best facts for exploring this former attorney’s alleged informa- 2. Id. at 634. knotty issue. tion was in fact a “confidence” or 3. Id. As is normally the case in disquali- “secret” as defined by the Code or 4. Id. at 635–36. fication motions, the movant asserted whether it was generally known 5. Tekni-Plex, Inc. v. Meyner & Landis, 89 N.Y.2d multiple grounds for attempted dis- and therefore outside the scope of 123, 651 N.Y.S.2d 954 (1996) (Kaye, C.J). qualification. Thus, the defendant also DR 5-108(A)(2). 6. Jamaica Pub. Serv., 92 N.Y.2d at 636. argued that it was entitled to relief 7. Id. at 636–37. because outside counsel allegedly “vio- While a movant need not actually 8. Id. at 636. lated DR 5-108(A)(2)’s bar against dis- spell out the claimed secrets and 9. Id. at 637. closure or use of a former client’s confi- confidences in order to prevail, it dences and secrets.”9 Again assuming, must at a minimum provide the 10. Id. without deciding, that there was a motion court with information 11. Id. at 637–38. past attorney-client relationship, the sufficient to determine whether 12. Id. at 638. Court took the opportunity to define there exists a reasonable probabil- 13. Id. and apply the exception afforded in ity that DR 5-108(A)(2) would be 13 DR 5-108(A)(2): A former lawyer may violated. divulge a former client’s confidences Thus, in rejecting the defendant’s and secrets without violating a disci- attempt to disqualify the plaintiff’s plinary rule when they have become counsel on the facts before it, the Court

NYSBA Journal | November/December 2008 | 25 HONORABLE JUDITH S. KAYE

Kihl, 1999, and Its Progeny By Jennifer G. Schecter

“Membership in the Bar counsel. The trial court, in all, afforded counsel mailed it and that the prop- Is a Privilege Burdened the plaintiff over a year to provide erly executed affidavit of service raised With Conditions”1 meaningful responses to the defen- an unrebutted presumption of proper No recent decision underscores the dant’s interrogatory demands. mailing. importance of following court orders The defendant served the order on More significant, Chief Judge Kaye and adhering to deadlines more than all parties by mail. Despite two remind- drew attention to the problem of non- Kihl v. Pfeffer.2 ers of the court order from defense compliance with court orders, explain- In Kihl v. Pfeffer, the plaintiff counsel, the plaintiff’s attorney insisting that “when a party fails to com- appeared for a preliminary conference ed that service had not been effected ply with a court order and frustrates and consented to an order requiring and failed to further respond. the disclosure scheme set forth in the her to respond to the defendant’s inter- Several months later, wary of dis- CPLR, it is well within the Trial Judge’s rogatories “within 30 days following missing a case without addressing its discretion to dismiss the complaint.”5 receipt of same.”3 Five months beyond merits, the supreme court reserved Chief Judge Kaye emphasized that if the prescribed deadline, urging that issuing a final dismissal order pending “the credibility of court orders and it was unable to prepare its defense review of the service issue. Each side the integrity of our judicial system without the requested disclosure, the submitted opposing affidavits.4 are to be maintained, a litigant can- defendant moved to strike the com- Almost two years after the par- not ignore court orders with impu- plaint or alternatively to compel the ties’ preliminary conference, the court nity,” and made clear that “compliance plaintiff to respond to its interrogatory dismissed the complaint. A divided with a disclosure order requires both demands within 10 days. The plain- Appellate Division affirmed, with two a timely response and one that evi- tiff opposed the motion and, approxi- justices dissenting because they would dences a good-faith effort to address mately eight months after they were have required a hearing related to ser- the requests meaningfully.”6 due, served responses. The defendant vice of the conditional-dismissal order. To legal scholars, Kihl v. Pfeffer may nonetheless pursued dismissal, argu- Writing for the unanimous Court not have seemed monumental. To ing that the plaintiff’s answers were of Appeals, Chief Judge Kaye suc- practitioners and the courts, however, “‘woefully inadequate and totally cinctly explained that service of the ini- the decision would have enormous unresponsive.’” tial order was complete when defense impact as reflected by its citation in Agreeing with the defendant, the supreme court granted dismissal JENNIFER G. SCHECTER ([email protected]) serves as Principal Law Clerk to Supreme Court unless the plaintiff served more com- Justice Eileen Bransten of New York County. She earned her law degree from Seton Hall University prehensive answers to 14 specified School of Law, where she has taught New York Practice, and her B.A. from Rutgers College. She interrogatories within 20 days after clerked for Chief Judge Kaye from 1998–2001. service of a copy of the court’s order on

26 | November/December 2008 | NYSBA Journal hundreds of decisions and orders. Kihl the untimeliness – rather than simply fact leaves nothing to try. Indeed, affirms the importance of following permitting meritorious, nonprejudicial the statute should not “provide a procedural rules, which ultimately filings, however tardy.”12 safe haven for frivolous or merit- bear on the ability to have cases heard Chief Judge Kaye next turned to the less lawsuits,” which is precisely on their merits. “more vexing issue”: What to do when why practitioners should move Indeed, five years later, expanding there is no good cause for the delay for summary judgment within the on Kihl, Chief Judge Kaye reaffirmed but the motion has merit and, if timely prescribed time period or offer a the importance of meeting deadlines, made, would have obviated the need legitimate reason for the delay. this time, in the context of late summa- for a trial?13 Citing Kihl v. Pfeffer, Chief * * * ry-judgment motions. In Brill v. City Judge Kaye declared that the scenario What is to happen in this case is of New York, the Brills sued New York presented “another example of sloppy that summary judgment will be City after Ona Brill tripped and fell on practice threatening the integrity of reversed and the case returned to a sidewalk.7 The city moved for sum- our judicial system.” Chief Judge Kaye the trial calendar, where a motion mary judgment almost a year after emphasized that to dismiss after plaintiff rests or a the plaintiffs filed their note of issue [i]f this practice is tolerated and request for a directed verdict may and certificate of readiness, which had condoned, the ameliorative statute dispose of the case during trial. signaled that the case was ready for is, for all intents and purposes, Hopefully, as a result of the courts’ trial.8 Despite CPLR 3212(a)’s require- obliterated. If, on the other hand, refusal to countenance the statu- ment that unless a court sets a different the statute is applied as written tory violation, there will be fewer, date or time frame, “such motion shall and intended, an anomaly may if any, such situations in the future, be made no later than one hundred result, in that a meritorious sum- both because it is now clear that twenty days after the filing of the mary judgment motion may be “good cause” means good cause note of issue, except with leave of denied, burdening the litigants and for the delay, and because movants court on good cause shown,” the city trial calendar with a case that in will develop a habit of compliance offered no explanation for its lateness in moving, and instead focused on the motion’s undeniable merit.9 Supreme court granted the untimely motion, thereby dismissing the action, and the Appellate Division affirmed. Exalting the benefits of summary-judgment motions, which avoid “needless litigation cost and delay” and benefit both the parties and “the overburdened New York State trial courts,”10 Chief Judge Kaye recounted that the Legislature enacted the summary-judgment deadline in response to problematic, eve-of-trial motions that prejudiced litigants who had already prepared for trial. The practice of filing late summary-judgment motions, Chief Judge Kaye wrote, persisted even after the statutory time limit was imposed and courts disagreed on whether the merit of a motion was sufficient to satisfy the “good cause” requirement for excusing untimeliness or whether the movant had to establish a satisfactory reason for its lateness to proceed. Writing for a majority of the Court,11 Chief Judge Kaye made clear that “CPLR 3212(a) requires a showing of good cause for the delay in making the motion – a satisfactory explanation for

NYSBA Journal | November/December 2008 | 27 with the statutory deadlines for rity of criminal proceedings and leaving long after sunset, to make the summary judgment motions rather fairness in criminal process.17 courts more efficient and more respon- than delay until trial looms.14 Additionally, in People v. Johnson,18 sive. She thinks out of the box and was Kihl’s and Brill’s message to a addressing the importance of fair and instrumental in establishing innova- “delay-oriented culture”: “honor the impartial jurors to the integrity of tri- tive problem-solving courts so that deadlines, whether statutory or court- als, Chief Judge Kaye, writing for a justice could be more accessible and ordered.”15 majority of the Court,19 gave useful its goals better achieved. Chief Judge guidance to judges and articulated a Kaye taught me to write right (always Safeguarding Fairness clear rule prohibiting use of equivocal use plain language, double dashes are Other decisions Chief Judge Kaye jurors absent a clear statement that any very useful), dress right (every woman wrote also highlight the important prejudice or predisposition could be should own red shoes), and eat right role that lawyers and jurists play in put aside. Chief Judge Kaye wrote: (there’s no such thing as too much safeguarding fairness. In People v. When potential jurors themselves chocolate); and she continues to teach Santorelli,16 for example, the Court of say they question or doubt they me, by example, to be right by always Appeals reviewed prosecutors’ duties can be fair in the case, Trial Judges striving to improve, contributing to to turn over certain information to the should either elicit some unequivo- society and working hard to bring defense. Chief Judge Kaye called atten- cal assurance of their ability to be about positive change. Her opinions tion to the fact that impartial when that is appropriate, shed light on how to be a good lawyer [p]rosecutors play a distinctive role or excuse the juror when that is and a good judge. Her actions demon- in the search for truth in criminal appropriate.20 strate how to be a great leader and a cases. As public officers they are In sum, judicial opinions authored great person. charged not simply with seeking by Chief Judge Kaye demonstrate her Chief Judge Kaye will leave very convictions but also with ensuring deep concern for how law is practiced – big red shoes to fill. ■ that justice is done. This role gives with integrity and respect for proper rise to special responsibilities – procedure – and how judges safeguard 1. In re Rouss, 221 N.Y. 81, 81, 116 N.E. 782 (1917) (Cardozo, J.). constitutional, statutory, ethical, the fairness of proceedings. 2. 94 N.Y.2d 118, 700 N.Y.S.2d 87 (1999). personal – to safeguard the integ- 3. Id. at 120. “Method Is 4. Id. at 122. Much, Technique 5. Id. (citation omitted). Is Much, But 6. Id. at 123 (citation omitted). Inspiration Is 7. Brill v. City of N.Y., 2 N.Y.3d 648, 650, 781 Even More”21 N.Y.S.2d 261 (2004). 8. Id. My lessons from 9. Id. at 654. Chief Judge Kaye 10. Id. at 651. are more personal. 11. Judge George Bundy Smith dissented. Chief Judge Kaye’s 12. Brill, 2 N.Y.3d at 652. commitment to the 13. Id. courts – includ- 14. Id. at 653 (citations omitted). ing judges, non- 15. “Postscript by Chief Judge Judith Kaye” in Patrick M. Connors, CPLR 3212(a)’s Timing judicial employees Requirement for Summary Judgment Motions on Brill’s and, of course, Stroll Through Brooklyn and the Dramatic Effect It Has members of the on New York State’s Civil Practice, 71 Brook. L. Rev. 1529, 1531 (2006); see also Andrea v. Arnone, 5 N.Y.3d, public – has had a 514, 521, 806 N.Y.S.2d 453 (2005) (R.S. Smith, J.) tremendous impact (citing Kihl and Brill and concluding that litigation on my life, inspir- “cannot be conducted efficiently if deadlines are not taken seriously . . . disregard of deadlines should ing me to pursue a not and will not be tolerated”). career in the courts 16. People v. Santorelli, 95 N.Y.2d 412, 718 N.Y.S.2d and encourage oth- 696 (2000), aff’d, 4 Fed. Appx. 78 (2d Cir. 2001). ers to do the same. 17. Id. at 420–21. Chief Judge Kaye 18. People v. Johnson, 94 N.Y.2d 600, 709 N.Y.S.2d 134 (2000). has worked tire- 19. Judges Bellacosa and Wesley dissented. lessly, often arriv- 20. Johnson, 94 N.Y.2d at 616. ing in chambers 21. Benjamin Cardozo, The Game of the Law in Law before sunrise and Literature and Other Essays and Addresses 163 (1931).

28 | November/December 2008 | NYSBA Journal

HONORABLE JUDITH S. KAYE

Campaign for Fiscal Equity, 2003 By Matthew J. Morris

n Campaign for Fiscal Equity, Inc. previous decision in the CFE case. to adjudicate a case involving that v. State of New York (“CFE II”),1 That decision – CFE I – requires some mandate. I think the aspiration to start the Court of Appeals held that attention if CFE II is to be under- from common ground and with clarity I 4 the state of New York had violat- stood. In the first generation of state is characteristic of Chief Judge Kaye’s ed the Education Article of the New constitutional school funding litiga- jurisprudence. York State Constitution2 by failing to tion, the Court of Appeals had rejected Perhaps because they knew that provide a sound basic education to the claim that inequalities in funding they could not prevail by demonstrat- the schoolchildren of New York City, between school districts alone could ing systemwide inequalities, the CFE and directed the state to undertake render a funding system unconstitu- plaintiffs focused on the adequacy of measures to remedy that failure. The tional, but left open the possibility of a public schooling in New York City, decision elicited comments from gov- claim that the state failed to provide a which, as the CFE II majority noted, ernment leaders in Albany and New sound basic education.5 presented a unique combination of York City, and from educators, schol- In a state with some excellent public high student need, high local costs, low ars and journalists. These reactions, schools, this meant that, thereafter, any funding, and poor results.7 In CFE I, in many instances, focused on the viable Education Article claim would deciding a motion to dismiss, the political impact of the decision and inevitably focus on local rather than majority concluded that the plaintiffs the perceived “bottom line” question systemwide failings. That constraint had stated a claim for relief under of how much more money the state would later be overlooked by advo- the Education Article, and it set forth would have to appropriate to meet its cates of a statewide remedy, beginning guidelines for the parties to follow constitutional mandate. As law clerk with Judge Smith in his CFE II concur- when proving their cases.8 The CFE I to Chief Judge Kaye, I had the privi- rence.6 By beginning with an overview dissent and concurrence both set forth lege of assisting her in preparing the of the law, the CFE II majority made weighty criticisms of the framework majority opinion, and I would like to clear what the Education Article man- under which the Court directed the take this occasion to discuss the place dates and what approaches are avail- parties to proceed, but after that direc- of CFE II in the Court’s jurisprudence able to the judiciary when called upon tive had been issued and the case had during her tenure. CFE II opens with a quotation of the MATTHEW J. MORRIS ([email protected]), an associate in the litigation department at constitutional language under which Proskauer Rose LLP., received his J.D. from New York University, a Ph.D. in English from Cornell the plaintiffs sued and a review of University and a B.A. from the University of Chicago. He clerked with Chief Judge Kaye from 2001 previous education funding litigation until 2003. in New York,3 including the Court’s

30 | November/December 2008 | NYSBA Journal been tried, the courts were obligated for the Court is normally limited to who thinks that judges’ votes can be to adjudicate it under the ground rules the review of questions of law. The predicted based on partisan affiliation the CFE I court had outlined.9 That Court concluded that the educational or similar factors would have expect- obligation remains steadily in view in inputs were inadequate and the out- ed the CFE II court to split badly and the majority opinion in CFE II.10 puts unsatisfactory.17 The Court fur- require the addition of judges from After CFE I, the parties did exactly ther concluded that these results were the Appellate Division. The potential what the Court instructed them to do. causally connected to poor funding – for sharp divisions of opinion in con- They built a trial record consisting of and not, as the state argued, ascribable stitutional education funding cases is tens of thousands of pages of exhib- to the educational disadvantages of apparent from the trail of dissents its and testimony on the educational city schoolchildren or the failings of and concurrences mentioned in the “inputs” the state delivered to city city government.18 As the Court said, it footnotes hereto. Nevertheless, Chief schoolchildren (such as class size and could not “accept the premise that chil- Judge Kaye assembled a four-judge teacher pay); the “outputs” (such as dren come to the New York City schools majority for this difficult case, which is test results and graduation rates); and ineducable, unfit to learn.”19 All of the a tribute to her own leadership as well the causal relationship (or lack thereof) Court’s conclusions were grounded in as to the characters of the other judges between funding levels and outputs.11 the exhaustive record under review, involved. ■ After a bench trial, supreme court and I believe that anyone who studies held for the plaintiffs.12 The Appellate that record in earnest would be hard 1. 100 N.Y.2d 893, 769 N.Y.S.2d 106 (2003). Division reversed on the law and the pressed to disagree with them. 2. N.Y. Const. art. XI, § 1. facts.13 The Court gave the Legislature a 3. CFE II, 100 N.Y.2d at 901–902. The Appellate Division held that year in which to begin to implement a 4. Campaign for Fiscal Equity, Inc. v. State of N.Y., 86 N.Y.2d 307, 631 N.Y.S.2d 565 (1995) (“CFE I”). Chief the constitutional requirement to remedy, beginning with a determina- Judge Kaye recused herself from CFE I. deliver a sound basic education is met tion of what it would cost to deliver a 5. See CFE II, 100 N.Y.2d at 902 (discussing previ- when schoolchildren receive the skills sound basic education to city school- ous cases); CFE I, 86 N.Y.2d at 315–16; Bd. of Educ., that are imparted between eighth and children.20 Here again, some would Levittown Union Free Sch. Dist. v. Nyquist, 57 N.Y.2d ninth grade.14 Reversing this hold- have preferred a more specific directive, 27, 453 N.Y.S.2d 643 (1982). ing, the Court of Appeals concluded but the Court’s remedial discussion 6. CFE II, 100 N.Y.2d at 932 (Smith, J., concurring). that a sound basic education meant a was guided by the conviction that the 7. Id. (majority opinion). “meaningful high school education” Court had “neither the authority, nor 8. CFE I, 86 N.Y.2d at 314–19. that afforded children the essentials the ability, nor the will to micromanage 9. Id. at 324–32 (Levine, J., concurring in the identified in CFE I and the opportunity education funding,” yet equally that it result); id. at 332–44 (Simons, J., dissenting in to function as civic participants.15 The could not abdicate its duty to “define, part). Court thus rejected both the startlingly and safeguard, rights provided by 10. See, e.g., CFE II, 100 N.Y.2d at 905–908, 918–21, low standard espoused by the state the New York State Constitution, and 924–25. By contrast, the dissent reads in places like 21 a motion to reargue CFE I. See id. at 950–51 & n.4 and the Appellate Division, on the one order redress for violation of them.” (Read, J., dissenting). hand, and the argument of some amici, The Court had a specific controversy 11. Id. at 902–903. on the other, that the standard should before it, which it resolved with as 12. Campaign for Fiscal Equity, Inc. v. State of N.Y., be the Learning Standards adopted by much restraint and deference to the 187 Misc. 2d 1, 719 N.Y.S.2d 475 (Sup. Ct., N.Y. Co. the State Board of Regents in 1996 – political branches as the record and the 2001). which are essentially a college prepara- state constitution allowed. 13. Campaign for Fiscal Equity, Inc. v. State of N.Y., tory curriculum. Although some com- Only five judges formed the CFE II 295 A.D.2d 1, 744 N.Y.S.2d 130 (1st Dep’t 2002). mentators would later suggest that the court: Chief Judge Kaye, and Judges 14. See CFE II, 100 N.Y.2d at 906 (citing Campaign for Fiscal Equity, Inc., 295 A.D.2d at 8). Court should have stated a more spe- Smith, Ciparick, Rosenblatt and cific standard, the Court was expound- Read.22 The Court of Appeals, unlike 15. Id. at 907–908. ing a constitution under which the law the United States Supreme Court, can- 16. Id. at 903; CPLR 5501(b). would have to continue to evolve. not decide a case on a mere plurality. 17. CFE II, 100 N.Y.2d at 908–19. Having addressed the standard, It must have a four-vote majority, and 18. Id. at 919–25. the Court turned to the application. if, due to recusals and disagreements, 19. Id. at 921. Because the Appellate Division had it had split 3-2, one or two judges from 20. Id. at 925–31. substituted its own findings of fact the Appellate Division would have 21. Id. at 925. for those of the trial court, the Court had to be impaneled to ensure a major- 22. Judge Graffeo recused herself and Judge of Appeals was required to determine ity. The five judges who decided CFE II Wesley, who participated at oral argument, became a judge on the United States Court of Appeals for which lower court’s findings more included three Cuomo appointees who the Second Circuit before the case was decided. nearly comported with the credible live in New York City and two Pataki evidence.16 This was a rare situation, appointees who live upstate. Anyone

NYSBA Journal | November/December 2008 | 31 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.

Some Deposition Nuts & Bolts

o close out 2008, I return to I do not advocate using every tech- ing.” Why? They are signaling their a topic that has been covered nique at every deposition, and I advo- intention to take the issue, whatever it Toften in this column,1 as well as cate, whenever possible, working out is, up with the court. Is your tormentor other legal publications too many to differences and misunderstandings worried? Not likely, since nine times count: depositions. with your adversary. I also have no out of 10, or 99 times out of 100, the First, let’s all agree to stop calling problem with a reasonable, mutual, threat of making a motion is a tooth- Part 221 of the Uniform Rules2 the relaxation of the rules, so long as it is less one, because the vast majority of “new” deposition rules. When I was relaxed for both sides. On occasion I attorneys never make the motion. 12, I moved to a different neighbor- have even been known to enjoy a bit Alternatively, and all too often, hood in the Bronx. For the next two of collegial deposition colloquy, ban- an attorney misbehaves at a deposi- years or so, until another kid moved tering, and colorful objections, even tion and the well-intentioned adver- into the neighborhood, I was the “new” when I have been on the receiving end. sary grimly soldiers on, or “grins and kid. I thought that was ridiculous, and For example, when my adversary and bears it.” Newsflash: you don’t need to because the deposition rules have been good friend from Richmond, Virginia, grin and bear it, and doing so simply around for over two years now, it is Tom Wolf,5 voiced objection to a ques- permits the misbehaving attorney to time to retire the prefix “new.” Doing tion I posed to his client in a federal avoid any adverse consequence for bad so should curb the plea for mercy by class action deposition, I asked him behavior. This encourages the offender a deposition scoundrel: “The rules are for the basis of his objection. “Stupid to re-offend. ‘new,’ I didn’t know.” question,” he replied. Upon reflection, Discussing this tactic first may Practitioners, with little prodding, I realized he was right and re-phrased seem like putting the cart before the will acknowledge there are still mem- my question.6 horse. However, making the deposi- bers of the bar who are not complying No, these techniques are reserved tion motion is the ultimate tool to with the rules. This revelation is as for those times when an adversary accomplish your goal of obtaining all shocking to active litigators as was the flouts the rules, disparages and deni- necessary disclosure to which you are “discovery” by Captain Renault that grates you, your witness, or your case, entitled from a deposition where your there was gambling going on at “Rick’s or otherwise causes the return of the efforts have been thwarted. Besides, American Café.”3 facial tic you last experienced during making the motion, and prevailing, In light of this sad fact, it is best to the bar exam. offers some measure of validation and be prepared. Prepare yourself for an Like the multitude of tools I have vindication. encounter with an old dog wielding sitting in my garage, unused and, over I do not advocate motion practice old tricks. Once bitten, twice shy, is time, misplaced, these deposition tech- for each and every infraction or slight. not the solution for attorneys battered niques will only have a positive impact Instead, be prepared to follow up on by an obstreperous4 opponent. If you on your deposition practice if you the “mark it for a ruling” threat and have been abused in the past, you can actually use them. actually make a motion when your arm yourself to avoid a repeat “beat Now, some tips on how to defang adversary crosses the line (like por- down” at your next deposition. Just as your adversary. nography, you will know it when you every [deposition] dog has his [or her] see it). The “line” is what separates day, so too, beleaguered, battered, and Make the Motion a professional deposition that, while bothered deposing attorneys can have Countless times, in countless depo- adversarial, enables you to obtain the their day as well, and send that old sitions, attorneys, stymied by their information you are seeking, from a dog packing. adversary, snap at the unoffending nightmarish one, replete with wit- court reporter: “Mark that for a rul- ness coaching, ad hominem attacks, and

32 | November/December 2008 | NYSBA Journal long-winded comments where you are form or other basis of error or irregu- (c) will state, in spite of a stenographic unable to accomplish your goals. larity.”9 Imposing the requirement of word count in triple digits, that the explaining the objection, without the objection was succinct. Notice that Don’t Go Off the Record corresponding penalty of waiving the “(d)” – will recognize the error of his or We all know that depositions are objection for failing to do so, would her ways and object in accordance with designed to preserve testimony. What render the requirement meaningless. the rules thereafter – is not a choice. some of us forget is that the mecha- The drafters of Part 221 cannot possi- From then on in, remind your oppo- nism that makes this possible, the court bly have intended such a result. nent of the rule, the nature of the vio- reporter carefully transcribing that tes- Don’t be afraid to ask the basis lation of the rule, and the penalty you timony, can also be utilized to preserve for the objection, particularly if the will seek if the conduct continues. Wait, bad behavior for review. In order for question you have posed is an impor- patiently, until there is an objection so this to happen, the court reporter must tant one, and you are less than 100% clearly suggestive of an answer, or oth- be transcribing. Hence, when dealing certain that your question is totally erwise so “over the top,” and then call with an obnoxious, obstreperous,7 or unobjectionable. Often, the objecting the court for a ruling or adjourn the otherwise repellent adversary, make attorney will be unable to articulate deposition to make a motion. certain that the court reporter contin- an objection, having reflexively stated ues to transcribe everything that is said “objection” without thought or reflec- Conclusion in the deposition room. The way to do tion. You may then leave your question New York State’s deposition rules, in this is to instruct the court reporter that as is, confident that with no explana- both letter and spirit, provide a frame- you do not, and will not, consent to go tion for the objection, the objection is work for depositions to be conducted off the record until the deposition is waived. Just as often, the objecting in an effective manner in a civil set- completed or adjourned.8 attorney will articulate a meaningful ting. You deserve nothing less, and Now, in the face of this instruction, objection, and, if you are like me, you these tools are there to ensure you get your adversary may entreat you to will find, from time to time, that your what you deserve. ■ go off the record so that “everything question was, in fact, problematic in can be worked out.” Think about it. some way. Carefully considering the 1. As well as being the subject of one of my first-ever CLE programs, “Dynamic Depositions,” The person who has been torment- explanation your adversary offers for in March of 1996 for the NYCLA Chapter of the ing you for [fill in the blank] hours an objection will help you conduct a American Inns of Court. Upon re-reading these now, all of a sudden, is proposing to better deposition. 12-year-old materials, I was reminded how little, in deposition practice as well as so many other aspects have a civil discussion, off the record. My favorite scenario is where the of practice and life, things change. Acquiescence to such a proposal is objector objects, I ask what is wrong 2. 22 N.Y.C.R.R. §§ 221.1–221.3. akin to getting married after a divorce: with the question, the objector sug- 3. Casablanca. the triumph of hope over experience. gests an alternative question, I ask the 4. “Obstreperous” appeared on my “Word A Don’t be naïve. Politely inform your alternative question, and the objector Day” calendar, and I was determined to use it in a adversary that you, too, want to work objects again. Oh well. . . . sentence. things out so that the remainder of 5. No, not the Bonfire of the Vanities author; that’s the deposition proceeds smoothly and Limit Loquacity Tom Wolfe. without rancor. State your willingness The strongest impetus for the enact- 6. I did the same when, once again asked by me for the basis of his objection to my question, Tom to work together towards this goal, but ment of Part 221 was, undoubtedly, stated on the record “too many words.” only “on the record.” the widespread abuse of the “speaking 7. See supra note 4. objection.” The rules now require that 8. However, even this can be carried to an extreme, Ask What the Objection Is any objection be stated succinctly and and put the court reporter in a difficult position per- It was always my position before the so as not to suggest an answer to the forming unnecessary work. Once, during the same federal class action litigation referred to above, co- implementation of Part 221 that if I question to the witness. plaintiff’s counsel, a teacher at an area law school’s asked an attorney to state the form or The first time your adversary’s constitutional law clinic, after the parties requested other objection to a question I posed, objection spills beyond a reasonable a conference with the magistrate for a ruling in a deposition being conducted in the courthouse, and the objector declined to explain the word count, politely remind the object- insisted that the court reporter keep transcribing objection, the objection was waived. ing attorney that the rules require that everything that was said by counsel during the half While Part 221 does not explicitly objections be stated succinctly and so as hour or so until the magistrate took the bench. The result: page after page of discussions between the say the objection is waived if an expla- not to suggest the answer. Your oppo- witnesses concerning the weather, sports, upcom- nation is not given, the rules do require nent will either: (a) deny vehemently ing vacations, etc. Needless to say, the magistrate that, upon the request of the question- that an answer was being suggested; did not look kindly upon this direction. ing attorney, and only upon request, (b) state that he or she will make every 9. 22 N.Y.C.R.R. § 221.1(b). the objecting attorney “shall include damn objection he or she sees fit, and a clear statement as to any defect in in the manner he or she sees fit; or

NYSBA Journal | November/December 2008 | 33 A Whole Different Ballgame . . . Or Is It? Medical Malpractice and the Modern-Day Athlete By Tara R. Di Luca

28-year-old marathon runner collapses and dies eventually did reach the courtroom, courts have applied five-and-a-half miles into the U.S. Olympic men’s general medical malpractice principles in actions brought marathon trials in New York City. A college foot- against physicians and athletic trainers for alleged negli- A 2 ball player in Tennessee receives two blows to the head, gent medical treatment of athletic injuries. which result in brain injury. A professional boxer suffers a fatal head injury during a boxing match in New York City. The Team Physician A 21-year-old college lacrosse player in Pennsylvania suf- Sports medicine is a relatively newly recognized subspe- fers a fatal cardiac arrhythmia during practice. These cialty of medicine. Without confusing “newly” with “rec- all-too-familiar tragedies occur nationwide to athletes ognized,” the origins of sports medicine date as far back competing at all different levels, and who are from dif- as ancient Greece and Rome. However, it was not until ferent ethnicities and different backgrounds. They are the 1972 Summer Olympics in Munich that a true medi- young, healthy and active individuals, promising stars, cal team accompanied a nation’s athletes. Subsequently, role models and mentors. These are stalwart athletes suf- other countries followed this Canadian “phenomenon” fering sudden death. What happened? How did this hap- and assigned medical teams to their own Olympic ath- pen? Why did this happen? Is anyone responsible? These letes. seemingly simple questions become legal and medical Sports medicine is a unique facet of the medical field, anomalies, as families, friends, teammates and fans are focusing on the prevention, diagnosis, and treatment of left to piece together the medical and legal puzzle. injuries in athletes. This field encompasses vast medi- A topic of broadening interest in the legal realm of cal specialties. Team physicians are often specialists in medical malpractice involves the standard of medical areas such as family practice, internal medicine, ortho- care given to an athlete by team physicians and athletic trainers in the setting of high school, collegiate and professional athletics. Ironically, given the amazing amount TARA R. DI LUCA ([email protected]) is an Associate Attorney of public interest in sports, this area of law is very new, with Wilson Elser Moskowitz Edelman & Dicker, LLP. She received her law with many unresolved legal issues; it lacks any over- degree from Pace University School of Law and is a graduate of Fordham whelming legal precedence regarding physicians’ poten- University. tial malpractice in treating athletes.1 For the cases that

34 | November/December 2008 | NYSBA Journal pedic medicine, cardiovascular medicine or neurological subject to unique external pressures that may affect their medicine.3 ability to properly assess a particular athlete’s condition. A physician’s medical judgment must not be clouded by Standard of Care pressure from coaches, the team, school administration Before a defendant can be found liable for negligence, a and even the injured athlete in assessing whether the duty must be found to exist between the tortfeasor and athlete should be cleared to return to play. the plaintiff and a breach of that duty must occur, which In medical malpractice suits involving team physi- breach proximately causes the plaintiff’s injuries.4 When cians, the recent trend is to apply a national standard a case presents allegations of medical malpractice against of medical care.8 Courts have been hesitant to apply a team physician, a physician-patient relationship must the traditional locality rule in favor of a more uniform be established first before the physician can be held liable national standard, reasoning that appropriate treatment for negligence. In Scottland v. Duva Boxing,5 the court should not vary with the geographic location of where found that a physician-patient relationship was created the treatment is rendered. Athletic teams travel to differ- where the defendants were retained as ringside physi- ent geographical locations, and it would be irrational to cians during a boxing match. In this capacity, they were vary the standard of care an athlete receives as the team charged with the duty to exercise reasonable medical travels from state to state and from urban to suburban or care and to provide an ongoing medical diagnosis of the rural areas. athlete’s physical condition throughout the match. The Virtually instant universal access to technology and court found that a boxer could reasonably expect that a information sharing ensures that physicians have access ringside physician would call the match if necessary to to new and emerging medical developments. It is also protect his or her well-being and attend to any injuries important to acknowledge that some medical facilities in the boxer sustained during the match. The physician’s suburban or rural areas may not have the benefit of the duty extended to monitoring the physical conditions of latest, most sophisticated medical equipment or available the boxing participants and practicing in accordance with specialists. However, a health care provider’s lack of the good and accepted standards of medical care. latest equipment must be distinguished from a provider’s In Kleinknecht v. Gettysburg College,6 the court found failure to provide appropriate medical care by utilizing that a special relationship existed between the college and outdated treatment methods.9 the athlete simply by the fact that the college had actively recruited the athlete to play lacrosse. The court found that Pre-Participation Physical Examinations this relationship created a duty to provide prompt emer- Team physicians are required by law to perform medical gency medical services to a lacrosse player who suffered examinations of athletes to determine whether they are a fatal arrhythmia. medically able to participate in a sport. An athlete’s level Since an athlete’s participation in college or profes- of athletic experience could be a relevant factor in estab- sional athletics is relatively short, a team physician’s lishing whether a pre-participation physical examination main purpose should be to protect the health and safety is appropriate and reasonable. Professional and collegiate of each individual athlete without the unnecessary restriction of athletic activity.7 It is imperative that the interests of the individual athlete are balanced with the interests of the team as a whole. This balancing act requires that physicians be competent in preventing and treating injuries and in assessing whether and when an athlete is medically capable of returning to play. Specific duties of a team physician may include providing pre-season physical examinations, diagnosing, treating and rehabilitating athletic injuries, referring athletes to appropriate specialists if needed, providing medical clearance to athletes to play the sport and informing athletes of the risks involved when returning to play. Team physicians are

NYSBA Journal | November/December 2008 | 35 athletes can expect to receive a more comprehensive The court’s decision in Classen v. State15 was consis- exam than a high school athlete, given the strenuous tent with the appellate court’s decision in Rosensweig. In physical demands on athletes at elite levels. There is no Classen, the court similarly found that a physician who specific standard for pre-participation examinations and examined the athlete prior to his fight was not liable for physical procedures. malpractice because he had conducted an acceptable pre- Athletes alleging medical malpractice against sports participation physical and neurological examination of medicine physicians often proceed on the theory that the the boxer before clearing him to fight. The examination physician was negligent in failing to discover latent inju- was deemed in accordance with standard accepted medi- ries or physical defects.10 In Rosensweig v. State,11 the heirs cal practices. However, in Classen the court held that the of a boxing athlete who died after suffering a fatal head ringside physician could be held liable for failing to stop injury during a match claimed that the examining physi- the boxing match where the boxer received several head cians were negligent in failing to discover the boxer’s blows leading to his death. The ringside physician had a pre-existing brain injury. duty to practice in accordance with good and accepted The Appellate Division found that the pre-participa- standards of medical care in determining whether the tion standard examination was appropriate and found athlete should continue fighting. no evidence of a brain injury or concussion.12 In further support, the decedent’s past medical history indicated no Duty to Properly Diagnose and Treat sign or symptom of any concussion or brain injury war- As with any medical care provider, team physicians have ranting any further evaluation. The examining physicians a duty to appropriately diagnose and treat an injured were not negligent because the decedent was provided athlete. Expert testimony regarding the appropriate stan- with the customary pre-fight examination. dard of sports medicine care is generally required to A physician’s duty extends to the responsibility to refuse clearance if there is a belief that there is a signiﬁ cant risk of harm from participation.

The customary standard applied by the appellate prove that the physician deviated from the appropri- court is in contrast to the alternative approach of defin- ate standard. Included is the team physician’s duty to ing the standard in terms of acceptable practice under conduct appropriate tests to determine the nature and the circumstances, given the nature of the sport of boxing severity of an athlete’s particular condition. In Gardner v. and the associated risks. Evidently, this was the standard Holifield,16 a deceased athlete’s cardiologist was held lia- the trial court had applied. ble for failing to properly interpret two echocardiograms The trial court in Rosensweig found the physicians (ECGs) ordered to confirm an initial diagnosis of Marfan had acted negligently because giving the athlete an syndrome, which was made during a routine physical electroencephalogram13 and a standard pre-fight physi- examination of that player.17 The athlete died six months cal exam were negligent under the circumstances. (This after the examination. The court in Gardner relied on author believes that the trial court probably took into expert testimony to prove medical malpractice.18 Medical consideration the innate nature of the sport, and the facts experts testified that a proper confirming diagnosis and that the athlete was competing at an elite level and had treatment would have prevented the athlete’s death and received several blows to the head in previous fights.) Of given him a normal life expectancy. course, expert medical testimony is essential in proving the acceptable standard of medical care. In Rosensweig, Duty to Provide Proper Medical Clearance the appellate court refused to rely on expert medical A team physician has a duty to medically clear an athlete testimony that, even though a standard examination to return to play. This duty extends to the responsibility to found no evidence of a brain injury, good medical prac- refuse clearance of an athlete if there is a belief that there tice under these circumstances required the boxer to be is a significant medical risk of harm from participation. withheld from fighting for two to six months due to the A physician must keep the best interests of the athlete severe head beating he had received in a prior fight.14 It in mind in determining whether the athlete is capable of appears that when a physician is presented with treating returning to play without succumbing to pressures from an athlete with a particular injury, what is considered coaches, the administration, teammates and the injured customary may be an antiquated or outdated treatment athlete, because of the athlete’s own desire to get back in and therefore the accepted practice standard seems to be the game. Athletes, by nature, are competitive and driven more amenable to the current state of medicine. to succeed and most would rather play injured than “be

36 | November/December 2008 | NYSBA Journal benched” or “red shirted” for fear of becoming the next The plaintiff in Pinson was kicked in the head during Wally Pipp.19 football practice and collapsed unconscious. The athletic Along with the duty to provide medical clearance, the trainer failed to inform the emergency room physician team physician is required to inform the athlete of any about the neurological signs he had observed, including material risks of playing a sport in light if his or her physi- that the plaintiff had remained unconscious for about 10 cal condition. In Krueger v. San Francisco Forty Niners,20 a minutes, had suffered palsy on the left side of his face and California intermediate appellate court held that a profes- had no control of the left side of his body. Therefore, no sional football team’s conscious failure to inform a player CT scan was ordered. The plaintiff continued to complain that he risked a permanent knee injury by continuing to of severe headaches in the days following his discharge. play was fraudulent concealment. The court found that the Additionally, the athletic trainer failed to inform the team plaintiff was not informed by team physicians of the true physician of the plaintiff’s continued headaches. The nature and extent of his knee injuries, the consequences plaintiff was medically cleared by the team physician to of steroid injection treatment or the long-term dangers return to play.25 Soon after and during another practice, associated with playing professional football with his the plaintiff was kicked in the head a second time and col- medical condition. The purpose of this nondisclosure was lapsed unconscious. He underwent brain surgery, which to induce the athlete to continue playing football despite revealed that he had sustained a chronic subdural hema- his injuries, thereby constituting fraud. toma of three to four weeks’ duration as a result of the first blow. As a result of his injuries, the plaintiff remained The Athletic Trainer hemiparetic and suffered from severe cognitive problems Athletic trainers have a duty to exercise reasonable care and frequent seizures; a shunt was placed to relieve fluid for the health and safety of student athletes.21 An athletic build-up in his brain. trainer, as “gatekeeper,” is perhaps the individual in the The court found that the athletic trainer had a duty to best position to assess an athlete’s condition and report report to the emergency room physician the neurologi- to the team physician, because the trainer is in constant cal symptoms that the plaintiff had exhibited at the time contact with athletes on a daily basis. While recognizing of the first blow and to report the plaintiff’s subsequent that an athletic trainer is not a licensed physician, trainers headaches to the team physician and treating physi- nonetheless share many of the same duties as the team cian. The failure to do so was the proximate cause of the physician and may be found liable for the negligent care plaintiff’s injuries, the court found. Pinson expanded on and treatment of an athlete. Athletic trainers are licensed the ruling in Kleinknecht that, as a college athlete, Pinson in their respective states and hold themselves out to be professionals. Their legal duties may include properly assessing an athlete’s condition, providing or obtaining proper medical treatment, providing medical clearance to participate and informing the athlete of the risks of athletic participation given a particular medical condition. Establishing the standard of care for athletic trainers in their treatment of athletes ordinarily requires expert testimony.22 An athletic trainer can be held liable for failing to refer an athlete to the proper specialist in a timely manner. In Jarreau v. Orleans Parish School Board,23 a team trainer was found liable for failing to refer a football player to an orthopedist for his wrist injury until after the football season was over. The athletic trainer’s failure to timely refer the athlete proximately caused permanent injury to the player’s wrist. Pinson v. State24 is undoubtedly the leading case in setting legal precedence in sports medicine malpractice pertaining to the treatment of athletic injuries. The court recognized that a duty existed between an athletic trainer and an athlete, akin to that of a physician and athlete; the athletic trainer had a duty to report the plaintiff’s neurological symptoms to the team physician and treating physician, and failure to do so proximately caused the plaintiff’s injuries.

NYSBA Journal | November/December 2008 | 37 not only enjoyed a special relationship with his college cussing athletic trainers’ or physicians’ improper disper- giving rise to a duty to provide prompt medical care, but sion of medications to athletes, but this does not mean it the school also had a duty to provide appropriate medical does not occur. Anyone who watched the movie Varsity treatment to athletes injured during regularly scheduled Blues probably recalls the scene where the team’s quarter- games or practices. back is manipulated by his coach and trainer into taking cortisone shots into an injured knee, which finally gives The New Rage out. This scenario is all too real. In the case of Krueger v. With the aid of physicians, trainers and coaches, news of San Francisco Forty Niners, discussed previously, the team steroid use has flooded recent headlines,26 and brought physicians failed to inform the plaintiff of the effects of to light many medical and legal consequences. But ste- cortisone injections in his knee. The plaintiff suffered a roid use among athletes is not a new phenomenon. A permanent, career-ending injury. few decades ago, in the 1976 Summer Olympic Games For some athletes, these treatments become their in Montreal, the world looked on in amazement as the security blanket and main source of pain relief. While East German women’s swim team, otherwise known as cortisone works to reduce inflammation, repeated injec- “Wonder Girls,” swept gold medal after gold medal in tions have the potential to produce deleterious effects. each of their respective events. Years later after investiga- Cortisone injections can weaken tendons and break down tions were commenced and lawsuits were filed, a former cartilage, causing long-term, further damage.30 East German sports doctor admitted in a Berlin court Physicians and athletic trainers should inform athletes that he had handed out anabolic steroids to coaches “as of the risks associated with taking these medications and an official carrying out an order,” suggesting that the should not approve of these treatments without further order came from the doctors’ commission in the national evaluating or assessing the athlete’s condition. In some swimming association. He further testified that one of the situations, these treatments mask the seriousness of an association’s doctors decided which athletes received the injury, which can lead to further and permanent dam- steroids. The coaches were then charged with administer- age. ing the “little blue pills” to young female athletes as part of an East Germany state-sponsored campaign to attain Dying to Win athletic excellence. Eating disorders among female athletes are very serious, Further testimony revealed that the girls were given the potentially deadly and are estimated to afflict as high steroid, known as Oral-Turinabol, without their consent; as 62% of collegiate female athletes.31 A more accurate they were told that the pills were vitamins. The fall of the estimate is not readily made, as this silent epidemic is Berlin Wall ushered in the end of the old system, and Stasi all-too-often undiagnosed, untreated and underreported. secret-police files were opened and confirmed the worst The most common eating disorders in female athletes of suspicions, including details that some women were are anorexia nervosa, bulimia and compulsive exercise. ordered to abort fetuses that might have been deformed Eating disorders affect an athlete’s body in devastating by the drugs.27 Years later, the women who were victims ways, leading to a host of consequences, including bone- of the state-administered steroids came forward, testify- density loss leading to osteoporosis, severe weight loss, ing that they suffered from a host of illnesses, including potassium imbalance, stress fractures, cardiac arrest, and ovarian cysts and other gynecological problems, cardio- even death. There is virtually no case law addressing the vascular difficulties, enlarged hearts, miscarriages, liver issue of what duty, if any, a team physician has in iden- tumors and birth defects in their children. tifying and treating an athlete presenting with an eating A physician’s duty to an athlete is to use due care not disorder. Simply because of their positions, athletic train- to increase the risks to a participant over and above those ers and team physicians should be cognizant of the warn- inherent in the sport.28 The physicians who administered ing signs and symptoms of eating disorders, and should the steroids to these athletes knew or should have known respond appropriately by referring the athletes for proper that the use of steroids could cause severe injury. Legally medical and mental health treatment. speaking, at least under U.S. law, such conduct was clear- Should the legal duty of a team physician and athletic ly the proximate cause of the athletes’ injuries. Morally trainer extend to recognizing the symptoms of eating dis- speaking, such conduct went far beyond the bounds of orders in athletes under their supervision? Do they have illegality and was an ethical atrocity. the duty to refer an athlete to a mental health provider for treatment? Do they have the duty to pull an athlete Quick Fixes from competition or refuse to medically clear the athlete This leads to discussion of the use of cortisone injections to participate to protect the athlete from further harming and COX-2 non-steroidal anti-inflammatory medications his or her health? These are legal questions that remain (NSAIDs), such as Celebrex, for “quick fix, band-aid” unanswered and elicit different responses from coaches, treatments of athletic injuries.29 There are few cases dis- physicians and athletes themselves. Individuals with

38 | November/December 2008 | NYSBA Journal eating disorders are often embarrassed and ashamed of warning signs and symptoms of eating disorders. This their illnesses and take careful measures to hide their duty should extend to referring athletes to appropriate disorders from coaches, parents, teammates and health- health care providers and evaluating athletes’ health care providers. Many deny that they have a disorder and before medically clearing them to participate in sports. therefore refuse to seek help. Hopefully, this will raise the bar in setting a national The case of Wattenbarger v. Cincinnati Reds32 might pos- standard of care regarding this issue. sibly shed some light on the legal duty of coaches, team physicians and athletic trainers to identify and treat ath- The Future of Sports Medicine letes presenting with eating disorders. In Wattenbarger, the Sports medicine is fast becoming a specialized area. There court held that the defendants had a duty to use due care is a huge financial and personal incentive in rehabilitat- not to increase the risks to a participant over and above ing athletes. An athlete’s career is relatively short, finan- those inherent in the sport. This duty extended to restrict- cial stakes are high and fans eagerly await an athlete’s ing participation by an injured player to avoid aggra- return. While claims of medical malpractice brought by vating an injury, which included pre-existing injuries. injured athletes only recently hit the litigation spotlight, Whether this general duty of care extended to restricting medical recommendations published by the Bethesda participation by an injured player to avoid aggravation of Medical Conference35 have been recognized in some an injury became a question of foreseeability. cases as appropriate cardiovascular guidelines to be relied on by physicians when determining the fitness of an athlete for participation in a particular sport. Perhaps these guidelines will continue to be useful in resolving There is a huge ﬁ nancial the legal issues regarding the standard of care in the area of sports medicine. Two examples follow. and personal incentive In the case of Knapp v. Northwestern University,36 a federal appellate court recognized the appropriateness of a in rehabilitating athletes. physician’s reliance on current consensus medical guidelines when making a recommendation for an athlete with a cardiovascular abnormality. The court upheld the The court in Wattenbarger relied on Palsgraf v. Long university’s legal right to accept the team physician’s rec- Island R.R. Co.,33 and the elucidations of the Court that ommendation to medically disqualify a student-athlete “[t]he risk reasonably to be perceived defines the duty to from playing college basketball, which was consistent be obeyed.”34 The Wattenbarger court deemed it foresee- with the then-current 26th Bethesda Medical Conference able that allowing the plaintiff to continue to pitch after guidelines. This case perhaps sets the legal precedent that he had informed the powers that be that his shoulder a physician may justifiably rely upon the now-current had “popped” would lead to further injury. In applying 36th Bethesda Conference recommendations in deter- Wattenbarger’s extension of the duty of care, the argument mining the medical fitness of an athlete to participate in can be made that a coach, physician, and athletic trainer a sport, given the athlete’s cardiovascular condition. The each has a duty to protect an athlete with an eating dis- guidelines provide American Heart Association Panel order against further aggravation of the condition and recommendations for pre-participation athletic screening, against further aggravation of injuries associated with including family history, personal history and physical eating disorders such as heart problems, stress fractures, examination.37 bone loss and even death. Aggravating these injuries is As discussed above in the case of Gardner v. Holifield,38 reasonably foreseeable when an athlete’s body is severely a deceased athlete’s cardiologist was held liable for weakened and deprived of nutrition as a result of the eat- failing to properly interpret two echocardiograms that ing disorder. were ordered during a routine physical examination Classen v. State was previously noted for its proposi- to confirm an initial diagnosis of Marfan syndrome. tion that, in determining whether an athlete should con- According to the recommendations provided by the tinue participation, physicians have a duty to practice in 36th Bethesda Conference, athletes with Marfan syn- accordance with good and accepted standards of medical drome can participate in low and moderate static/low care. Applying this standard to the duty owed to athletes dynamic competitive sports if they do not have certain with eating disorders, one could argue that team physi- accompanying symptoms, as detailed in the guidelines. cians have the duty to determine whether athletes with It would be worth investigating whether the physicians eating disorders should continue to participate or be in Gardner considered the recommendations set forth by pulled from competition. the Bethesda Conference and whether they determined The first step in establishing a duty is to train team that the plaintiff fell into the category of athletes that can physicians, athletic trainers and coaches to recognize the compete despite Marfan syndrome.

40 | November/December 2008 | NYSBA Journal

In November 2007, 28-year-old distance runner Ryan 19. The legend is that Wally Pipp, who played first base for the Yankees, was Shay collapsed and died five-and-a-half miles into the replaced by Lou Gehrig when he sat out a game with a headache. U.S. Olympic men’s marathon trials held in New York 20. 234 Cal. Rptr. 579 (Cal. Ct. App. 1987). City. He had been diagnosed with an enlarged heart at 21. Searles v. Tr. of St. Joseph’s Coll., 1997 Me. 128, 695 A.2d 1206 (1997) (exis- tence of a duty involved the question of whether the defendant was under any age 14, but had been medically cleared to continue run- obligation for the benefit of the particular plaintiff. The court found that the ning. As the cause of Ryan’s death still remains incon- athletic trainer has the duty to conform to the standard of care required of an clusive, it will be interesting to establish what factors, ordinary careful trainer). criteria, and guidelines, if any, Shay’s physicians consid- 22. Id. ered in recommending that he be medically cleared to 23. 600 So. 2d 1389 (La. Ct. App. 1992). continue running, despite his condition. Hopefully, the 24. No. 02A01-9409-BC-00210, 1995 WL 739820 (La. Ct. App. Dec. 12, 1995). recommendations provided by the Bethesda Conference 25. An interesting legal inquiry is whether the team physician should have will assist in creating judicial precedent and lead to the physically examined the plaintiff himself before clearing him to return to play, rather than simply relying on what the athletic trainer told him. development of national standards of care regarding pre- 26. Recent television and news headlines report allegations of steroid use participation screening for cardiovascular abnormalities by baseball’s Barry Bonds, Jason Giambi, Roger Clemens, and Andy Pettitte, in high school, collegiate and professional athletes.39 among others, and track and field athletes including Marion Jones and Tim Montgomery. In December 2007, the Mitchell Report was published, which was the result of an intensive independent investigation into the use of anabol- Conclusion ic steroids and other performance-enhancing substances by major league base- As the specialty of sports medicine continues to develop ball players. In total, 89 current and former major league players are named in and become nationally recognized, team physicians, ath- the report and many are expected to testify before the House Committee on Oversight and Government Reform. letic trainers, and coaches should work together by shar- 27. Steve Kettmann, E. German Olympic Dopers Guilty (July 18, 2000), available ing information with the goal of appropriately and timely at http://www.wired.com/politics/law/news/2000/07/37631. diagnosing and treating injuries in their athletes. The best 28. Wattenbarger v. Cincinnati Reds, Inc., 28 Cal. App. 4th 746, 33 Cal. Rptr. 2d interests of their athletes should be at the forefront of any 732 (Cal. Ct. App. 1994) (the defendants were held liable where they allowed decision. ■ the plaintiff to continue to pitch and they knew or should have known that to continue would cause irreparable harm, and such conduct was the cause of the plaintiff’s injuries. The defendants owed a duty to the participants not to 1. Matthew J. Mitten, Emerging Legal Issues: A Synthesis, Summary, and increase the risks inherent in the sport). Analysis, 76 St. John’s L. Rev. 5 (2002). 29. COX-2 inhibiters selectively block COX-2 enzyme, which impedes the 2. Many cases involving the alleged negligent care and treatment of an production of the prostaglandins that cause the pain and swelling of arthritis athlete either settle or are governed by collective bargaining agreements or inflammation. Unlike the most common anti-inflammatory drugs like aspirin, workers’ compensation statutes, and therefore never reach the courtroom. ibuprofen, and naproxen, which act to block both COX-1 and COX-2 enzymes, 3. Sports medicine has been recognized as a subspecialty of the American COX-2 inhibitors act to selectively block only COX-2 enzyme. Cardiovascular Board of Medical Specialties since 1989. risks have been shown in COX-2-specific inhibitors as prostaglandins are 4. William L. Prosser, Prosser and Keeton on Torts (5th ed. 1984). involved in regulation of blood pressure by the kidneys. 5. Scottland v. Duva Boxing LLC, 2005 N.Y. Misc. LEXIS 3513 (2005). 30. Tricia Stuart, Long Road Ahead for Those With Knee Problems (Mar. 30, 2005), available at http://www.uchc.edu/ocomm/newsarchive/news05/mar05/ 6. 989 F.2d 1360 (3d Cir. 1993) (student-athlete with no prior medical history knee.html. of heart problems suffered cardiac arrest during lacrosse practice after develop- ing cardiac arrhythmia). 31. Simmons College Press Release, Eating Disorders Among Female Athletes: Big Problem, Little Knowledge (Mar. 12, 2002), available at http://www.simmons. 7. Mathew J. Mitten, Team Physicians and Competitive Athletes: Allocating Legal edu/about/news/releases/2003/3_12_03_eatdisorders.shtml. Responsibility for Athletic Injuries, 55 U. Pitt. L. Rev. 129 (1993). 32. 28 Cal. App. 4th 746. 8. Mitten, supra note 1, at 11. 33. 248 N.Y. 339, 162 N.E. 99 (1928). 9. Nowatske v. Osterloh, 198 Wis. 2d 419, 543 N.W.2d 265 (1996), overruled on other grounds by Nommensen v. Am. Cont’l Ins. Co., 246 Wis. 2d 132, 629 N.W.2d 34. Id. at 344. 301 (2001) (physician held liable where the treatment methods utilized were 35. The Bethesda Conference is a medical conference that was created for the outdated). specific purpose of establishing consensus recommendations among cardiolo- 10. Mitten, supra, note 1. gists and sports medicine physicians regarding the eligibility of athletes with cardiovascular abnormalities to participate in sports. The now-current 36th 11. Rosensweig v. State, 5 N.Y.2d 404, 185 N.Y.S.2d 521 (1959). Bethesda Conference was held on November 6, 2004. 12. Rosensweig v. State, 5 A.D.2d 293, 295, 171 N.Y.S.2d 912 (3d Dep’t 1958). 36. 101 F.3d 473 (7th Cir. 1996). 13. An electroencephalogram, or EEG, is a test that measures and records the 37. The consensus recommends a physical examination consisting of evaluat- electrical activity of the brain. ing athletes for heart murmurs, assessing femoral arterial pulses, identifying 14. Rosensweig, 5 A.D.2d at 295. any stigmata of Marfan syndrome, and taking brachial blood pressure mea- surements. The guidelines also outline various cardiovascular abnormalities 15. 137 Misc. 2d 489, 520 N.Y.S.2d 999 (Sup. Ct., N.Y. Co. 1987). and provide recommendations regarding athletic participation in athletes with 16. 639 So. 2d 652 (Fla. Dist. Ct. App. 1994). these conditions. 17. Marfan syndrome is a connective tissue disorder, externally characterized 38. 639 So. 2d 652 (Fla. Dist. Ct. App. 1994). by disproportionately long extremities, and internally characterized by weak- 39. Italy has a formal national pre-participation screening and medical clear- ened walls of the major arteries. This syndrome is among the most common ance program in place, which mandates that young, competitive athletes in congenital heart lesions that have been associated with sudden death during organized sports programs have annual examinations that include a 12-lead sports participation. electrocardiogram, history and physical examination. 18. Gardner, 639 So. 2d at 656.

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Get the Information Edge NEW YORK STATE BAR ASSOCIATION 1.800.582.2452 www.nysba.org/pubs Mention Code: PUB0363 BOOK REVIEW BY ALBERT ROSENBLATT Henry Miller’s More (Cogent Publishing, 2007)

enry Miller is a man of all dramatist and trial lawyer, recognizes a four-star general or commander in seasons but there are scarcely that in human interactions those lines chief, who flourishes in a laissez-faire Henough of them to accom- have a way of getting blurry. capitalist world. The regulatory state is modate his irrepressible creativity: A Take one of the book’s major themes for him an impediment to production; renowned trial lawyer, Miller turned – ambition. The most memorable grad- success is market dominance; utter his sights to the theatre, as an actor uation speech I ever heard dealt with success is utter market dominance. But and writer. Audiences will remember ambition. The orator, president of a those descriptions of Bombly are con- his portraying Clarence Darrow in his small, elite college, argued that ambi- clusory. Miller brings Bombly to life, epic All Too Human; he also wrote stage tion was not a dirty word or a quality painting him bigger than the pages of works about Alger Hiss and James to be deplored. He equated the trait the novel, and through rich dialogue, Joyce. And now, a novel. with initiative, motivation, and accom- presenting him in full-blooded relief: Some lawyers may confess that the plishment. masterful, sly, corrupt, and by the closest they get to reading novels is Miller would affirm that the enemy way, not entirely unlikable. At times, a novel decision from an influential of ambition can be indolence. An you even feel a bit of affection for court. But fiction can sometimes yield ambitious, lazy person will conquer the bastard. This takes a writer’s art, truths more compelling than recorded nothing. But through his protagonist, because one suspects that people like fact or legal exegesis of the kind most Michael Harvey, Miller asks a vexing Bombly are not utterly without socially often reviewed on these pages. question: Ambition, sure, but at what redeeming value. A lesser writer could Lawyers who read only the advance price? And in what realm? Someone not paint with the subtle hues that sheets would do well to put aside 10 may have an ambition to control the Miller uses to present Bombly in living N.Y.3d and for a few hours learn what spread of Lyme disease, or on a more color. It is easier to paint all warts than Henry Miller, through his skillfully modest scale perhaps, the calorie or to present convincingly a dimple or drawn characters, has to say about cholesterol level in hot fudge sundaes. two among them. temptation, virtue, compromise, law, Go for it, we would say. Huge and fascinating as he is, greed, sex, power, betrayal, ambition, But there are other brands of ambi- Bombly is not the book’s central char- justice, love, parenthood, and even the tion we abhor. Ambition to dominate acter. Miller creates the dramatic ten- art of cross-examination. Not neces- or subjugate others: as in Hitler, Stalin, sion by introducing Michael Harvey sarily in that order, and not in equal Saddam Hussein. So, it depends. into Bombly’s world. Michael has measure, but all well represented in People like T. Lawrence Bombly – the all the attributes for success in that a dramatic novel that deals with the tycoon whom Miller detonates off the environment. Handsome, bright, and lives and foibles of lawyers on the fast pages of the novel – present complica- engaging, Michael is the son of Mary track. tions, and that is what makes Miller’s Harvey, who arrived from Ireland on 10 N.Y.3d may offer occasional exploration so cogent. these shores widowed and pregnant glimpses into those subjects, but to We can, of course, visit these issues with Michael. come away with anything satisfying, in an essay or in Ethics 101, but the Mary is not today’s version of the readers would have to get by too many novel, in the hands of a writer like struggling single mom everybody case citations and a great deal of talk Miller, gives the reader much more. admires. She lives through Michael; about collateral estoppel and partial In a classroom we might describe her ambition for him is boundless. summary judgment. Miller, artistic chef T. Lawrence Bombly as a captain of Mary is a cross between Lady Macbeth that he is, deftly mixes and matches his industry or, as Bombly would have it, and a stage mother who would actu- ingredients. Temptation, as we know, is sometimes born of avarice, sometimes not; justice and law often go together Judge ALBERT ROSENBLATT ([email protected]), who now teaches at NYU Law School and but not necessarily; and compromise does arbitrations and mediations at the law firm of McCabe and Mack in Poughkeepsie, served on may be valued when it comes to settle- the New York Court of Appeals from 2000 to 2007, capping a 32-year tenure on the bench. A grad- ment, but not when values themselves uate of the University of Pennsylvania and Harvard Law School, he has produced legal and popular are being settled upon. It takes a good works including a biographical history of the New York Court of Appeals, reviewed in the Journal’s yarn, as this one is, to sort out the March/April 2008 issue. boundary lines, and Miller, veteran

44 | November/December 2008 | NYSBA Journal ally seek out the casting couch. For her, In practice, when officials are con- Michael as merely the country’s vice sidering criminal charges, there often president would be a crushing disap- are poker-game conversations (threats, pointment. bluffs, offers, deals) between prosecu- The stage is set early when Michael tors and their targets. Capturing the meets Bombly, who sees Michael as a dialogue in a priceless nugget, Miller young Wall Street-Harvard Law School treats us to just such a joust between superstar, a perfect candidate to serve the prosecutor and a renowned corpo- as one of Bombly’s lieutenants. But not rate lawyer, himself a potential target: so fast. There is a top lieutenant already “Irving, you wouldn’t indict an old in the picture – Luke Steele, a schem- schoolmate, would you?” ing, two-faced operator who sizes up “Only if he committed a crime.” Michael and immediately measures Miller uses the same corporate law- him for the casket. Steele wants no yer, perched atop the legal hierarchy, rivals, surely not one of Michael’s cali- to ask a question, common in a profes- ber and charm. sion sometimes judged by the metes Miller uses Steele, an Iago of greed, and bounds of attainment: as a counterpoint to the more impres- [The lawyer] saw two longshore- sionable Michael. The author anchors men moving toward the docks as Steele as the standard bearer of the he jogged past Atlantic Avenue. darkest side of wealth and power: They’ll work hard today or soft if acquisition for its own sake, more and the shop steward favors them. No more and more, pathological in its worries to bring home. No ball and insatiability. Against this we witness chain briefcase to carry. They’ll eat Michael’s bout with temptation. good, drink beer, watch T.V., have The bout is held in corporate offic- sex, sleep well. Who’s got the bet- es and even in sexual encounters. ter life, anyway? We meet the two young women in That question is central to the Michael’s life: Gladys, ravishing in red book, and Miller addresses it with and black; and Emmy (Is she up to it? keen insight, weaving a gripping plot, Will she hold me back on the achieve- framed in a fast-moving drama that ment elevator?). would make a great film. On the way up there is trouble, as How would Miller answer the ques- the Bombly organization runs afoul tion? As an astute lawyer and philoso- of the law. There are some transgres- pher, he would likely say: “Well, . . . it sions that even the dependably cor- depends.” ■ rupt senator (“Who should I help, my enemies?”) cannot protect against.

Editor’s Note: Civil Cases 2007 2006 2005 2004 2003 In the article titled “Update Did the Appel- Affi rmed 56 66 55 58 51 late Odds Change in Reversed 27 25 35 37 39 2007?”, by Bentley Kassal Modifi ed 17 9 10 5 10 (Journal, October 2008), the second chart on page Criminal Cases 40 was mislabeled. The heading should have 2007 2006 2005 2004 2003 read “Criminal Cases,” Affi rmed 66 71 70 81 70 not “Civil Cases.” We Reversed 30 17 25 15 21 regret the error. Modifi ed 4 12 5 4 9

NYSBA Journal | November/December 2008 | 45 INDEX TO ARTICLES 2008

This index places each article in one of the following categories. All articles are available online, to members. The articles are listed, alphabetically, by title, followed by the last name(s) and first initial(s) of the author(s); the issue date; and the page number. A word-searchable index to the Journal, for years 2000–2008, is available online at www.nysba.org. Click on “publications,” then Bar Journal. Scroll down, and on the right-hand side click on “Searchable Index by Category (2000-present).”

Administrative Law Constitutional Law International Law Animal Law Consumer Law Labor and Employment Antitrust Law Courts Law Practice Appeals Criminal Law Legal Writing Arbitration / Alternative Dispute Crossword Poetry Resolution Environmental Law Point of View Column Attorney Professionalism Evidence Real Property Law Banking / Finance Law Family Law Science and Technology Bankruptcy Government and the Law Tax Law Books on Law Health Law Torts and Negligence Civil Procedure History Trial Practice Commercial Law Humor – Res Ipsa Jocatur Trusts and Estates Computers and the Law Intellectual Property Women in Law

Appeals Enhancing Victims’ Rights: Crime Victims Compensation, Update: Did the Appellate Odds Change in 2007? Statistics in New York Monachino, B., Mar./Apr. 2008, p. 36 State and Federal Courts, Kassal, B., Oct. 2008, p. 40 Environmental Law Arbitration / ADR (see also Labor and Employment) Riverkeeper v. Planning Board of the Town of Southeast: The When Discovery Seems Unavailable, It’s Probably Available, Court of Appeals Reminds Lower Courts Not to Second-Guess SEQRA Marrow, P., Oct. 2008, p. 44 Determinations, O’Rourke, R.; Phillips, E., Jul./Aug. 2008, p. 18 Attorney Professionalism Wildlife Conservation Under the Lacey Act: International Cooperation or Forum, Committee on Attorney Legal Imperialism?, Rocco, V., May 2008, p. 10 Professionalism, Jan.–Nov./Dec. 2008 Evidence Books on Law Burden of Proof – “Be Careful What You Wish For,” Goldfeder’s Modern Election Law (Jerry H. Goldfeder), Horowitz, D., June 2008, p. 21 Leventhal, H., Jul./Aug. 2008, p. 44 Burden of Proof – “Can’t We Just Talk?”, Henry Miller’s More, Rosenblatt, A., Nov./Dec. 2008, p. 44 Horowitz, D., Feb. 2008, p. 20 Judges of the New York Court of Appeals, The: A Biographical History Burden of Proof – “Dad, There Is Something I Have to Tell You,” (Albert M. Rosenblatt, editor in chief), Treanor, W.; Horowitz, D., Jan. 2008, p. 50 Keurian, M., Mar./Apr. 2008, p. 48 Burden of Proof – “Dead [Wo]men Do Tell Tales,” Horowitz, D. Oct. 2008, p. 20 Commercial Law Burden of Proof – Don’t Cry Over Spilt Milk!, Contours of Common-Law Dissolution in New York, The, Horowitz, D., Jul./Aug. 2008, p. 14 Halpern, P., Mar./Apr. 2008, p. 23 Burden of Proof – Help Is Here, Whether You Want It or Not, Making Sense of New York’s Corporate Opportunity Doctrine, Horowitz, D., Sept. 2008, p. 16 Rosenberg, J.; Burr, K., June 2008, p. 10 Burden of Proof – “Old Dogs, Old Tricks,” Members of a Limited Liability Company May Now Commence Derivative Horowitz, D. Mar./Apr. 2008, p. 20 Actions on Behalf of the LLC, Peirez, D.; Burden of Proof – Some Deposition Nuts & Bolts, Schaich, G., Jul./Aug. 2008, p. 38 Horowitz, D. Nov./Dec. 2008, p. 32 Computers and the Law (see also Intellectual Property Law) Burden of Proof – Tricks of the Trade, Horowitz, D., May 2008, p. 18 Computers & the Law – Doctrine of Conversion Applies to Electronic Family Law Property, Miranda, D., Feb. 2008, p. 47 Advancing Juvenile Justice Reform in New York: A Proposed Model, Computers & the Law – Electronic Witnesses: The Use of Event Data Corriero, M.; Hamanjian, A., Jan. 2008, p. 20 Recorders in Motor Vehicle Accidents, Casey, B., May 2008, p. 45 Call to Action, A: The Cradle to Prison Pipeline Crisis, Consumer Law Wright Edelman, M., Jan. 2008, p. 32 New York State Consumer Protection Law and Class Actions – Child Custody in Contested Matrimonials, Part I, Dickerson, T., Feb. 2008, p. 42 Silbermann, J., Jan. 2008, p. 16 New York State Consumer Protection Law and Class Actions – Children in Poverty: Prison Inmates or Positive Outcomes, Part II, Dickerson, T., May 2008, p. 39 Canada, G., Jan. 2008, p. 39 Conquering Youth Violence, Wiley, M., Jan. 2008, p. 35 Courts Decade of Reform in the New York State Family Courts, A, Lauria, J.; Campaign for Fiscal Equity, 2003, Morris, M., Nov./Dec. 2008, p. 30 Townsend, S., Jan. 2008, p. 46 Immuno AG., 1989–1991, Johnson, L., Nov./Dec. 2008, p. 20 Function of the Attorney for the Child, Carter, J., Jr., Jan. 2008, p. 42 Jacob, 1995, Kaplan, R., Nov./Dec. 2008, p. 22 Investing in Our Children: A Key to a Prosperous New York, Jamaica Public Service Co., 1998, Feinberg, J., Nov./Dec. 2008, p. 24 Spitzer, E., Jan. 2008, p. 12 Judith S. Kaye, Card, S., Nov./Dec. 2008, p. 10 New York State Parent Education and Awareness Program, Kihl, 1999, and Its Progeny, Schecter, J., Nov./Dec. 2008, p. 26 The, Frazee, E.; Pollet, S., Jul./Aug. 2008, p. 26 Smith, 1984, Hoppe, G.; O’Connor, D., Nov./Dec. 2008, p. 18 Our Children, Our Future: Issue Editor’s Introduction, Kaye, J. Jan. 2008, p. 10 Criminal Law Preparing Young Citizens for Democracy, Sherman, J.; 2007 Criminal Law Legislation, Kamins, B., Feb. 2008, p. 35 Hack, D., Jan. 2008, p. 24

46 | November/December 2008 | NYSBA Journal What Will It Take?: Improving the Lives of All New York’s Children, Do’s, Don’ts, and Maybes: Legal Writing Punctuation — Part III, Golden, O., Jan. 2008, p. 28 Lebovits, G., May 2008, p. 64 Do’s, Don’ts, and Maybes: Usage Controversies — Part I, Health Law Lebovits, G., June 2008, p. 64 Prognosis for Recovery, The: Health Insurance Subrogation, Do’s, Don’ts, and Maybes: Usage Controversies — Part II, Hourihan, E., Jr.; Zeitounzian, K., May 2008, p. 22 Lebovits, G., Jul./Aug. 2008, p. 64 History Fact vs. Fiction: Writing the Facts — Part I, Eugene C. Gerhart (1912–2007), Jackson Biographer, Lebovits, G., Sept. 2008, p. 64 Barrett, J., Feb. 2008, p. 26 Fact vs. Fiction: Writing the Facts — Part II, In Memoriam: Eugene C. Gerhart, Jan. 2008, p. 70 Lebovits, G., Oct. 2008, p. 64 Law Day 2008 – “The Rule of Law,” May 2008, p. 48 Language Tips Column, Block, G. Jan.–Nov./Dec. 2008 Remembering James M. Flavin: The Origins (and Unintended Plain English: Eschew Legalese, Lebovits, G., Nov./Dec. 2008, p. 64 Consequences) of Online Legal Research, Spivey, G., Feb. 2008, p. 10 Real Property Law Rewriting History: The Trial of Susan B. Anthony, Metes and Bounds – Of Keystrokes and Ballpoints: Real Estate and the Kaye, J., Oct. 2008, p. 38 Statute of Frauds in the Electronic Age, Intellectual Property (see also Computers and the Law) Maker, W., Jr., Jul./Aug. 2008, p. 46 Intellectual Property Considerations in the Outsourcing Industry, Tax Law Chothani, P., Mar./Apr. 2008, p. 30 Property Tax Perspectives: Local Property Taxes – A Political Problem Personal Images: The Professional Athlete’s Right of Publicity, Masquerading as a Tax Problem, Coffey, J., Oct. 2008, p. 23 Johnson, J., Mar./Apr. 2008, p. 10 Property Tax Perspectives: Local Property Taxes – Improving an Thou Shalt Not Steal: A Primer on Music Licensing, Important Revenue Source, Reschovsky, A.; Johnson, J., June 2008, p. 23 Youngman, J., Oct. 2008, p. 27 International Law Tax Alert – The ABCs of Charitable Conservation Easements, Intellectual Property Considerations in the Outsourcing Industry, Wood, R., Jan. 2008, p. 56 Chothani, P., Mar./Apr. 2008, p. 30 Torts and Negligence Labor and Employment 2007 Insurance Law Update: Uninsured, Underinsured and But You Promised Me a Promotion: Are False Inducements Actionable in Supplementary Uninsured Motorist Law – Part I, At-Will Employment?, Hamid, J., Oct. 2008, p. 10 Dachs, J., June 2008, p. 34 Independent Contractor or Employee? The Multiple Issues Involved in 2007 Insurance Law Update: Uninsured, Underinsured and Independent Contractor Status, Wood, R., June 2008, p. 28 Supplementary Uninsured Motorist Law – Part II, Dachs, J., Jul./Aug. 2008, p. 30 Saving Clients From Themselves: Immigration Compliance Is Less About Immigration Law Than Good Legal Advice, Bunker, J., Feb. 2008, p. 30 Averting Disaster: Techniques for Analyzing Business Interruption Claims, Kranzler, R., Oct. 2008, p. 32 Law Practice Streamlining Evidence: Alternative Methods of Authenticating Medical Changing Nature of Leadership in Law Firms, The, Records in Tort Actions, Noonan, B., May 2008, p. 30 Smith, R.; Marrow, P., Sept. 2008, p. 33 Whole Different Ballgame, A, . . . Or Is It? Medical Malpractice and the eLawyering: Providing More Efficient Legal Services With Today’s Modern-Day Athlete, Di Luca, T., Nov./Dec. 2008, p. 34 Technology, Granat, R., Sept. 2008, p. 20 Trusts and Estates Ethics of Outsourcing, The, Feigenbaum, A., Sept. 2008, p. 48 Planning Ahead – Power of Attorney: An Important Estate Planning How to Lose a Client in 10 Steps, Friedman, R.; Document, Mariani, M., Oct. 2008, p. 47 Miller, C., Jul./Aug. 2008, p. 10 Planning Ahead – Second Circuit Clarifies Scope of Probate Exception to Law Practice Management: Personal Management Skills: Getting the Federal Jurisdiction, Penzer, E.; Santoro, F., Jan. 2008, p. 52 Most Out of Every Day, Munneke, G., June 2008, p. 44 Planning Ahead – Vacating Surrogate’s Court Judgments, Orders and Law Practice Management: What Does the Future Hold?, Decrees, Penzer, E.; Harper, R., Jul./Aug. 2008, p. 41 Munneke, G., Sept. 2008, p. 10 Planning Ahead – What’s a Distributee to Do? Renunciation and the Legal Research: Local Legal Research in New York, Dead Man’s Statute, Cooper, I.; La Ferlita, J., Mar./Apr. 2008, p. 44 Manz, W., May 2008, p. 36 Managing and Marketing a Practice in a Globalized Marketplace for Professional Services, Munneke, G., Sept. 2008, p. 39 Practice Group Management: Passing Fad or Permanent Part of Our Future?, Lambreth, S., Sept. 2008, p. 28 Presentation Skills for Lawyers: “Can You Hear Me Now?” Help the Audience Hear Your Message, Wilcox, E., Oct. 2008, p. 51 Presentation Skills for Lawyers: Roadmaps: Organizing Your Presentation, Wilcox, E., June 2008, p. 53 Presentation Skills for Lawyers: The Present Tense: Make It Happen Right Now!, Wilcox, E., Feb. 2008, p. 49 Professional Staffing in the 21st Century, Greene, A.; Boyer, S., Sept. 2008, p. 43 Legal Writing Do’s, Don’ts, and Maybes: Legal Writing Grammar — Part II, Lebovits, G., Jan. 2008, p. 80 Do’s, Don’ts, and Maybes: Legal Writing Punctuation — Part I, Lebovits, G., Feb. 2008, p. 64 Do’s, Don’ts, and Maybes: Legal Writing Punctuation — Part II, Lebovits, G., Mar./Apr. 2008, p. 64

NYSBA Journal | November/December 2008 | 47 INDEX TO AUTHORS 2008

The following index lists the authors of all articles that have appeared in the Journal since the January 2008 edition. Below each author’s name is the general classification category used for the article. The headline describing the content of the article appears under that classification category in the Index to Articles that begins on page 58.

Barrett, John Q., Harper, Robert M., O’Rourke, Richard L., History Feb. 2008, p. 26 Trusts & Estates Jul./Aug. 2008, p. 41 Environmental Law Jul./Aug. 2008, p. 18 Block, Gertrude Hoppe, Gary, Peirez, David H., Legal Writing Jan.–Nov./Dec. 2008 Courts Nov./Dec. 2008, p. 18 Commercial Law Jul./Aug. 2008, p. 38 Boyer, Sandra J., Horowitz, David Paul, Penzer, Eric W., Law Practice Sept. 2008, p. 43 Evidence Jan.–Nov./Dec. 2008 Trusts & Estates Jan. 2008, p. 52 Trusts & Estates Jul./Aug. 2008, p. 41 Bunker, John R., Hourihan, Edward P., Jr., Labor and Employment Feb. 2008, p. 30 Health Law May 2008, p. 22 Phillips, Edward J., Environmental Law Jul./Aug. 2008, p. 18 Burr, Kendall, Johnson, James A., Commercial Law June 2008, p. 10 Intellectual Property June 2008, p. 23 Pollet, Susan L., Family Law Jul./Aug. 2008, p. 26 Canada, Geoffrey, Intellectual Property Mar./Apr. 2008, p. 10 Family Law Jan. 2008, p. 39 Johnson, Laura, Reschovsky, Andrew M., Tax Law Oct. 2008, p. 27 Card, Skip, Courts Nov./Dec. 2008, p. 20 Courts Nov./Dec. 2008, p. 10 Kamins, Barry, Rocco, Victor J., Environmental Law May 2008, p. 10 Carter, John E., Jr., Criminal Law Feb. 2008, p. 35 Family Law Jan. 2008, p. 42 Kaplan, Roberta A., Rosenberg, Jonathan, Commercial Law June 2008, p. 10 Casey, Brian D., Courts Nov./Dec. 2008, p. 22 Computers & the Law May 2008, p. 45 Kassal, Bentley, Rosenblatt, Albert, Books on Law Nov./Dec. 2008, p. 44 Chothani, Poorvi, Appeals Oct. 2008, p. 40 Intellectual Property/International Law Kaye, Judith S., Santoro, Frank T., Mar./Apr. 2008, p. 30 Family Law Jan. 2008, p. 10 Trusts & Estates Jan. 2008, p. 52 Coffey, James J., History Oct. 2008, p. 38 Schaich, Gabrielle R., Tax Law Oct. 2008, p. 23 Keurian, Mark A., Commercial Law Jul./Aug. 2008, p. 38 Cooper, Ilene S., Books on Law Mar./Apr. 2008, p. 48 Schecter, Jennifer G., Trusts & Estates Mar./Apr. 2008, p. 44 Kranzler, Russell, Courts Nov./Dec. 2008, p. 26 Corriero, Michael A., Torts & Negligence Oct. 2008, p. 32 Sherman, Jacqueline, Family Law Jan. 2008, p. 20 La Ferlita, Joseph T., Family Law Jan. 2008, p. 24 Dachs, Jonathan A., Trusts & Estates Mar./Apr. 2008, p. 44 Silbermann, Jacqueline W., Torts & Negligence June 2008, p. 34 Lambreth, Susan Raridon, Family Law Jan. 2008, p. 16 Torts & Negligence Jul./Aug. 2008, p. 30 Law Practice Sept. 2008, p. 28 Smith, Roland B., Dickerson, Thomas A., Lauria, Joseph M., Law Practice Sept. 2008, p. 33 Consumer Law Feb. 2008, p. 42 Family Law Jan. 2008, p. 46 Spitzer, Eliot, Consumer Law May 2008, p. 39 Lebovits, Gerald, Family Law Jan. 2008, p. 12 Di Luca, Tara R., Legal Writing Jan.–Nov./Dec. 2008 Spivey, Gary D., Torts & Negligence Nov./Dec. 2008, p. 34 Leventhal, Howard G., History Feb. 2008, p. 10 Feigenbaum, Alan, Books on Law Jul./Aug. 2008, p. 44 Townsend, Sharon S., Law Practice Sept. 2008, p. 48 Maker, William, Jr., Family Law Jan. 2008, p. 46 Feinberg, Jeremy R., Real Property Law Jul./Aug. 2008, p. 46 Treanor, William M.; Courts Nov./Dec. 2008, p. 24 Manz, William H., Books on Law Mar./Apr. 2008, p. 48 Forum, Committee on Attorney Law Practice May 2008, p. 36 Wilcox, Elliott, Professionalism, Mariani, Michael M., Law Practice Feb. 2008, p. 49 Jan.–Nov./Dec. 2008 Trusts & Estates Oct. 2008, p. 47 Law Practice June 2008, p. 53 Law Practice Oct. 2008, p. 51 Frazee, Evelyn, Marrow, Paul Bennett, Family Law Jul./Aug. 2008, p. 26 Arbitration Oct. 2008, p. 44 Wiley, Meredith, Friedman, Richard B., Law Practice Sept. 2008, p. 33 Family Law Jan. 2008, p. 35 Law Practice Jul./Aug. 2008, p. 10 Miller, Carla M., Wood, Robert W., Golden, Olivia, Law Practice Jul./Aug. 2008, p. 10 Labor and Employment June 2008, p. 28 Tax Law Jan. 2008, p. 56 Family Law Jan. 2008, p. 28 Miranda, David P., Granat, Richard S., Computers & the Law Feb. 2008, p. 47 Wright Edelman, Marian, Family Law an. 2008, p. 32 Law Practice Sept. 2008, p. 20 Monachino, Benedict J., Greene, Arthur G., Criminal Law Mar./Apr. 2008, p. 36 Youngman, Joan, Tax Law Oct. 2008, p. 27 Law Practice Sept. 2008, p. 43 Morris, Matthew J., Hack, Dory, Courts Nov./Dec. 2008, p. 30 Zeitounzian, Kareen, Health Law May 2008, p. 22 Family Law Jan. 2008, p. 24 Munneke, Gary, Halpern, Philip M., Law Practice June 2008, p. 44 Commercial Law Mar./Apr. 2008, p. 23 Law Practice Sept. 2008, p. 10; p. 39 Hamanjian, Alison M., Noonan, Bran C., Family Law Jan. 2008, p. 20 Torts & Negligence May 2008, p. 30 Hamid, Jyotin, O’Connor, Darren, Labor & Employment Oct. 2008, p. 10 Courts Nov./Dec. 2008, p. 18

48 | November/December 2008 | NYSBA Journal “My NYSBA membership is invaluable for the beneﬁ ts that it offers me as a solo practitioner—the professional camaraderie and the highest quality of continuing legal education offerings by some of the best in the business is unparalleled.”

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50 | November/December 2008 | NYSBA Journal LANGUAGE TIPS BY GERTRUDE BLOCK

uestion: The verb to curate has added the figurative sense, “to have that language we change it, and some sets my teeth on edge. a substantial effect upon,” a meaning of those changes are handed down QPerhaps even worse is the too recent to be included in The Oxford to subsequent generations, who will “verb phrase to four-lane. I wince when English Dictionary. In the 1985 edition make their own changes. I am “verbed.” Your comment about of The American Heritage Dictionary, the these monstrosities? influential Usage Panel pronounced Potpourri Answer: Many readers “wince” that sense of the verb impact “unaccept- Overheard in New York City and when words that were only adjectives able.” But journalists could hardly do reported in the New York Times: are used as verbs (as in to four-lane) and without it. A group of construction workers when people coin verbs (like to curate) Candidate John McCain announced were sitting on a terrace wall on from nouns like curator. recently that he would “pause the bat- 52nd Street, outside the CBS build- The reader’s comment may refer to tle” for the presidency by taking a short ing. One man pulled a cell phone Humpty Dumpty’s response in Through vacation. The noun pause has been from his pants pocket. Another the Looking Glass: “I love verbing; verb- a respectable verb to pause for many said, “Hey, you shouldn’t carry ing weirds words.” Most people would years, but only an intransitive verb (a that in your pocket; it could make disagree with Humpty Dumpty. Every verb that does not take an object). In you impudent.” time a new word arrives, readers send current usage, he would have had to That’s a new meaning that prob- e-mails in protest, but if the word say, “pause in the battle for the presi- ably will not last. ■ becomes popular, the e-mails stop dency.” Instead, Senator McCain used coming. pause as a transitive verb (a verb that GERTRUDE BLOCK is lecturer emerita at the How do you feel, for example, about takes an object), so at first that usage University of Florida College of Law. She is the the word remote, which used to be only looks strange. But if it becomes com- author of Effective Legal Writing (Foundation an adjective, but is now also a noun, mon, we will get used to it. Press) and co-author of Judicial Opinion Writing as in “Where’s the remote?” No doubt A recent newspaper headline pro- (American Bar Association). Her most recent book is Legal Writing Advice: Questions and the verb to contract seems standard to claimed, “Voters rebuffed the proposal Answers (W. S. Hein & Co., 2004). you, but when Benjamin Franklin first to raise taxes.” heard it, he objected. And as recently The verb rebuff comes from the as 30 years ago one elderly law profes- Old French verb “to reprimand.” sor would not allow his students to Dictionaries currently define rebuff as Foundation Memorials use that “neologism” in class, insisting “to refuse bluntly, to snub.” So current- that contract was only a noun. Today ly, it makes no sense to rebuff “things” fitting and lasting tribute to a deceased A lawyer can be made through a memorial the literal meaning of the verb to con- like taxes – you can only rebuff the contribution to The New York Bar Foundation. tract remains “to compress, shrink, or persons who propose them. This highly appropriate and meaningful ges- reduce,” but the figurative meaning: Neologisms amuse some people ture on the part of friends and associates will be felt and appreciated by the family of the “to enter into an agreement” is prob- and irritate others. Whether they deceased. ably more common. become acceptable depends not on an Contributions may be made to The New The word party began as a noun. But edict by some authority but on pub- York Bar Foundation, One Elk Street, Albany, now it can also be a verb (to party), and lic acceptance. Back in 1776, George New York 12207, stating in whose memory it is made. An officer of the Foundation will notify a verb phrase, to hard-party. But if you Campbell wrote in his Philosophy of the family that a contribution has been made and party, you’d better not hard-party, for Rhetoric that to be “correct,” language by whom, although the amount of the contri- newspapers tell us that tendency almost must be “national, reputable, and pres- bution will not be specified. lost a Miss U.S.A. contest-winner her ent.” Campbell meant by “national,” All lawyers in whose name contributions crown. She may have been having too language that is widely used through- are made will be listed in a Foundation Memorial Book maintained at the New York much fun, which started as a noun, but out the country; by “reputable,” the State Bar Center in Albany. In addition, the is now also an adjective (a fun time) and language of educated, literate persons; names of deceased members in whose mem- even a verb: “They funned it up.” and by “present,” language in current ory bequests or contributions in the sum of $1,000 or more are made will be permanently At first impact was only a noun, mean- use, a definition so reasonable that it is inscribed on a bronze plaque mounted in the ing “collision.” Then the noun became still accepted today. Memorial Hall facing the handsome courtyard a verb, the past participle of which But words, newly created or newly at the Bar Center. meant “firmly fixed.” It was defined in used, amuse some people, irritate oth- The Oxford English Dictionary with its ers, and are ignored by many. We literal meaning in the context, “A stone- inherit our language from the gen- like mass which had become impacted erations that preceded us, and we learn in the ilium.” Currently, the verb impact it at our mother’s knee. As we use

NYSBA Journal | November/December 2008 | 51 ATTORNEY PROFESSIONALISM FORUM

To the Forum: mitment to the pro bono matter you Both the New York Lawyer’s Code I am an associate at a major law firm have described. of Professional Responsibility and the working on a pro bono matter. Our cli- Although the provision of pro bono American Bar Association encourage ent, who is currently serving a lengthy services is a “basic tenet of the profes- lawyers to dedicate a certain amount prison sentence, is seeking to vacate his sional responsibility of lawyers,” EC of time, 20 and 50 hours respectively, conviction and to obtain a new trial. 1-1, many lawyers feel constrained by to providing pro bono services to indi- In accord with firm guidelines, and the demands of billable-hour require- viduals of limited financial means. See with the assistance of the pro bono ments. There is, therefore, an inherent EC 2-34; ABA Model Rule 6.1. You committee, I had completed certain tension between the professional goals may want to consider dedicating 20 required forms that had to be submit- to serve the community and a lawyer’s to 50 hours outside of the billable ted before the firm would approve status within a firm or organization. hour framework, provided, of course, taking on the case. The firm approved Your question aptly describes that ten- that you confirm that your representa- the request and allotted 200 hours for sion. tion in this capacity is covered by the which attorneys working on the matter Specifically, you have asked if your firm’s relevant malpractice policies. will get billable hour credit. The firm, related concerns regarding your sta- Additionally, you might consider add- however, specified that the approval tus in the firm, and getting credit for ing other attorneys to your team who covered only the client’s appeal. Thus, future pro bono work for your client, have not yet met their 200-hour limit. if we are successful in our motion for a present a conflict of interest in light The additional staffing would allow new trial, our client is obliged to seek of the 200-hour limit. As I am sure you to stay involved, but also permit separate representation to handle that you are aware, you are obligated to you to focus more of your time toward new trial. represent your client’s interests zeal- billable work. I have been working on the mat- ously. See DR 7-101(A). Moreover, DR You have also asked whether the ter for several months, and I expect 5-101(A) prohibits a lawyer from confirm’s substantive and temporal limita- to exceed the firm’s 200-hour limit. tinued representation of a client if that tions on the representation are proper. Although I can request firm approval lawyer’s own financial, business, prop- Provided that full disclosure was made for additional hours to be credited erty, or personal interests will impair to the client, preferably in the written towards my billable hour total, I am the lawyer’s independent professional concerned that the firm will not view judgment in the lawyer’s representa- the request favorably. However, if I tion of the client. DR 5-101(A). The Attorney Professionalism Committee do not request firm approval for addi- If you do not seek and obtain invites our readers to send in comments tional hours and continue to work on approval for additional hours to be or alternate views to the responses the appeal, there is a potential conflict credited toward your billable hour printed below, as well as additional between time that I spend working on requirements, your judgment in rep- hypothetical fact patterns or scenarios to the appeal and time that I spend work- resenting your client likely will be be considered for future columns. Send ing for paying, billable clients. Finally, impaired given your concern about your comments or questions to: NYSBA, even though our client is fully aware your standing in the firm. Indeed, as One Elk Street, Albany, NY 12207, Attn: that our representation will not extend one commentator noted, “most law- Attorney Professionalism Forum, or by to a new trial, he has said on more yers do not enhance their status within e-mail to [email protected]. than one occasion that he wants us to the firm by handling high-profile pro This column is made possible through continue our representation if the new bono cases and therefore must weigh the efforts of the NYSBA’s Committee on trial is granted. the costs of spending time away from Attorney Professionalism. Fact patterns, Is it appropriate for me to continue billable work against the personal and names, characters and locations presented handling this matter in light of the professional benefits that it confers.” in this column are fictitious, and any resem- potential conflicts of interest raised by Scott L. Cummings, The Politics of Pro blance to actual events or to actual persons, the firm’s billable hour limit? Was it Bono, 52 UCLA L. Rev. 1, 136 (2004). living or dead, is entirely coincidental. These appropriate for us to limit the scope Your reputation within the firm and columns are intended to stimulate thought of our client’s representation to handle your commitment to billable work is and discussion on the subject of attorney only his appeal? an understandable concern, particu- professionalism. The views expressed are Sincerely, larly in difficult economic times. Thus, those of the authors, and not those of the Committed to Pro Bono your continued representation of the Attorney Professionalism Committee or client likely presents an impermissible the NYSBA. They are not official opinions Dear Committed to Pro Bono: conflict of interest. However, before on ethical or professional matters, nor As an initial matter, you and your firm you take steps to end your representa- should they be cited as such. should be commended for your com- tion, please consider the following.

52 | November/December 2008 | NYSBA Journal Are You feeling retainer letter, the substantive limitation is ethical. See, e.g., NYSBA Comm. on QUESTION FOR THE overwhelmed? Professional Ethics, 604 (1989) (NYSBA NEXT ATTORNEY Op.) (holding that it is “not unethical PROFESSIONALISM FORUM: The New York State Bar for a lawyer to limit the scope of rep- Association’s Lawyer Assistance resentation in a criminal matter to the I am partner in a general practice grand jury stage”). However, please firm that has been representing, suc- Program can help. note that EC 2-40 encourages lawyers cessfully, a particular client in litiga- who accept representation to “com- tion and transactional matters for sev- We understand the competition, con- plete the work involved” and further eral years. The representation has been stant stress, and high expectations encourages trial counsel to continue generally known by members of our you face as a lawyer, judge or law to represent the client throughout the local county bar association. student. Sometimes the most dif- appeals process “unless new counsel Our relationship with the client ficult trials happen outside the court. is substituted or withdrawal is permit- has been good. In addition, we have Unmanaged stress can lead to prob- ted by the appropriate court.” EC 2-40. participated with the client in several lems such as substance abuse and Although not factually on point, EC high-profile community projects, and depression. 2-40 suggests that your client has a so have become identified as the attor- NYSBA’s LAP offers free, confidential right to full representation during the neys for that client in the community help. All LAP services are confidential appeal and at a new trial. If the firm is at large. and protected under section 499 of not on board with representing your Recently, it has come to my atten- the Judiciary Law. client at a new trial, it is recommended tion that one of my bar association col- that you take the steps necessary to leagues (with whom I have no present locate new and competent counsel to cases) has been pursuing my client. I Call 1.800.255.0569 represent your client post-appeal. became aware that the client has been Finally, based on the facts as you entertained by this colleague with trips NEW YORK STATE BAR ASSOCIATION LAWYER ASSISTANCE PROGRAM have presented them, the firm’s tem- to the theatre, and has been invited, as poral limitation does not apply to the my colleague’s guest, to golf, tennis and client’s representation as a whole but basketball games, as well as to commu- only to each individual lawyer’s con- nity fund-raisers. Indeed, my client has tribution. As such, there are no ethical indicated that she has become quite or professionalism concerns raised by friendly with this colleague, whom she the 200-hour limit. If, however, the now considers to be a “golfing buddy firm limited representation of your and a good friend.” Recently, my client client in the appeal to a firmwide total indicated that when she complained of 200 hours, there may be questions about a business problem during a about the firm’s ability to competently round of golf my colleague had sug- represent your client. See, e.g., ABA gested that her firm might better rep- Model Rule 1.2 cmt. 7 (stating that “an resent my client’s business interests. I agreement for limited representation resent this obvious “poaching” attempt does not exempt a lawyer from the to take my client as her own. duty to provide competent representa- My firm and I have been most loyal tion”). to our client during our many years of In conclusion, in deciding whether service, and I wonder – do any ethical or not you should continue handling or professionalism grounds exist that this matter you must weigh the facts might preclude this “theft of client” and the options at your disposal, seek effort by my competitive colleague? the counsel of trusted attorneys at Sincerely, your firm, and determine the course of Feeling Victimized action that will best serve your client’s interests. The Forum

NYSBA Journal | November/December 2008 | 53 NEW MEMBERS WELCOMED

FIRST DISTRICT Sandra Bjegovic Davon Collins Natalie Imarielle Erbe Andrew Daniel Goldstein Joseph Walter Aaker Genevieve Elaine Blake Lisamarie Frances Collins Rosa Maria Ertze Garcia Daniel Murray Gonen David G. Abrams Ari Benjamin Blaut Melissa Colon-Bosolet Peter Fredenrico Estacio Mariano Granato Elizabeth Denise Acorn Kathryn-ann Bloomfield Miriam S. Colton Larissa Anne Eustice Ilmi Granoff Damaris Betty Acosta Katherine Blostein Nicole Lynn Confinante Tiffany Marie Evans Anthony Dominick Greco Priya B. Adhinarayanan Kerri Rose Blumenauer Dashene Anton Cooper Eric Fabricant Rory Garrett Greebel Jacob A. Adlerstein Seth Daniel Blumenthal Jennifer D. Coron Mina Monica Farbood Alexis Lorraine Yousuf Pervaiz Aftab Richard Stephen Boatti Andrew Peter Timothy Alfred L. Fatale Greenberg Sumita Ahuja Peter Chris Bockos Costello Marcel Rene Fausten Jennifer Greenberg Maria Ait Phillip Joseph Bongiorni Richard Matthew Cowell Jonathan Dante Fazzone Laura Beth Greenberg Jason Robert Alderson Matthew Steven Brianna Joy Cox Judah Eric Feder Andrea Michelle John Pence Alexander Bonovich Christine Creamer Anton Feingold Griswold Cristina De Marigny Joshua Bornstein James Michael Crowe Nicholas Esteban Ferrer Robert Adam Gross Alger Timothy Bostick Tanya Marie Curcio Francisco Javier Fierro William Paul Gross Humberto Allemant Salas Alejandro Botero Angel Amy F. Curry Jon Finelli Laura S. Grosshans Andrew John Allen Camille Boulanger Tytus Cytowski Kate Anne Fischer Veronica Beth Guitar Anya Nicole Yvette Allen Erin Marie Bradrick Alexander William Omri Yaniv Flicker Marc Ethan Haas Sarah Allison Brendan Owen Brammall D’Amico Susanna S. Fodor Daniel Lee Hadjinian Marissa Alter-Nelson Matthew Decker Brice Maria Fernanda Lima Da Robert Davis Forbes Joshua Gary Hafetz Aurora Andrea Alvarez- Adam D. Britt Rocha Barros Justin Daniel Forlenza Alexander Hakopian Calderon Vanessa Anne Pompei Sarah Stickney Dale Timothy Gerard Fourteau Christopher Mackay Pedro Bohrer Amaral Britt Eileen Mary Daly Ilya Fradkin Halfnight Todd David Charles Amie Nicole Broder Stacey Daniel Christopher Nicholas Dana Haruko Hamada Anderman Vigdis Bronder Amy Elizabeth Danner Franciose Cristin F. Hambidge Joshua Dillon Anders Kaitlin Patricia Brophy Amandine Darras Gregory Alan Frank Michael Domenico Morgan Kelly Anderson Kelly Lynn Brown Jill Santos David Joshua Menashe Frankel Hamersky Robert Reeves Anderson Kevin Andrew Brown Stefano Enrico De Stefano Chanel Helene Frazier Elijah J. Hammans Selina Denise Andrews Sheryl Anne Brown James Durand Dealy Lisa Ann Freeman Paula Soojung Han Meghan Diperna Andry Keri Susanne Bruce Mary Katherine Dear Lisa Michelle Freeman Timothy Joseph Haney Alexandra Aquino-Fike Matthew Adam Bruckner Julie Elizabeth Dechen Anson Barrett Kelsey Marie Hanrahan Vinod S. Aravind Ariane Roshan Agnes Manon M. Defelice Frelinghuysen Kristina Marie Hanson Vivian Arias Buglione David Ryan Dehoney Elyssa Friedland Grace Ann Harbour Katherine F. Arthur Jade Anne Burns Grace Del Val Jed W. Friedman Allison Brooke Harder Patrick Coby Ashby Allison Joan Cambria Ester Del Valle Izquierdo Jeremy Scott Friedman Sean Michael Harrigan Laura-lee Atkinson-Hope Meghan E. Cannella Emily Kristine Den Kelly Margaret Frisch Amina Hassan Jonathan Brian Austin Julie Diane Capehart Herder Zhaohui Fu Nicole V. Hauge Akilesh Ayyar Donald Padraic Casey Ethan Michael Denny Elissa Paulette Fudim Bridget Joy Hauserman Lauren Elizabeth Baer Scottie Celestin George G. Depountis Jennifer Ann Fuerch Scott Allen Heard Matthew Haynes Baer Hye-kyung Monica Neil Pravin Desai Shane Daniel Fuhrman Emilie Ann Hendee Carrie Moore Baker Chang Amanda Lynn Devereux Donald Branch Furtado Michelle Lee Hertz Jonathan C. Balcom Laura Lu Chang Krishen Achuthan Michael Vincent Galante Susannah Griffin Rian Jensine Balfour Gwendolynne M. Chen Devidoss Michelle Marie Galvez Heyworth Abimbola Subuola Victoria Yu Pei Chen Justin S. Diamant Marguerite Ellsworth Brian David Hirsch Bamgboye Stephen Cheng Damaris M. Diaz Gardiner Lauren Anne Hirschfeld Katharine Banasikowska Geoffrey Chepiga Antonio Lorenzo Diaz- Laura Elizabeth Gardner Yi-zu Elaine Ho Erin Bansal Joy Li-fen Chia Albertini Christopher Charles David Robrich Hoffman Jessica Anne Barcus Ellen Ngayu Ching Alexander G. Diaz-Matos Gartman Cory Leonard Hojka Khianna Nadenne Madhura J. Chivate Delavan James Dickson Stephanie Leeann Gase Michelle M. Holman Bartholomew Maaren Alia Choksi Brenda DiLuigi Brian Michael Gatta Alison B. Hornstein Geoffrey Bauer Lyndsey R. Cholak Fasih Ud Din Heloise Gautier Jance P. Hoy Timothy Charles Bauman Nusrat Jahan Choudhury Andrew Ditchfield Lauren Leal Gehr Tabea Y. Hsi Lea Malani Bays Steven Christoforou Heather Dominguez Alexandra Haley Kevin Shawn Hsu Amy Susan Beard Caleb W. Christopher Faie Reiko Dorin Gellman Ellen Chao Hu Melanie Belman-Gross Gina Yolanda Ciraldo Neasa Doyle Gabrielle Koller Genauer Shin Y. Hur Daniel Fernando Evan Benjamin Citron Timothy George Doyle Nicholas Dennis George Safia Nahid Hussain Benavides Kathleen B. Clancy Jonathan Scott Drucker Vincent Louis Georgetti Philander Huynh Jillian L. Benda Ryan A. Clark Ming Du Anthony Geron George Gunho Hwang Rebecca L. Berkebile Lance A. Clarke Shoshana Dubey Isy-india Geronimo Henry Sa-lin Hwang Evan Ross Berman Aaron David Cohen Cyrus E. Dugger Allison Joy Gersten Jaisohn Jungbin Im Eric Matthew Berndt Alyssa Brooke Cohen Jessica Lauren Dunn Nizan Geslevich Irmak Ince Henry T. Berry Evan I. Cohen Julie A. Ebenstein Bruce Andrew Glassberg Marcia Isaacson E. Dana Betz Harris Lee Cohen Laura Beth Eichhorn Jameseko Ladawn Glenn Tsuyoshi Ito Stefanie Kristine Beyer Joseph Chaim Cohen Anthony Eisenberg Carly R. Glover Yuko Ito Theresa Marie Zachary Baral Cohen Conway S. Ekpo Leonora Rachel Gogolak Elena Ivanovski Biedermann Gretchen Pilar Collazo Brad Michael Elias Mateo Almuli Goldman David Matthew Jacobs

54 | November/December 2008 | NYSBA Journal Ari Jason Jaffess Juliana M. Laurello Christian Andrew Randi Sheryl Neihaus Clara Mariam Pugsley Tala Jallad John Laurence Matarese Andrew M. Newman- Stephen Chartey Quarcoo Katrina E. James Andrew Shiu Lee John Albert Mattoon Gonchar Antonia A. Rahneva Penelope J. Jensen Donald Donam Lee Lesley J. Matty Jonathan Damian Newton Stefanie Ramirez Qian Jiang Jeffrey Christian Lee Daniel Matza-Brown Katherine Ng Lucero Ramirez-Hidalgo Bora Jin Joanne Jaewon Lee Gregori D. Mavronicolas John Douglas Nicolson Nishal Ray Ramphal Curtis Alan Johnson Sohyun Lee Jill Elizabeth Maxwell Sonia Kaur Nijjar Harsha Shashidhar Rao Gabrielle Gail Johnson Yumi Lee Marianne G. May Colleen Michelle O’Brien Sarah Zoe Raudkivi Allison C. Joyce Mark Leonard Nadres James Bruce Mayne Christine Robin O’Neil Bernard Scott Reardon Brad Michael Kahn Legaspi Stephen Charles Michael Bernhard O’Neil Arash Abbot Rebek David Aaron Kahn Jennifer Hoi Shan Leung McArthur Nick Oberheiden Melissa Rose Renwick Joo Hee Kahng Daniel Barrett Levine Todd McCafferty Ayhan Ogmen Joao Luis Ribeiro De Irini Kalamakis Natalie Elaine Levine Kelly Elizabeth Emmet Patrick Ong Almeida Tracy Lauren Kaminetsky Bradley Benjamin Levy McDonald Arinzechukwu Lionel Fernando Rivera Cory Robert Kampfer Ellis Levy Lauren Elizabeth Nzubechukwu Onugha Erick Rivero Melba Ethel Kapesa Sarah Kalb Levy McEnteggart Adam R. Oremland Jinsoo J. Ro Joshua M. Kaplan Amy Grace Lewis Jennifer Marie McGovern Miriam Elizabeth Osner Lucy Victoria Robb Henna Shifra Kasnett John Fielding Lewis Lindsay Frances McGrath Courage Obehi Otaigbe Airina Lynn Rodrigues Amit Kataria Hilary Gaudiani Ley Keith Edward McIntire Austin Tatsuyoshi Ozawa Karina Manzella Romano Emily Lauren Katz Nicole Paulette Leyton Katherine A. McRobie Jordan Elliot Pace Kizzy Lyn Rosenblatt Elizabeth L. Kaufman Erin Louise Lien Eric Albert Meade Rachel Anne Packer Terri S. Rosenblatt Samir Kaushal Anna Francesca Lim Damaris Lynette Medina Tlalit Packer Michael D. Rosenthal David A. Kazlow Jordana Linder Wilson Monell Meeks Amanda Diane Padgett Laura Kathryn Rosiecki Christine Marie Kearney Leonardo Lipsztein Justin Adam Mendelsohn Gregory Richard Papeika Janey O. Rountree Charles Joseph Keeley Daniela R. Liscio Amy Josephine Ian Lim Papendick Renee Monique Rozier Lisa Maria Keels William Yueh Liu Mikolajczyk Jenny H. Park Tudor Nicolae Rus Eoghan Patrick Keenan Xiusheng Liu Laura Elizabeth James Burdette Parker Allein Sabel Steffanie Keim Po Ying Lo Millendorf Lopa Patel Eric Michael Sadkin Yoram Keinan Sarah Kathleen Logue Adam Isaac Miller Shilpa V. Patel Swan C. Sallmard Bryanne E. Kelleher Gwendolen Dewitt Long Alison Celine Miller Srinivas Giriraj George Ashdown Samuel David Michael Kelly Andrew Alexander Lopez Lindsay Anne Minnis Pathmanaban Peter Martin Sartorius Patrick Edward Kennell Sean M. Low Patrick Ryan Mohan Theresa A. Pauling Evan Jude Saucier Mary M. Kenney Reginald Lucas Bryan T. Mohler William Burnet Pearce Matthew Saunders Gabriel Edward Kennon Tamsin Rae Lucila Gillian Diana Emmett Joshua Eric Peck Michael Robert Scalera Kristin Lynne Keranen David Niklaus Luder Moldowan Rucia Pei Karl Christian Schaub Alexander Kerdman Jennifer L. Luetkemeyer Tamika Renee James Francis Peiser Stephen Matthew Danielle Catherine Kersis Forewing Lum Montgomery Rachel Elizabeth Perez Schauder Kamanta C. Kettle Jamie Lurie Colin Bennett Moodie Kerry O’Rourke Perri Brian A. Schmidt Nivritha Casi Ketty Jonathan D. Lutzky Cason A. Moore Nyron Javid Persaud Aimee Schultz Sheetal Khera Joanne L. Lynch Amanda Evans Moorman Jennifer Peterson Jason Andrew Schuman Sajjad Khoshroo Katherine M. Lyon Jane Marion Morril Jessica Claire Pettrone Michael Solomon Laura Lynn Kilian Christopher Stephen Gisoo Movtady Amanda Lynn Petty Schwartz Brendan Thomas Killeen Machnacki Kevin Robert Mulcahy Jeremy Michael Pfetsch Ilan Yosef Schwed Jane Christine Kim Eric Mack Laura Marie Mulle Jesse Robert Phelps Gregory Scott Kiwi Kim Jeremy Brainard Maco Joseph A. Murphy Katrina Kristel Pierce Schwegmann Soo Y. Kim Eren Magri Martin Tomas Murphy Kathleen Frances Anthony T. Sciarra Tae Hun Kim Justin Robert Mak Joseph Tate Muzingo Pirozzolo Laura Jean Scileppi Joshua Daniel Kiman Brian Michael Malbacho Josseph Nakar Marisa Anne Poe Tiffany Hallen Scott Sojourner Onika King Rebecca Blythe Mancuso John Martin Naughton Samuel William Porter Matthew Albert Scroeder Natasha Alexandra Kirby Christopher Edward Rosa Mae Neel Sarita S. Prabhu Ryan T. Sexton Corrine Kohut Mandel Arianna Pretto-Sakmann Sejal Manoj Shah Mary Kostopoulos Deborah Pauline Mantell Daniel Seth Kotler Christina Marie Manthei Katie Mae Krajeck Janson Mao In Memoriam Michael B. Kruse Taraneh J. Marciano Eric C. Kuehnen Paul I. Margulies Poonam Kumar Michael Shaun Marino James P. Braisted J. Coyne O’Brien Cassandra Labbees Sara Haviva Mark Staten Island, NY Rochester, NY Erin Marie Lafarge Adam McGowan Malcolm J. Edgerton David L. Schreiber Joi Michelle Lakes Marlowe New York, NY New York, NY Dmitriy Lampert Francisco J. Martinez Kerry Jean Land Joey Cesar Martinez William John Fallon Arnold M. Sheidlower Mark E. Landsman Brett Lawrence Martino Syracuse, NY Great Neck, NY Andrej Lang Peter D. Martino Alison E. Lardo Jared P. Marx

NYSBA Journal | November/December 2008 | 55 Adam David Shapiro Eve Noriko Teipel Xun Zeng Mollie Allyn McSparron April Nicole Montgomery Andrew R. Shapiro Melanie Maria Tao Zhang Kelly Meilstrup Ralph V. Morales Sahil Sharma Tharamangalam Ying Zhang Thomas William Neale Joseph Passoni Julie May Shaw Kimberly Marie Binghao Zhao Mary Beth Reilly Panita Phanichayakarn Grant Alan Shehigian Thompson Victoria Liyi Zhu Yasmin Nerina Salway Gil Yosef Pinsberg Karen Chia-en Shen Sara Rose Thompson Dina Zloczower Leah Michelle Williamson Marisa K. Policastro Yang Shen Karolina Elisabeth Anthony John SECOND DISTRICT FOURTH DISTRICT Varun Sugandh Shetty Thomson Provenzano Kaitlin Andrews Sarah Elizabeth Cade Samantha Alexis Shipp Thomas Alexander Vincenzo Purificato Mark Nathan Antar Henry C. Lang Spencer Ryun Short Thorndike Melanie Schanker Osondu Ohuchukwu Kristofer Scott Michaud Natalie Shtraks Raymond Charles Lisa Lynn Swanson Anyadike Julia Margaret Shullman Toomer SIXTH DISTRICT William Robert Tagg Gur Bligh Yael Lee Aura Shy Chaeri Kim Tornay John Ardin Delvecchio Rachel Lauren Weinrib Rebecca Anne Burns Jessica Grace Siegel Cyril Touchard Mel J. Simmons-Rosen James J. Wiltzius Erick Carrera David Ian Silverman Erica Wen-yee Tso Hanne Pauline Walker Lisa A. D’Agostino ELEVENTH DISTRICT Erika Lee Singer Devin Keller Tuohey Jeffrey Edelman SEVENTH DISTRICT Yesenia Maria Arevalo Stephanie Anne Skelly Peetinuch Utaiwan Yusuf Elashmawy Deborah M. Field Gratienne Grinnell Baskin Seth Aaron Skiles Sam Isaac Valverde Nicholas Elcock Meri M. Lopez Adel A. Chahine Michelle Renee Skinner Kyle Matthew Vaughn Anya Marie Poppink Michael George Paul Hong Chen Karen Louise Slotsky Michelle Dianne Emerson Jonathan Eugene Coats Anna Lisa Smith Velasquez EIGHTH DISTRICT Warin Leigh Epstein Demitrios P. Giannakakis Katherine Elizabeth Chandrika Vira Darryl Robert Bloom Muhammad Usman Kelly Christine Griffin Smith Dayna Lynn Volpe Edward J. Damico Faridi Daniel Howe Elizabeth Marguerite Vi Tuong Vu Sharon M. Heim Ilene Wendi Fine Gillian Gemma Jobes Smoose Charlie Valentine Wait Khurram Khalid Khan Jeanine Floyd Houseng Ko Lauren Courtney Smythe John Joseph Wakeley Scott M. Schwartz Nicole Santina Forchelli Lauren Elizabeth Lisa Marie Sofio Chevon Nicole Walker Denetra Williams Genelle Renee Francis Korshalla Jiyoung Sohn Cheryl Helen Walper Krista A. Friedrich NINTH DISTRICT Ling Li Alexander Solo Shirley Andrea Wang Joseph A. Galan Evan J. Boucher Nikon Limberis Jonathan Paul Solomon Deya Murray Warren Adina Meira Gluckman Michael V. Caruso Maureen McMahon Patrick James Somers Aaron Warshaw Irena Golodkeyer Michael Adam Eisenberg Gail Marie Mendez Albert Song John Foster Watkins Donneshia Monique Hall Richard W. Goldschmidt John Peter Plagianos Taylor Alexandra Kristen Bradbury Weil Matthew Edward Hickey Gerald E. Gray David A. Rondon Spearnak Russell Craig Weinrib Christopher Eric Hinkel Elizabeth Danielle Ho Natasha Angela Spence Sara R. Spiegel Melissa Anne Weiss Carmela Huang Sing Wei Wang Bernadette Joanne Spina Tomer Weissman Joseph Jakubowitz Alexander Charles Iorio Michael Chun Wing Jonathan Staley Paul J. Wellington Adam Bradford Konta Demetra Karafotias Wong Maryann Concettina Scott Aaron Wells Jennifer M. Lobaito Bindu Krishnasamy Charlie Yu Stallone Courtney Allison Mark David McGee Neeta Sunil Lulla David B. Steinberg Welshimer TWELFTH DISTRICT Adam Mlynarczyk Heather Helene Metcalfe Melissa Susan Steinrock Jennifer Noel Wheeler Keith M. Bauman Oran Wayne Nembhard Yelena Reyfman Albert William Stemmler Andrew Reilly Whitcup Joseph Charles Bernard Sally Seong Oh Rhoda F. Schoenberger Rachel Lauren Stern Stuart A. White Cynthia Ann Carlson Daniel Marcus Operman Basil B. Seggos Alan Austin Stevens Zillah Kate Whittaker Michela Huth Stephen Paul Pischl Olga Gutman Sherman Jodi L. Stillman Robert Bowen Wilcox Michelle O. Milanes Hugh Emery Reid Jason Eric Sona Dena Stok Jeffrey Pate Williams Annamelda Paul Ksenia Rudyuk Lauren Leo Wainwright Timothy Christopher Joel Rothstein Wolfson Jessica Marie Resto Jonathan Jan Semen Stone Cynthia Mongee Wong TENTH DISTRICT Michael J. Ryan Saukin Arun Srinivas Kate Suzanna Woodall Brendan Michael Ahern Gertrude Strassburger Alexander Shulman Subramanian Yu Wu David William Allen Thomas Robert Villecco Kimberly Marie Skadan Brian John Sullivan Qian Xu Jesse Michael Aviram Asha Saran Smith OUT OF STATE Elinor Catherine Sutton Seung-jin Yang Justin S. Betz Lea Son Maureen L. Abell David Alexander Suzuki Li Yun Yap Mariana Brancoveanu Simone Camargo Tatsch Kamal Agrawal Alexander Joel Swartz Johnny J. Yeh Jennifer E. Bruckman Adam Solomon Uris Elwaleed Mohamed Lidia Dorota Sykisz Isil Yildiz John R. Cahill Michelle Yu Joseph Patrick Carbon Ahmed Paul E. Szabo Kenji Yoshino Takeshi Aiko THIRD DISTRICT William Chung S. Chris Szczerban Jenny Lu Yu Ifeoma Yvonne Ajunwa Seth Joseph Coffey Tifanni Daniella Cooke Diana Marie Szego Mindy M. Yu Alexandru Dan Aldea Abib Tejan Conteh Deborah Dempster David Matthew Szeker Anita Yuen Roy Kalman Altman Brian James Dunne Brina Lynn Dinerman Kenneth Jo-hung Szeto Evgeniya Zakharchenko Stephanie Lauren Altman Thomas Fallati Nir Menachem Gadon Carrie Beth Talansky Eleni Zanias Dianna Alves Erin Elizabeth Garlock Heidi A. Husser Kevin Brian Tam Virginia Marie Joye Malani Anderson Matthew M. Jankowski Margaret Weld Korson Gabriel Taubenfeld Zaunbrecher Shifra Apter Eric Russell Tausner Isaac Berkman Zaur Tobias Asher Lake Matthew Brandon Lehrer John Martorella Shinichi Araki

56 | November/December 2008 | NYSBA Journal Deepti Aranake Atur Ravi Desai Anthony Bruce Harris Ke-wen Lee Tobias Pinckney Nicholas J. Arduini Edwin R. Deyoung John Kenneth Harrison Asia Laurel Lenard Sarah Polcz Harsh Arora Darshak Satish Dholakia Yingying He Marin Katherine Levy Richard John Puchowicz Maria Athanasiou Anthony Joseph Dionys Rene Heimgartner Tze Wai Edwin Li Charles Z. Quint Arturo M. Aviles Diclaudio James Paul Henke Melissa Nicole Licker Roldan Villanueva Chowdhury Ataur Thomas M. Dillon Charles Caudwell Hethey Ji Woong Lim Quinto Rahman Azad Matthew Ryan Dobbie Fiona Christan Hickman Stephanie Yu Lim Ivan Raevski Michal Bachrach Yong Laqq Doh Hollister Anne Hill Horng-dar Lin Richard Ramsay Rami Bardenstein Rodrigo Dominguez- Kathryn Hinton Richard Swen Lindstrom Edward Hoyt Rasp Robert Thomas Barnes Sotomayor Yumiko Hisano Laimute Lipinskaite Stephanie Gail Reckord Christopher Thomas Donald Stephen Domitrz Elaine Jia Ni Ho David Robert Little James David Renner Basilo Lisa Jean Donovan Nafise Nina Trehzure Qian Liu Alison A. Reuter Rachel Kate Beige Sandra Marina Doss Hodjat Tann-ling Loh David B. Rifkin Karen Lynn Berenthal Christopher R. Drake Natalie L. Holden Timothy Scheetz Gabriel Rottman Michael Louis Berry William F. Dugan Pierre Francois Honore Longman Whitney Dougherty Anthony Daniel Bianco Jessica A. Duhoffmann Evangeline Larson Martin Horacio Lopez- Russell Merry Lynne Biggerstaff Anna Dumais Howard novillo Christopher Ted Hans Arthur Black Joseph J. Eaton Hsing-i Hsu Karen Patricia Louie Rykaczewski Jesse Noah Simon Blinick Jesse C. Ehnert Qian Hu Diane Omotayo Lucas Marina Samofal Amanda Rose Bozza Tracey Anne Eilbacher Michael L. Huang Edmund Maciorowski Sujata Iyengar Saraf Sarah Kathryn Bresolin Kimberly Beattie Elliott Robert Geoffrey Huelin Fernando Raymundo Vila Takeh Birshu Kidze Silver Gary D. Elliston Thomas Michael Hunter Magno Sendze Joseph M. Brunner Tara Elwell Christopher Ivey Ksenia Alexandrovna Han Shen Kathleen Anne Bugden Neal Edward Eriksen Renee Marie Jackson Maiorova Christine Shin Aina Bulebayevna Yisel D. Estrada Cruz Matthew Robert Jaumann Rifah Ismael Manasra Steven Michael Sikora Bulebayeva Andrew D. Fagenholz Shruti Ravikumar Dana Evan Marcos Sergiy Mykolayovych Rachel Ellen Bunbury Ryan K. Farnsworth Jayaraman Alexandra S. Marzelli Sivochek Maria Patricia Butler Olubusayo Kikelomo Matthew Allen Jerome Joshua Eleazar Esmeralda Jimmy Jimin Song Jeremy Nicholas Fasidi Ruchun Ji Matic Evgenia Viktorovna Calandrino Barry I. Feinberg Weilu Jiang Jerome Michael Mayersak Sorokina Jessica Lee Campbell Jed Fredric Feldman Robert Louis Johnson Kevin Bernard Mc Ivor Nicole Stefanelli William Love Candler Judith E. Fellheimer Tajuana B. Johnson Lena Marie Mc Kay Nicholas Odysseas Jessica Lee Cardone Sarah Feor Kenneth M. Kams Heather D. McAllister Stephanopoulos Meghan Jill Carey Simon Harnett Fisherow Heum Jeng Kang Amy Christine McDonald Robert William Stetson Viviane Carpentier Ian Patrick Flaherty Steven Hyung Wook John Peter McKeown Aissatou Sylla Leanne Marie Carvino Mariel Eugenia Fondeur Kang Walley Tatiana Rocha Tafarello Kelly Bridget Castriotta David W. Forti George Zhan Kargiolakis Joane Merlain Shanna M. Tallarico Tito Vladimir Alejandro Tamara Lindsey Fowls Paula Caldara Karol Ghazaleh Meskoob Orville Emanuel Thomas Castro Frederick M. Frankhauser Pinha Georgette Miller Jessica Lynn Thorn Amy Elizabeth Catapano Miki Fujita Patrick Spike Kauffman Lisa Marie Miller Yaron Tikotzky Gary Chen Ryo Fukuda Eloise M. Kauvar Tricia Mohan Sorina Dana Tira Jui-yuan Chen Jie Gao Elyssa Kay Johanna Ingrid Monthe Justine Torres Jiachuan Cheng Eva Garcia Bouzas Jadh Jane Kerr Ngantchee Kevin Michael Trowel Shen-yuan Cheng Diogo Garnecho Aude Keszler Roberto Moreiro Patrick Agiounim Uke Daryl Ee-kai Chew Michael Scott Garrison Yoonsup Keum Keith Roland Murphy Amy Elizabeth Van Ying Chi Petra G. Geara Min Jung Kho Nabintu Olivia Mutambo Hevelingen Yoon Hee Choi Jacob Gerb Dae-hee Kim Munish Nagpal Samir Dev Varma Benjamin Bang Yi Chou Kim-Lorraine Gerlach Elizabeth C. Kim Samantha Marie Nataf Sarosh N. Wahla Yuan-yao Chung Diana Katz Gerstel Irene Kim Sean Patrick Neafsey Joelle Arah Webb Graham Howard Stephen Edward Yujin Kim Ayumi Nishino Andrew H. Weinstein Claybrook Goldschmidt Karlis Pauls Kirsis Mariko Nishiwaki Mingjiang Weng Jonathan David Clemente Robert Alexander Gomez Nao Kitazawa Chinemerem Nwankire Abby Kay Wood Douglas Matthew Cohen Jillian Lauren Goorevitch Alena Klimianok Njoku Janee Patrice Woods Matthew Gerard Stefano Marino Grace Magdalena Kochanski Eoin O’Reilly Weber Connaughton Sarah Gildersleeve Ernest F. Koschineg Carlo Cirineo Osi Nathaniel Anson Work Sarah Joanne Corbett Graham Jan Jerry Krasny Ryan Ottavio Yuting Wu James Ryan Cotner Brian Patrick Green Joseph Ronald La Magna Enitan Omotayo Otunla Jian Yao Heidi Louise Craig Kristine Grigorian Michael James Lamonica Celia L. Ouellette Keith Richard Young Dina L. Davalle Gabrielle E. Grinacoff Ellen Grace Lauck Mark Lee Ozerkis Nathan Craig Zezula Philip A. Davolos Gregory A. Gross Benjamin Ledsham Luke A. Palese Ying Zhu Lisa Marie De Martini Jeremiah Lajos Grossman Alexandria Victoria Lee Sophia Paras Carl Decurtis Paul Ryan Gugliuzza Chang Hwan Lee Rakhi Kanubhai Patel Andrew James Defilippis Kelly Whitfield Ham Eun Seong Lee Jonathan Perera Krikor Dekermenjian Han Han John Seong Lee Sophie Perinot

NYSBA Journal | November/December 2008 | 57 CLASSIFIED NOTICES

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58 | November/December 2008 | NYSBA Journal THE LEGAL WRITER entered into” (“made”), “rest, residue, I easily assume that all law students CONTINUED FROM PAGE 64 and remainder” (“rest”), “force and are uber smart.” “Example modifying Many techniques exist to write in effect” (“force”), “last will and testa- the wrong word: “Although nearly fin- plain English. They range from organi- ment” (“will”), and “give, devise, and ished, we left the trial because of our zation, to word choice, to sentence struc- bequeath” (“give”). client.”Becomes: “Although the trial ture. What follows are some tools — Don’t nominalize verbs. Nominal- was nearly finished, we left because suggestions to help writing be effec- ized verbs turn into nouns because of our client.” To place modifiers cor- tive, readable, and succinct. of an added suffix. Nominalizations rectly, keep them next to the word Keep organization tight.18 Use make phrases and sentences long and they modify. Misplaced word example: headings to break documents into complicated. They also make action “We almost ate the entire Inn of Court manageable bits. Put related issues abstract; they don’t describe action dinner.” Becomes: “We ate almost the together, in logical order. Say it once, forcefully.22 Nominalized verbs end entire Inn of Court dinner.” Misplaced all in one place. Put the most impor- in “al,” “ance,” “ancy,” “ant,” “ence,” clause or phrase example: “I threw the tant information first. State the general “ency,” “ent,” “ion,” “ity,” and “ment.” baby down the stairs some candy.” before the specific. Introduce things Examples with auxiliary verbs: “is Becomes: I threw some candy down the before you discuss them. Introduce waiting,” “was reading,” and “were.” stairs to the baby.” Squints can modify people before you write about them. They result in phrases like “made the Minimize cross-referencing. Use thesis argument that” instead of “argued” paragraphs and topic sentences. State and “engaged in a discussion about” Quitting legalese what relief you seek before you say instead of “discussed.” is harder than why you want it. Give a full citation Use “of” sparingly. Incorrect: “At before you give a short-form citation. issue is the duty of a lawyer to pre- quitting smoking. Organize by issues and arguments, not serve the confidences of a client.” The by cases and statutes. sentence is more effective without the the word before or after. Example: “To Admire the active voice. The active excess. Becomes: “At issue is a lawyer’s practice New York landlord-tenant is less vague than the passive. The duty to preserve client confidences.” law, I only had to re-learn the doctrines active is also shorter and easier to read. Delete lead-ins, called metadis- of subinfeudation and petty serjean- In the passive, the sentence’s subject is course, like “it is well settled that,” “it ty.” Becomes: “To practice New York used as the verb’s receiver. Incorrect: is hornbook law that,” “it is important landlord-tenant law, I had to re-learn “The respondent was interrupted by to add that,” and “it is interesting to only the doctrines of subinfeudation the petitioner.” Becomes: “The petition- note that.” Noteworthy points speak and petty serjeanty.” Be careful with er interrupted the respondent.” Double for themselves.23 the word “with.” Incorrect: “I robbed passives don’t identify the subject or Vitiate vague antecedents. Let the a bank with money.” Becomes: “I used the actor. Example: “The passive voice following refer to one person or thing a gun to rob a bank.” Or: “I robbed a is avoided.”19 Use single passives to only: “he,” “she,” “his,” her,” “their,” bank because it had money.” connect sentences or end sentences and “its.” To avoid confusion, repeat Nix negatives. People speak and with emphasis.20 Use double passives the word. think in the positive. Incorrect: “We if the actor is known or identification Eliminate elegant variation. Use the have not yet received permission . . . .” is unnecessary. same word to refer to the same thing. Becomes: “Our application is under Cut compound constructions. A Different words have different mean- review.” Also, avoid negative words compound construction uses several ings. Variations will be understood like “except,” “disallowed” (“dis-” words when only one or two are need- as an intent to distinguish.24 Incorrect: words), “fail to,” “notwithstanding,” ed. Incorrect: “At that point in time the “The first case was adjourned, and the “other than,” and “unless” and “unlaw- petitioner moved for summary judg- second piece of litigation was put over to ful” (“un-” words). And don’t place ment for the reason that no factual issues a new date.” Becomes: “The first case and these words after “not.”27 remained.” Eliminating compound the second case were adjourned.”25 Seek shorter paragraphs. Save one- phrases will shorten the sentence. Match modifiers. Dangling, mis- sentence paragraphs for emphasis, but Becomes: “The petitioner moved for placed, and squinting modifiers con- long paragraphs bore readers. A good summary judgment because no factual fuse.26 Dangling modifiers modify average for paragraph length is three issues remained.” no word or the wrong word. Example to five sentences. Paragraphs shouldn’t Reject redundant phrases.21 Redun- modifying no word: “As someone who exceed 250 words, two-thirds of a dou- dancies include “null and void.” Use teaches at St. John’s Law School, it’s ble-spaced page, or one large thought. “void” instead. If you can say it in easy to assume that all law students one word, don’t use two or three. are uber smart.” Becomes: “As someone Other redundancies: “made and who teaches at St. John’s Law School, CONTINUED ON PAGE 60

NYSBA Journal | November/December 2008 | 59 CONTINUED FROM PAGE 59 readers, lack substance, and are wordy. simpler “before.” Becomes: “Sixty days Incorrect: “Enclosed herewith please find before the license expires . . . .”30 Instead Limit long sentences. Shorter sen- . . . .” This common formula serves no of “subsequent,” use “following” or tences increase understanding. The purpose. Becomes: “I enclose . . . .”29 Or: “after.” Incorrect: “Subsequent to the best sentences have one thought only “Enclosed please find . . . .’ defendant’s appearance, the plaintiff and 25 words or fewer, ideally between Forgo formalisms. Unwanted moved for leave to amend.” Becomes: 15 and 18. But vary sentences length to formalisms include “and/or,” “the “After the defendant appeared, the make writing interesting. instant” case,” and “such” and “said” plaintiff moved for leave to amend.” Simplify sentence structure. Prefer as adjectives. Cherish concision. Examples: “In simple declarative sentences to complex Advocate for Anglo-Saxon words. order to” becomes “to,” “at that point in constructions. Put the subject near the Latinisms and romance-language time” becomes “then,” “for the reason beginning in most sentences. But vary words are proper when they’re terms that” becomes “because.”31 sentence structure, like long sentences, of art. Otherwise, use foreign words Write as you say it — and don’t to make writing interesting.28 Avoid only if an English equivalent is unavail- write it if you wouldn’t say it. Example: connecting sentences with weighty able. Examples to avoid: “ad infinitum” “Pursuant to the terms of the covenant, conjunctive adverbs like “however,” (“forever”), “arguendo” (“for the sake a payment of $100 must be remitted by “moreover,” and “therefore.” of argument”), “inter alia” (“among you.” “Pursuant to” is less precise than Don’t separate subject from predi- others”), “pro rata” (“proportional”), “under,” and “the terms of” adds noth- cate. Every complete sentence contains and “to wit” (“namely”). ing. Becomes: “Under the covenant, you two parts: a subject and a predicate. Toss technical terms. Use them only must pay $100.”32 Use the same unaf- The subject is what (or whom) the when writing about a field-specific fected tone you’d use while speaking. sentence is about. The predicate tells topic. Example: “holdover” when refer- Verify vocabulary. Example: “His something about the subject. Inserting ring to landlord-tenant proceedings. If bad faith in the failure to investigate is lengthy qualifiers between subject and you must use technical terms, include exacerbated by the ease with which vio- predicate frustrates readers. Incorrect: a short definition so that your reader lations can be avoided.” “Exacerbate” means “to increase in severity of or to aggravate, to make worse.”33 One can’t exacerbate bad faith or do so easily.34 The legal community tolerates Stress content, not style. Legal writing succeeds when the reader doesn’t gobbledygook less and less. notice word choice or sentence structure.35 Present properly. Appearances “The judge made the decision after knows what you’re discussing. The count, in legal writing as in everything consulting with colleagues to recuse amount of explanation will vary with else. Add plenty of white space around himself.” Becomes: “After consulting your audience and the purpose of your text. No excessive capitals, italics, bold, with colleagues, the judge recused document. If helpful, give examples to underlining, or strange font styles. himself.” Or: “The judge recused him- illustrate your point. Revise regularly. Editing produces self after consulting with colleagues.” Disparage dictionary words. Simple plain English. There’s no “good writ- Omit unnecessary detail. People, words appeal to readers. Plain verbs ing, only good rewriting.”36 places, and dates are clutter unless communicate directly and effectively. they’re relate to the theme of your Examples: “ascend” (“rise”), “com- Get Involved With Plain English document. prehend” (“understand”), “delegate” Several organizations further plain Avoid over-long or too many quo- (“assign”), “elaborate” (“explain”), English. Scribes, an organization of tations. They substitute for analysis. and “morph” (“change”). legal writers, was founded in 1953 to Avoid acronyms. Acronyms appear Mutilate multi-syllabic words. honor legal writers and encourage a to simplify or shorten your documents. Prefer shorter words with fewer syl- “clear, succinct, and forceful style in But “alphabet soup” forces readers to lables. Shorter words are familiar to legal writing.”37 Scribes has developed retrace their steps to find definitions. readers. They’re read quickly and into a nonprofit, ABA-affiliated orga- Axe archaic legalisms. Archaic grasped easily. Examples: “consequent- nization that publishes a newsletter, legalisms include “aforementioned,” ly” (“as a result”), “notwithstanding” The Scrivener, and a law journal, Scribes “hereinafter,” and “wherefore.” The (“despite”). Journal of Legal Writing. Clarity promotes veil of legalese is made of words like Simplify. Incorrect: “Sixty days prior clear language in the legal profession. “hereto,” “in witness whereof,” “now to the expiration of the license . . . .” It publishes Clarity, which explores the comes,” and “whereas.” They mystify “Prior to” is clunky. Use the shorter and use of plain English internationally.38

60 | November/December 2008 | NYSBA Journal The Plain English Campaign, the orga- Language: Will It Become Second Nature at the SEC?, 87 21. Richard C. Wydick, Plain English for Lawyers 17-20 (5th ed. 2005). nization that awards the Golden Bull, Ill. B.J. 536, 536 (Oct. 1999). is an editing service that publishes 13. See N.Y. General Obligations Law § 5-702. 22. Hathaway, supra note 2, at 26. Plain English magazine and books. It 14. Hathaway, supra note 9, at 19. 23. For additional pointers, see Mark P. Painter, 30 Tips to Improve Readability in Briefs and Legal has more than 10,000 supporters in 80 15. See, e.g., Mark Adler, Clarity for Lawyers: Effective Legal Writing (2d ed. 2007); Michele M. Documents or, How to Write for Judges, Not Like Judges, 39 countries. Asprey, Plain Language for Lawyers (3d ed. 2003); 31 Mont. Law. 6, 10 (Apr. 2006). Here’s some food for thought to chew Robert D. Eagleson, Plain English — A Boon for 24. K.K. DuVivier, The Scrivener: Modern Legal on: To eschew legalese, write in plain Lawyers, The Second Draft (Legal Writing Institute), Writing, Play It Again, Sam: Repetition — Part I, 30 Oct. 1991, at 12; Robert D. Eagleson, Writing in Plain Colo. Law. 65, 65 (Sept. 2001). English. If you write in plain English, English (1990); Bryan A. Garner, Legal Writing in 25. Wydick, supra note 21, at 70 (giving example). you won’t escheat your reader. ■ Plain English: A Text With Exercises (2001); Bryan A. Garner, Securities Disclosure in Plain English 26. For a good explanation of modifier prob- 1. Gerald Lebovits, Alifya V. Curtin & Lisa (1999); Stanley M. Johanson, In Defense of Plain lems, see University of Ottawa Writing Centre, Solomon, Ethical Judicial Opinion Writing, 21 Geo. Language, 3 Scribes J. Legal Writing 37 (1992); Joseph HyperGrammar, http://www.uottawa.ca/academic J. Legal Ethics 237, 259–61 (2008); Judith D. Fischer, Kimble, Lifting the Fog of Legalese: Essays on Plain /arts/writcent/hypergrammar/msplmod.html. Language (2006); Joseph Kimble, The Great Myth Why George Orwell’s Ideas About Language Still Matter 27. See http://www.plainlanguage.gov/howto/ That Plain Language Is Not Precise, 7 Scribes J. Legal for Lawyers, 68 Mont. L. Rev. 129, 140 (2007) (“Jargon guidelines/bigdoc/writeNo2Negs.cfm (last visited Writing 109 (1998–2000); Joseph Kimble, Answering is the specialized language of a particular field. Aug. 13, 2008). Unnecessary legal jargon is often called legalese — the Critics of Plain Language, 5 Scribes J. Legal that is, the inflated language some lawyers use Writing 51 (1994–95); Joseph Kimble, Plain English: 28. Philip Frost, Plain English, Plain Language in instead of simpler, more familiar phrasing.”). A Charter for Clear Writing, 9 Thomas M. Cooley Transition, 84 Mich. B.J. 46, 46 (Aug. 2005). L. Rev. 1 (1992); Joseph Kimble, A Plain English 29. Tom Goldstein & Jethro Lieberman, The 2. George Hathaway, Plain English, An Overview Primer, 33 Prac. Law. 83 (1987); Christine Mowat, A Lawyer’s Guide to Writing Well 112 (2d ed. 2002). of the Plain English Movement for Lawyers . . . Ten Years Plain Language Handbook for Legal Writers (1998); Later, 73 Mich. B.J. 26, 29 (Jan. 1994). Thomas A. Murawski, Writing Readable Regulations 30. Id. (giving example). 3. Robert D. Eagleson, Plain Language: Changing (1999); Plain English Campaign, Language on Trial: 31. Wydick, supra note 21, at 11 (giving examples). the Lawyer’s Image and Goals, 7 Scribes J. Legal The Plain English Guide to Legal Writing (1996); Writing 119, 134 (2000). Plain English Campaign, The Plain English Story 32. This example comes from Goldstein & (rev. ed. 1993); Wayne Schiess, What Plain English Lieberman, supra note 29, at 112. 4. Robert W. Benson, The End of Legalese: The Game Really Is, 9 Scribes J. Legal Writing 43 (2003–04). Is Over, 13 N.Y.U. Rev. L. & Soc. Change 519, 531 33. Webster’s Universal College Dictionary 277 (1984–85). 16. http://www.plainenglish.co.uk/goldenbulls. (1997). htm (last visited Aug. 13, 2008). 5. Carol M. Bast, Lawyers Should Use Plain 34. This example comes from Goldstein & Language, 69 Fla. B.J. 30, 30 (Oct. 1995). 17. Robert D. Eagleson, Plain English, What Lawyers Lieberman, supra note 29, at 110. Need to Know About Plain Language, 73 Mich. B.J. 44, 6. Joseph Kimble, Writing for Dollars, Writing to 35. Id. (giving example). Please, 6 Scribes J. Legal Writing 1, 1 (1997). 46 (Jan. 1994). 18. For good suggestions on plain-English orga- 36. James D. Yellen, Securities Arbitration 2005: 7. See, e.g., Joseph Kimble, Plain Language, You Be Telling Your Story — Plain English in Securities the Judge (Again), 84 Mich. B.J. 56 (Jan. 2005); Robert nization, see Joseph Kimble, Plain English, The Elements of Plain Language, 81 Mich. B.J. 44, 44 (Oct. Arbitration Pleadings, Prac. L. Inst., Corp. L. & Prac. W. Benson & Joan B. Kessler, Legalese v. Plain English: Course Handbook Series 41, 48 (Aug. 2005). An Empirical Study of Persuasion and Credibility in 2002). Appellate Brief Writing, 20 Loyola L.A. L. Rev. 301 19. This example comes from Gerald Lebovits, The 37. http://scribes.org (last visited Aug 13, 2008). (1987); but see, e.g., Howard Darmstadter, Hereof, Legal Writer, He Said — She Said: Gender-Neutral 38. See http://www.clarity-international.net (last Thereof, and Everywhereof: A Contrarian Guide to Writing, 74 N.Y. St. B.J. 64, 55 (Feb. 2002). visited Aug. 13, 2008). Legal Drafting (2002). 20. Gerald Lebovits, The Legal Writer, Do’s, Don’ts, 39. See http://www.plainenglish.co.uk (last visited 8. Mark Duckworth & Christopher Balmford, and Maybes: Legal Writing Do’s — Part II, 79 N.Y. St. Aug. 13, 2008). Convincing Business That Clarity Pays, 82 Ill. B.J. 573, B.J. 64, 64 (June 2007). 573 (Oct. 1994) (“The ultimate success of the plain language movement depends on business recognizing that clear communications improve efficiency, effectiveness, and competitiveness.”). 9. George H. Hathaway, The Plain English Movement in the Law — A 1994 Update, 50 J. Mo. B. 19, 19 (Jan./Feb. 1994). 10. Michael G. Byers, Eschew Obfuscation — The Merits of the SEC’s Plain English Doctrine, 31 U. Mem. L. Rev. 135, 138 (2000) (citing Rudolph Flesch, The Art of Plain Talk (1946)). See also Rudolf Flesch, How to Write Plain English: A Book for Lawyers and Consumers (1979); Rudolf Flesch, The Art of Readable Writing (rev. ed. 1974). 11. See Office of Investor Educ. & Assist., U.S. Sec. & Exch. Comm’n, A Plain English Handbook: How to Create Clear SEC Disclosure Documents 25 (1998), available at http://www.sec.gov/pdf/handbook. pdf. (last visited Aug. 13, 2008). 12. Barbara J. Comly, “Plain English” — Beyond Prospectus Disclosure, N.J. Law. Mag. 24 (Aug. 2001); Carla E. Laszewski, Plain English as a Second

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62 | November/December 2008 | NYSBA Journal 2008-2009 OFFICERS MEMBERS OF THE HOUSE OF DELEGATES

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

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

NYSBA Journal | November/December 2008 | 63 THE LEGAL WRITER BY GERALD LEBOVITS

GERALD LEBOVITS is a judge of the New York City Civil Court, Housing Part, in Manhattan and an adjunct professor at St. John’s University School of Law. For their research, he thanks law students Boris N. Gorshkov (Brooklyn Law School), Katharine Keefe (Washington University), and Cynthia Ganiere (New York Law). Judge Lebovits’s e-mail address is [email protected].

Plain English: Eschew Legalese

on’t escheat your reader. moves writers to give readers only the May 1984, the Michigan Bar Journal Good legal documents information they require. Ignoring the began publishing a regular column Dare free of legalese. Legalese audience leads to documents no one on plain English. The movement has is pettifog: the foreign and formu- wants to read and which don’t inform expanded, but the popularity of plain laic way many lawyers write. Legalese or persuade. To break bad habits, English has come slowly and painfully. drowns the reader and hides gaps writers must become reader-oriented. As George Hathaway noted in 1994, in analysis. Legalese is lawyers’ dull Writers should write for their read- “plain English in the law is like safe and turgid jargon.1 It makes lawyers ers, not themselves. Writers must treat sex: you never used to hear about it; the butt of jokes.2 It’s a pseudo sym- readers like busy professionals. Writers now you hear about it all the time, but bol of prestige lawyers use to indulge shouldn’t waste their readers’ time or not enough people actually practice their egos, dominate others, and dis- insult them. it.”14 Quitting legalese is harder than tance themselves from their lay reader- Most judges, law professors, law- quitting smoking. ship. Legalese leads to interpretations yers, and clients prefer legalese-free Numerous articles, books, and orga- that stray from the author’s intended documents.7 This preference is moti- nizations extol plain English’s virtues.15 meaning: Legalese masks meaning.3 vated by the need to read documents One group of scholars presents annual Legalese favors form over content: without verbiage. Verbiage leads to awards for excellent plain English as It forces readers to dig for content. ambiguity, not only slow reading. With well as the Golden Bull Award, “given Legalese alienates.4 Legalese is lazy. the growing volume of legal work, for the year’s worst examples of gob- Although the best writing is planned, plain English is critical in today’s envi- bledygook.”16 The legal community formal speech, legalese deviates from ronment for both writer and reader.8 tolerates gobbledygook less and less. how people speak: Legalese is obscure and wordy. The Plain-English Movement Putting Plain English Into Practice Lawyers need to filter legalese to The movement to use plain English is Many lawyers don’t know how to create readable documents.5 Good traced to the profession’s earliest days. write in plain English. They never lawyering means writing in accessible, While practitioners have always used unlearned the bad habits they gleaned clear, and efficient language. legalese, the public has always urged from the poor role models they read in The opposite of legalese is plain lawyers to write plainly.9 The move- law school. Although knowledgeable English. The plain-English movement ment’s recent wave gathered pace in in the law, lawyers — society’s best- calls on lawyers to write comprehensi- the 1940s, when Rudolf Flesch pub- paid writers — need to learn more bly and succinctly. The movement aims lished The Art of Plain Talk.10 The plain- about communication.17 Plain English to keep legal documents precise and English movement grew in 1960s. requires the writer to take each sen- simple. The word “plain” is deceiv- In 1963, David Mellinkoff wrote The tence and ask: “Will this be misun- ing. Plain English isn’t “plain” in the Language of the Law, a magisterial work derstood?” “Is this the clearest, most aesthetic sense. Nor does plain English in which he tracked language devel- efficient way to write it?” “Is this word dumb down writing.6 “Plain” denotes opment and its weaknesses. By the necessary?” These questions demand logically organized, concise documents 1970s, federal agencies began redraft- focus on message, respect for audi- that are to the point and visually invit- ing regulations into plain English.11 ence, and intent to be coherent. Good ing to the audience. Documents in This resulted in documents that are legal writers “write the document in a plain English are understandable on easier to understand.12 New York also way that best serves the reader. They their first read. mandates plain English in commercial convey ideas with the greatest possible To write in plain English, writers transactions.13 clarity.” must visualize their audience’s inter- Plain English became popular in ests and needs. This visualization the legal community in the 1980s. In CONTINUED ON PAGE 59

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