The Palsgraf Decision E-Mail: [email protected] As Published in the New York Law Journal

The Palsgraf Decision E-Mail: Sfuller@Networkpub.Com As Published in the New York Law Journal

NEW YORK STATE BAR ASSOCIATION JournalJournalMAY 2003 | VOL. 75 | NO. 4

THETHE PALSGRAFPALSGRAF TRIALTRIAL

Inside Expert Witnesses Hearsay Evidence Divorce and Pension Plans “Serious Injury” Threshold Forms for Part 36 Rules BOARD OF EDITORS ONTENTS Howard F. Angione C Editor-in-Chief Queens e-mail: [email protected] Palsgraf 75th Anniversary – Trial Judge Burt Jay Rose Mary Bailly Humphrey Saw Jury Verdict as “Close Call” Albany William H. Manz 10 Willard H. DaSilva Garden City View From the Bench – Preparing an Expert Witness Louis P. DiLorenzo Is a Multi-Step Process Syracuse John P. DiBlasi Philip H. Dixon 22 Albany Lesley Friedman Rosenthal CLE Insights: Evidence – Current Trends on Rules New York City For Hearsay Judith S. Kaye Robert A. Barker 28 New York City John B. Nesbitt Divorce Case Settlements Require Detailed Lyons Understanding of Pension Plan Options Eugene E. Peckham Reuben David Binghamton 33 Sanford J. Schlesinger New York City Twenty Years of Decisions Have Refined “Serious Injury” Richard N. Winfield Threshold in No-Fault Accident Cases New York City Anthony J. Centone 36 Eugene C. Gerhart Editor Emeritus Binghamton New Rules Published for Fiduciary Appointments Daniel J. McMahon 42 Managing Editor Albany e-mail: [email protected] D EPARTMENTS Philip C. Weis President’s Message ______5 Index to Advertisers ______54 Associate Editor Crossword Puzzle ______8 Classified Notices ______54 Oceanside by J. David Eldridge New Members Welcomed ______55 EDITORIAL OFFICES Point of View ______47 2002-2003 Officers ______63 One Elk Street by Daniel J. Kornstein Albany, NY 12207 The Legal Writer ______64 (518) 463-3200 Attorney Professionalism Forum ____ 49 by Gerald Lebovits FAX (518) 463-8844 Language Tips ______52 by Gertrude Block ADVERTISING REPRESENTATIVE Network Publications Sheri Fuller 10155 York Road, Suite 205 Crestridge Corporate Center O N T HE C OVER Hunt Valley, MD 21030 (410) 628-5760 The montage on this month’s cover highlights the report of the Palsgraf decision e-mail: [email protected] as published in the New York Law Journal. ON THE WORLD WIDE WEB: Accompanying an article about the 75th anniversary of the decision is the start of the story of the accident itself as it appeared in the New York Times. http://www.nysba.org Cover Design by Lori Herzing.

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 © 2003 by the New York State Bar Association. The Journal (ISSN 1529-3769), 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, Sep- tember, October, November/December. Single copies $18. Periodical postage paid at Albany, NY and additional mailing offices. POSTMASTER: Send address changes per USPS edict to: One Elk Street, Albany, NY 12207. Journal | May 2003 3 s I write this message, we are Memorial. When I entered that mar- at the end (I hope!) of a RESIDENT S velous structure, and stood in front ANortheast winter that has P ’ of Lincoln’s enormous (in all re- been unparalleled in my adult life. I ESSAGE spects) statue, I simply cried. On ei- have wonderful memories of a child- M ther side of the memorial are printed hood in Massena, N.Y., with ice two of Lincoln’s speeches, without a storms that led to power outages and description of which speech it is. I days off from school – a slightly dif- was looking at one when I was ap- ferent perspective from my view of proached by a very large man, in full ice and power loss now. Our family biker regalia. He pointed to what I would be together by candlelight, was reading and asked, “What is and it was fun and cozy. I remember, that?” I told him it was the Gettys- too, snowdrifts taller than my father, burg Address, that he should read it outdoor outlets where one plugged carefully and savor every word be- in a car so it would start up again, cause it is perfect (scholars disagree wind chill and cold that made the na- as to some of the actual words and tional news and winter “picnics” the final text, but that is another arti- where we would go into the woods cle). I left him there and when I was near the river and have tuna sand- ready to go some time later, I looked wiches and hot chocolate. For re- over and my biker friend was still minding me of these special times in there, reading, standing with his bike my childhood, I thank the weather helmet in hand. The right of each of gods – but enough already. It is us to be free, the sacrifices that have spring by the calendar and for those to be made to ensure that freedom – these are embodied in that humble of us in the legal profession, that LORRAINE POWER THARP means two things: the federal and president’s simple words, and all of state legislatures in action and May Legislatures us can relate to those words. 1, Law Day. The other D.C. visit was several In a previous message, I discussed And Law Day years ago when I went to the Holo- our legislative priorities and efforts caust Museum. If I could, I would on the state level. This year I participated for the first mandate that every young adult visit this museum with time in the American Bar Association’s “ABA Day” in a teacher/guide. We savor and treasure each human life Washington, D.C. My activities included speaking on in this country, and that is as it should be. Each life lost the need for an amendment to the Gramm-Leach-Bliley in the Iraqi War was mourned by a nation, each prisoner Act to exempt attorneys from the privacy notice re- of war was prayed for by a nation. Compare that to the quirements, and representing the NYSBA in meetings mass destruction of humanity to which the Holocaust with members of the House of Representatives and the Museum bears witness. I went through the museum Senate. It was an interesting undertaking and amazing alone; at one point, I turned a corner and read the fol- to me how much of the facts surrounding our legislative lowing quote on the wall: issues, particularly medical malpractice and tort laws I have issued the command – and I’ll have anybody generally, get lost in the rhetoric. Lawyers being there who utters but one word of criticism executed by firing face-to-face with members of Congress, armed with squad – that our war aim does not consist of reaching facts and data to clear up myths and misconceptions re- certain lines, but in the physical destruction of the ally does help. That is often our most potent form of ad- enemy. Accordingly, I have placed my death-head for- vocacy. mations in readiness – for the present only in the East – with orders to them to send to death mercilessly and The ABA’s agenda this year included not only the without compassion, men, women, and children of Pol- Gramm-Leach-Bliley amendment, but also opposition ish derivation and language. Only thus shall we gain to federal involvement in the tort system (and opposi- the living space (Lebensraum) which we need. Who, tion to the $250,000 pain and suffering cap), support for after all, speaks today of the annihilation of the Arme- Legal Services Corporation funding and support for nians? -Adolph Hitler, 1939 federal judicial pay raises. My trip this time to Washington reminded me of two Lorraine Power Tharp can be reached at Whiteman other visits. One was shortly after September 11, 2001, Osterman & Hanna, One Commerce Plaza, Albany, and I had a real desire to see once again the Lincoln New York 12260, or by e-mail at [email protected].

Journal | May 2003 5 PRESIDENT’S MESSAGE law, our freedom, our very real ability to say, as my Ar- I am half Armenian, and it took me quite a while be- menian grandmother did, “Life is sweet.” At the Bar fore I could continue walking through the museum. Center each year we give out the President’s Pro Bono Both my grandparents lost their first families in the Ar- Awards, honoring the best among us who help change menian genocide, which transpired from 1915 to 1916 lives on a volunteer basis, the only profession that does (continuing in many respects to 1923). We heard these so on such a large scale. Each one of those 19 award re- stories as children, told to us not with hatred or to instill cipients – and each one of you reading this message who hatred, but so that we would not forget, so that we would does pro bono work – contributes to what Law Day was speak out, so that the answer to Hitler’s question would intended to celebrate. Access to justice for all is the key be forever changed. – without it, our celebration would be meaningless. Law Day. Our answer to the communist display of I wish you happy spring, the renewal on all levels war power that could lead to mass destruction of hu- that accompanies spring, and the reenergizing of each of manity. On May 1 each year, we celebrate our rule of us in this marvelous profession of law.

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6 Journal | May 2003 CROSSWORD PUZZLE

The puzzles are prepared by J. David Eldridge, a partner at Pachman, Pachman & Eldridge, P.C., in Commack, NY. A gradute of Hofstra University, he received his J.D. from Touro Law School. Answers to this puzzle will be printed in the next issue. (The answer to the previous puzzle is on page 50.)

Across 1 Where the lawyers speak with the judge outside of the jury’s presence

3 Evidence of previous immoral, vi-

cious, or criminal acts which is ad-

missible on cross-examination to show the witness is unworthy of belief 5 Statements protected from discovery due to special nature of relationship between communicating parties 9 The process of determining an individual’s status as an expert 10 Putting answers in the witness’s

mouth on direct 16 An out-of-court statement offered to

prove the truth of the matter asserted 17 The regular practice of meeting a particular kind of situation with a certain type of conduct 18 Rule holding that a filed document more than 10 years old which af- fects real property is prima facie proof of its contents (CPLR 4522) 19 What every defendant has a right to do to a witness on cross-examination

20 Doctrine preventing commence- ment of an action in certain circumstances unless a written and executed contract or writing exists 25 The preliminary questions posed to a witness to establish the admissibility of certain evidence 27 To call a witness’s veracity or credi- Empire State Evidence, by J. David Eldridge bility into question 29 The reason for doing something 6 A document, item or other tangible evidence of ready determination via accurate and reli- 30 The quality in a witness which renders his ev- shown to the jury and used during delibera- able sources idence worthy of belief tions 23 Counsel’s burden when opposing party’s ob- 31 Evidence of what a witness thinks 7 Evidence tending to make a disputed fact jection is sustained 36 Evidence of a person’s moral standing in the more or less likely 24 Opinion of the court community based on reputation 8 What you call the impermissible attempt to 26 New York’s Fifth Amendment parallel pre- 39 The introduction of evidence to show that a add credence to unimpeached testimony or venting this is found in CPLR 4501 writing is what it purports to be evidence 28 A party presenting evidence who, by reason 41 Concession or voluntary acknowledgment of 11 . . . and answered of education or experience, possesses supe- the existence of certain facts 12 Doctrine precluding use of evidence that a rior knowledge of a subject relevant to issue 42 CPLR 4514 rule allowing impeachment of a party attempted to correct a defective condi- before court witness by offering proof of a statement pre- tion 32 Rule prohibiting introduction of oral promise viously made which differs from testimony at 13 What an expert, unlike a layperson, may pro- or declaration made by decedent (CPLR 4519) trial vide while on the stand 33 Facts not directly connected with the princi- 43 Evidentiary rule discouraging the introduc- 14 When the judge agrees with your objection pal matter or issue in dispute tion of evidence not contained within a con- 15 What a party is deemed to do with an unre- 34 How you mark an exhibit before introducing tract futed statement others would have ordinarily it into evidence Down denied 35 The original document rule (CPLR 4539) 2 The recorded testimony of a witness taken 21 Hearsay exception based upon statement 37 The general opinion of a person held by those under oath pursuant to CPLR 3107 made by declarant during or soon after a star- in the community 4 Hearsay exception under CPLR 4518 allowing tling event 38 What you do to a witness whose credibility introduction of documents regularly recorded 22 Rule allowing the court to recognize facts has suffered on cross-examination at a job on or about the time of a transaction which are either generally known or capable 40 Repetitious evidence

8 Journal | May 2003 Palsgraf 75th Anniversary Trial Judge Burt Jay Humphrey Saw Jury Verdict as “Close Call”

BY WILLIAM H. MANZ

“Well, I think not. Of course, it is a close call in my County the next year to marry Frances Akins of Berk- mind, but, at the same time, I will let the verdict stand.”1 shire. Back in Seattle, Humphrey continued to practice With this ruling, Justice Burt Jay Humphrey, by denying law, and appeared several times before the Washington the Long Island Railroad’s motion to set aside the ver- Supreme Court.15 His Seattle practice was successful dict in the Palsgraf trial, unwittingly accorded himself a until the Panic of 1893. After struggling financially for permanent place in American legal history.2 several years, the Humphreys decided in 1897 to return Although now often referred to only as the “trial to Berkshire. When they reached Grand Central Station judge” or merely remembered as one of the “Passengers in New York, they made a spur-of-the-moment decision of Palsgraf,”3 Humphrey was a well-known figure in the to take a train to Jamaica, Queens. Finding that the then- New York City legal community during his lifetime. A small community reminded him of his hometown, popular and respected judge, he was praised on his re- Humphrey decided to stay and open a law office.16 tirement as having “instilled a deep, sincere and abiding Humphrey joined the Masons and the Elks, and was confidence on the part of the people of the county in the a member of the local fire company. When the company judicial system by his splendid record while on the was disbanded after a paid department was established bench.”4 in Jamaica, Humphrey purchased for $14 the unit’s large Burt Jay Humphrey served on the bench for 32 years, wooden desk, which he used for the rest of his career. As presided over several well-publicized trials, inaugu- an attorney, he appears to have engaged in general prac- rated the Queens County probation system,5 and tice, and appeared several times before the Appellate chaired the jurists’ committee that advised the architects Division, Second Department.17 of the present Queens County Courthouse.6 His view of One notable incident involved the Ocean House, a the law was that “the human element and personal in- hotel in Rockaway. The operator had failed to pay the terest keep it from attaining the perfection that it has in remainder due on the lease, and was to be dispossessed. theory.”7 He believed that humanity was “prone to When Humphrey arrived with a law clerk and a mar- error,” but that if it were otherwise, “there would be no shal, the man retreated to his office and hid under his judges, and perhaps no newspapers.”8 His personal desk. The situation was resolved, when, with a police- manner was described as cordial, friendly, tolerant, and man present, Humphrey, the clerk, and the marshal sim- never too busy to listen.9 Lawyers reportedly admired ply picked the man up and carried him out of the him because of his courtesy and honesty,10 and he hotel.18 earned the gratitude of many young attorneys because of his practice of appointing as referees individuals who Election as County Judge were newly married or expecting a child.11 In 1903, Humphrey was nominated for county judge by the Queens County Democratic Party, headed by Early Years political boss Joseph “Curly Joe” Cassidy. Although Humphrey was born on April 23, 1866, in the Tomp- kins County village of Speedville, N.Y. The son of Ed- ward L. Humphrey, a farmer,12 and Manette Smith WILLIAM H. MANZ is the senior re- Humphrey,13 he was educated in the local district search librarian at St. John’s Univer- schools, and attended high school in Owego, in Tioga sity School of Law. A graduate of Holy Cross College, he received a master’s County. The family’s finances ruled out law school, so degree in history from Northwestern he instead read law in the offices of Supreme Court Jus- University and a J.D. degree from St. tice Charles E. Parker and County Judge George F. An- John’s University School of Law. drews. Admitted to the bar in 1890,14 Humphrey moved to Seattle to establish a law practice. He returned to Tioga

10 Journal | May 2003 praised in the pro-Democratic press as “a young man of splendid ability, exalted reputation, and high moral courage,”19 he was given no chance to win. He had re- The Palsgraf Decision ceived the nomination only because the incumbent, the popular Republican-Fusion candidate, Judge Harrison Seventy-five years ago, on May 29, 1928, the S. Moore, was regarded as unbeatable.20 Humphrey, Court of Appeals handed down Palsgraf v. Long Is- 1 who had always wanted to become a judge, took the land Railroad Co., overturning a jury verdict in favor nomination seriously and promised a “whirlwind cam- of Helen Palsgraf who had been injured when a scale paign.” Aided by the large margin-of-victory of Democ- on a railway platform overturned in the after-effects ratic mayoral candidate, George B. McClellan, son of the of an explosion triggered when a package containing Civil War general, over the Fusion candidate, Mayor fireworks fell to the rails. The unsuspicious bundle, Seth Low, the entire Cassidy slate prevailed at the polls, wrapped in newspaper, had been under the arm of a with Humphrey defeating Moore by more than 4,300 man who jumped aboard the train after it was mov- votes out of the almost 29,000 cast.21 ing and seemed about to fall. A guard on the train Ironically, the most noteworthy event of Humphrey’s who had held the door open reached forward to help first year on bench was an attempted burglary at his the man while a guard on the platform pushed him home. One evening in May 1904, Mrs. Humphrey’s from behind, but the bundle was dislodged and the niece came downstairs and encountered burglars at- explosion followed. tempting to steal silverware and other items. As one The 4-3 Court of Appeals decision written by man pointed a revolver at her, she ran back upstairs Chief Justice Benjamin Cardozo overturned a 3-2 Ap- to warn the household. The intruders then fled with- pellate Division ruling that had upheld the jury ver- 2 out their loot and vanished.22 Two years later, the dict. The Court of Appeals concluded that the con- Humphreys moved to a Jamaica residence he called duct of the railroad’s guard was not, in relation to Beach Haven, later enlarging the property in 1911 with Helen Palsgraf, negligence: “Nothing in the situation the purchase of 21 additional lots.23 For a time, they kept gave notice that the falling package had in it the po- horses, chickens, and cows on the property. One night, a tency of peril to persons thus removed. Negligence is prowler took milk from a cow, and then attempted to not actionable unless it involves the invasion of a steal corn from the garden, before being frightened off legally protected interest, the violation of a right.” by Humphrey, who appeared on a balcony armed with Palsgraf soon became a widely celebrated case that is a gun.24 still regularly cited by the courts. Humphrey’s early years as county judge also in- This article chronicles the career of the trial judge, cluded involvement in a classic “lost boy” story. In April Burt Jay Humphrey, whose faith in the ability of ju- 1909, 3-year-old Edwin Biggs, accompanied by two ries to reach conclusions about the facts likely influ- dogs, left home, apparently intending to find a doctor enced his decision to let the verdict stand, thus set- for his seriously ill father (who later died of pneumo- ting the stage for the historic ruling. In addition to nia). Darkness fell, and the boy became lost in the providing background on the Palsgraf case, the ac- woods. Humphrey, who was out for a walk with his count of his career contains a revealing account of ac- niece, encountered one of the dogs, which appeared to tivity in the state’s highest trial court during the be agitated. They followed it, and soon heard the crying early years of the 20th century. child. The boy was taken to the nearby Humphrey home, where Mrs. Humphrey was able to learn his 1. 248 N.Y. 339, 162 N.E. 99 (1928). name. The judge then personally returned the boy to his 2. 222 App. Div. 166, 225 N.Y.S. 412 (2d Dep’t 1927). parents.25 In 1909, Humphrey ran for re-election as the candidate of both the regular Democratic Party and the Re- During his second term as county judge, Humphrey publicans. His opponent was George E. Cogswell, the became involved in a scandal that began when 16-year- candidate of the Independent Democrats, who were old Clara Ellert went to the Queens County Courthouse determined to oust Cassidy’s political machine. to inquire about the case of her husband who had re- Humphrey, benefiting from support by the Republi- cently been arrested for petty theft. There, she encoun- cans26 and the backing of the Queens County Bar Asso- tered two Cassidy followers who promised to get her a ciation,27 won re-election, although Independent leader lawyer. Instead, they took her across the street to the De- Lawrence Gresser prevailed over both Cassidy and the mocratic Party clubhouse, where they assaulted her.28 Republican candidate in the hotly contested race for Seeking justice, she told her story to Humphrey and the borough president. Queens district attorney, Matthew J. Smith, a member of

Journal | May 2003 11 the Cassidy organization. When Smith attempted to dis- in his bed and then faked a murder scene.46 Mastrota miss the indictments against the accused Cassidy fol- was executed on June 12, 1924.47 lowers, the young woman enlisted the aid of Florence Eno, the leader of the local Suffragist Party. After the Sentencing Philosophy conviction of one of the men, a New York Times editorial Humphrey believed that one of his duties as a judge critical of the way the case was handled prompted a when sentencing convicted criminals was to protect the Washington, D.C., woman to write a public. On one occasion, he said, “I letter to the editor that suggested that am going to do all I can to stop both the district attorney and holdups in Queens if I have to send Humphrey had shielded the accused every young loafer in this county to 48 men.29 Humphrey immediately re- prison for life.” Although known for sponded with his own letter, stating his attempts to reform first offenders, that he had “been diligently pushing Humphrey gave long sentences to ha- [the case] since it was first called to bitual criminals and to the perpetra- my attention.”30 The next week the tors of particularly outrageous Times printed a letter from Mrs. Eno crimes. In imposing a sentence of 30 that praised Humphrey’s “absolutely to 60 years in prison on two men who fearless attitude and splendid help,” had abducted a young woman after and stated that it would have been robbing her companion, Humphrey impossible to get any indictments stated, “There is a duty to society without his assistance.31 which looks to our courts for protec- In his 22 years on the county court tion from crimes such as that with which you two young men are bench, Humphrey presided over 700 49 civil and criminal trials.32 These in- charged.” cluded a tomato-throwing incident,33 When later sentencing four young displaced chickens,34 and a dispute men convicted of the same type of between two evangelists over the use crime, he said, “Your crime was the of a tent.35 While serving in the crim- worst I have known in the history of inal term, he passed sentence on Queens County. You are entitled to no 50 more than 1,200 persons,36 including mercy.” horse thieves,37 various swindlers and con-artists,38 a In imposing a 39-year sentence on an arsonist who woman bigamist dubbed the “Kissless Bride,”39 several admitted to setting fires to three tenement houses be- absconding husbands,40 and a man who had stolen cause life had been dull since he had left the army after $1.51 from a church poor box.41 World War I, Humphrey said, “You are a most danger- Humphrey also presided over several well-publi- ous man. I am going to give you the longest sentence I 51 cized murder trials, including those of Augusta can.” “Gussie” Humann, charged with conspiring in the mur- A 30-year sentence was imposed on a 16-year-old, der of a former admirer, and Ernest and Marie Vetter, ac- who after having served a term in the New York Juve- cused of murdering Mrs. Vetter’s former fiancé, putting nile Asylum committed a series of burglaries, including the body in a burlap bag, and dumping it into Jamaica one at the home of a policeman, where he tied up the Bay.42 Ms. Humann was acquitted on a directed verdict wife and threatened to burn her unless she revealed the when Humphrey found no evidence against her.43 The location of money and jewels. Vetters, who had pleaded self-defense, escaped a mur- A 40-year sentence was imposed on a 25-year-old der conviction, and were instead found guilty of man convicted of a robbery committed while out on bail manslaughter.44 for participation in a $65,000 burglary. Humphrey said, At least two other convicted murderers who were “You have been bad from the start. You have been bad 52 tried before Humphrey did not fare as well. In 1921, 17- ever since.” year-old Peter Nunziato, convicted of the mugging-re- In the case of a man who had stolen when he was lated murder of Wilfred P. Kotkov, a professor at the drunk, the judge said, “I always do all that I can to en- Jewish Theological Seminary,45 received a death sen- courage sobriety and so I am going to assist you by tence and was later executed. In 1923, the death penalty making it hard for you to get a drink. I will sentence you was imposed on Albito Mastrota, 31, who, expecting to to Sing Sing for 10 years. That may take the edge off 53 inherit his uncle’s $50,000 estate, had strangled the man your appetite.” CONTINUED ON PAGE 14

12 Journal | May 2003 ing small fines on minor offenders to more serious inci- Personal Glimpses dents. Humphrey realized that there could be disagree- ment about the wisdom of Prohibition, but was anxious 58 Burt Jay Humphrey’s long judicial career in- to prevent the sale of poisonous bootleg liquor. cluded events that gave special glimpses into his When he fined a necktie manufacturer $500 after the personality. man pled guilty to making homemade whiskey, In his early days as a county judge, an attorney Humphrey observed, “When a necktie manufacturer could not find the judge in his chambers and decided starts to make bootleg whiskey two things are likely to to look for him at his home. There he found happen – either there will be an explosion because he Humphrey milking a cow. The judge explained that does not understand the operation of a still or the the hired man was away but “I can milk as well as whiskey is apt to be poison. I would impose a jail sen- he. This is a part of the close to the soil programme tence if it wasn’t for the fact that you have gone back to 59 that keeps people human.” The attorney then made the necktie business.” his presentation while the judge continued with his In a decision that was then seen as a blow to police milking.1 raids and drew criticism from the assistant district at- Another day, while sitting on the bench one day, torney, Humphrey held that seizures of liquor under the Humphrey handed a lawyer a $5 bill to save the man Mollen-Gage Law must be made by the officer who pro- the embarrassment of not being able to pay the costs cured the search warrant, and ordered the return of of an adjournment.2 eight bottles of gin, two pint bottles of wine, and twenty-six bottles of beer taken from a Corona, N.Y,. 60 1. Found the Court A-Milking, Lawyer Made His Argument man. While His Honor Finished the Job, N.Y. Times, Aug. 8, A month later, a laborer who claimed that whiskey 1908, at 3. and wine worth $100,000 had been wrongfully seized 2. Charity Gets Judge’s Loan, N.Y. Times, Sept. 9, 1916, did not initially fare as well. Seeking the return of the al- at 6. coholic beverages, he claimed to have acquired them before Prohibition. Noting that he could not understand CONTINUED FROM PAGE 12 how a man of such limited means could possibly own Humphrey was skeptical of expressions of remorse, such a valuable cache of liquor, Humphrey upheld the noting that defendants “are more often sorry that they seizure, saying the premises where they had been lo- were caught than that they committed the crime.”54 He cated was really a whiskey warehouse.61 The Appellate was not swayed by requests from influential persons to Division, however, ordered the return of the liquor on mitigate a sentence, as illustrated by the case of two col- the grounds that there had been an unreasonable delay lege students who were sentenced to the Elmira Refor- in the issuance of the notice required by the State Prohi- matory for car theft, despite a letter sent by the governor bition Enforcement Act,62 although two dissenting of Texas to the governor of New York on behalf of one of judges noted that the man’s statement relating to own- the defendants. In passing sentence, Humphrey stated, ership was “incredible on its face.”63 “I do not see why because your family is prominent and Other Notable Cases you have superior advantage that we should be lenient 55 As a county judge, Humphrey had some pre-Palsgraf with you.” encounters with the Long Island Railroad. In 1910, he Humphrey was also not always receptive to pleas for fined the railroad $500 for maintaining a nuisance by clemency. In 1907, he sentenced a convicted burglar to closing a public highway. Here, the right to lay out 15 years, despite the man’s efforts to sway the court by streets accorded the citizens of Jamaica by a 1734 royal quoting William Jennings Bryan on the need to encour- grant prevailed over rights claimed by the LIRR under age those who would honestly endeavor to lead a good its 1834 charter.64 56 and useful life after their discharge from prison. This In 1923, he presided over the manslaughter indict- convict was described as “heartbroken” by his sentence, ments of the railroad’s general superintendent, chief of but not everyone sentenced by Humphrey was neces- police, and several LIRR employees, who were accused sarily dissatisfied. In 1910, he gave two burglars identi- of culpability in fatal grade-crossing accidents.65 Noth- cal sentences, and was thanked by one of them who had ing apparently came of these indictments, but in 1924, been angered by his accomplice’s efforts to place all the 57 Humphrey granted the district attorney’s request for a blame on him. special grand jury investigation of a serious derailment Prohibition Decisions at the railroad’s Sunnyside Yards that killed one woman As a jurist in the Prohibition era, Humphrey had his and injured 36 other passengers.66 Three LIRR employ- share of liquor-related cases. These ranged from impos- CONTINUED ON PAGE 16

14 Journal | May 2003 CONTINUED FROM PAGE 14 the 12-year-old granddaughter, “You have a fighting ees were later indicted, and one was convicted of grandmother, and I have no fears as to her not taking manslaughter and sentenced to 60 days in the work- care of you.”72 house.67 Election to Supreme Court Two unusual courtroom incidents related to After his re-election as county judge in 1915, Humphrey’s belief in demonstrating the facts to juries: Humphrey’s ambitions turned toward the state In a $25,000 suit brought by a woman burned in a steam Supreme Court. In 1918, he planned to run as an insur- cooker accident, an expert witness was permitted to gent against the nominee of Queens Borough President demonstrate the proper use of the device by preparing Maurice Connolly. Humphrey, however, eventually ac- corned beef and cabbage.68 At the trial of a teller for ceded to the request of the state Democratic Party chair- stealing $15,000 from a Long Island City bank, man and Governor Al Smith that in the interest of party Humphrey had a replica of the safe and its alarm system unity he give up the race.73 In 1920, he did get the nom- erected in the courtroom. Proceedings throughout the ination, but like every other Democrat running in the courthouse were interrupted when, in demonstrating Second Judicial District he was defeated in the landslide the alarm system, the expert witness needed five min- victory of Republican presidential candidate Warren G. utes to turn off the device.69 Harding.74 In a 1914 murder trial, Humphrey ordered everyone In 1925, he was nominated for justice when the ex- not connected with the trial out of the courtroom. Sup- pected Queens nominee, District Attorney Richard S. porters of the defendant, described by the New York Newcombe, dropped out of the race when Connolly de- Times as gangsters, then rioted, wrecking several wait- cided he did not want to create a vacancy in the district ing rooms before the police arrived.70 Two years later, a attorney position that would be filled by Governor Al woman testifying in a suit over a promissory note had a Smith.75 This time, Humphrey was victorious when a heart attack. She was carried into Humphrey’s cham- Democratic Party electoral sweep ousted the two in- bers, but was dead by the time a doctor arrived.71 cumbent Republican justices.76 In a 1926 child custody case, Humphrey encountered Among the early cases after his election was the well- a feisty pro se litigant, a grandmother, who, speaking publicized trial of several Long Beach policemen ac- broken English, repeatedly interrupted the judge, and, cused of being involved in a rum-running plot.77 In an- on one occasion, told the attorney for the child’s father other case, he denied an annulment to a woman who to “shut up.” Humphrey disregarded her unusual said she was so drunk during her wedding ceremony courtroom conduct and awarded custody to the woman. that she had no memory of it. In a dispute over a strip of In ruling against the absentee father, Humphrey said to land adjoining the east end of Jones Beach State Park, Humphrey held that the 200 heirs of Captain John Sea- man had no claim to the property because the 18th century grant by Governor Thomas Dongan did not include the land.78 Palsgraf Trial Unlike the Dongan patent case, when Palsgraf appeared on Humphrey’s docket, it did not give any indi- cation of being particularly noteworthy. The entire trial lasted less than two days, with the jury taking only two hours and thirty-five minutes (including time out for lunch) to find the Long Island Railroad liable, and awarding Mrs. Palsgraf $6,000 in damages. At the trial, Mrs. Palsgraf’s attorney was Matthew W. Wood, a magna cum laude graduate of Yale Law School, a former editor of the Yale Law Journal, and an experienced general practitioner with offices in the Woolworth Building. Trying the case for the LIRR was one of its most junior attorneys, William McNamara, a recent graduate of New York Law School. This photograph accompanied Judge Humphrey’s obituary in Wood’s examination of his witnesses concentrated on the N.Y. Times, Dec. 12, 1940. establishing a chain of causation and eliciting testimony © The New York Times Co. that railroad employees had caused the unknown pas-

16 Journal | May 2003 senger to drop his bundle of fireworks. McNamara, who trainmen’s act of knocking the bundle loose was not the called no witness of his own, focused on establishing the proximate cause of Mrs. Palsgraf’s injuries.82 anonymous nature of the package. In doing so, his strat- Once the jury had awarded Mrs. Palsgraf $6,000, egy appears to have been to convince Humphrey to rule Humphrey denied William McNamara’s motion, made favorably on a motion to dismiss the case, as indicated under § 549 of the Civil Practice Act, to set the verdict by the language he used when the last witness was late aside, indicating that although he regarded it as a close in appearing. Here, he said, “I move to dismiss the com- question, he would let the jury’s decision stand.83 His plaint. It surely can not be anticipated, when people are final action in Palsgraf came on May 27, 1927, when he carrying fireworks in a package, and we can’t have refused the LIRR’s motion for a new trial, leading to the everybody open their bundles when they come on the appellate process that ultimately brought the case to 79 station platform.” Benjamin Cardozo.84 Humphrey’s role during the testimony was limited to Humphrey’s comments when ruling against McNa- asking a few questions that clarified what witnesses had mara’s motion to set aside the verdict raise the question said. He had to rule on only one objection, sustaining of whether the Palsgraf case might have taken a different McNamara’s objection to a statement by Wood’s med- course if another justice had been on the bench, particu- ical expert, the noted alienist and neurologist Dr. larly because Cardozo and others later expressed doubt Graeme Hammond, which appeared to connect Mrs. about whether there had been any negligence on the Palsgraf’s alleged insomnia with the accident. Both be- part of the railroad.85 From his comments, it appears fore and after Dr. Hammond’s testimony, he denied Mc- that Humphrey also had his doubts about the strength Namara’s motions to dismiss the case. of Wood’s case, but it would not be surprising that his His subsequent charge to the jury, described as “bal- belief in the jury system as the best method for deciding anced,”80 was as follows: “Did these men omit to do questions of fact,86 together with possible sympathy for something which ordinarily prudent and careful train Mrs. Palsgraf, helped influence his ruling in what he re- men should not omit to do?”81 Humphrey then agreed garded as close call. If Humphrey had instead ruled for to McNamara’s request to charge the jury that it should the LIRR, it is possible that Matthew W. Wood might not draw no inference from the railroad’s failure to call any witnesses, but denied his request for a charge that the CONTINUED ON PAGE 18

Journal | May 2003 17 collection of crowds, loitering upon or obstructing the Donation to Women’s Bar sidewalk or entrance to the store,” and “permitted peaceful picketing with sign or placard with truthful 93 Burt Jay Humphrey made legal news a final time legend and persuasion by sign, notice or handbill.” in January 1939, when he donated his law library to A labor case with more serious implications arose the Queens County Women’s Bar Association. He when longshoremen and teamsters refused to allow noted that he was “most impressed with their efforts trucks with non-union truckers onto the Brooklyn in the face of difficulties that undoubtedly beset the wharves.94 After a six-week trial, Humphrey granted a young woman lawyer trying to make her way in the permanent injunction, holding that the steamship com- law.”1 panies, as common carriers, could not allow their employees to refuse freight handled by non-union work- 1. Women Lawyers Get Humphrey’s Library, N.Y. Times, ers.95 The unions attacked the ruling as “harking back to Jan. 24, 1939, at 17. the past” and being “contrary to the expressed policy of Congress.”96 Union leader Joseph P. Ryan promptly an- CONTINUED FROM PAGE 17 nounced that the unions would appeal, and threatened 97 have pursued the case further, and it would have van- a general strike. Mayor Fiorello LaGuardia supported ished from legal history. the union’s legal position, agreeing that the Norris-La- Guardia Act would be violated if the injunction were Subsequent Decisions granted.98 Serious problems seemed likely when union In the years after Palsgraf, service on the Supreme workers then staged a one-day strike that tied up the Court brought the kind of criticism and controversy that wharves,99 but further difficulties were averted when Humphrey had not previously encountered. In 1927, a Humphrey agreed to stay the injunction pending an ap- Brooklyn Republican leader publicly blamed the Demo- peal. On appeal, Sen. Burton K. Wheeler of Montana, cratic Supreme Court justices for court congestion, as- serving as counsel for the unions, argued that the dis- serting that together they tried fewer cases than Repub- pute involved questions of interstate commerce and lican Justice James C. Cropsey.87 could only be settled by a federal agency.100 The Appel- Two years later, questions arose about Humphrey’s late Division agreed and reversed, lifting the injunc- service as a director of a real estate company. He re- tion.101 sponded by indicating that the company was formed to In his final years on the bench, Humphrey also made manage his own properties, that there were no public the news because of events outside the courtroom. In holdings, and that the directorship did not interfere 1935, he presided at the first wedding of eccentric 88 with his judicial duties. heiress Doris Duke. Later that year, his home was again In 1930, real estate was again an issue when John burglarized. An intruder entered through a second- Haynes Holmes of the City Affairs Committee charged story window while Humphrey, his wife, niece, and that the courts had made excessive awards in land con- maid were asleep. Unlike the 1909 incident where the demnation cases, and said Humphrey and four other burglars fled empty-handed, the unknown intruder justices had “made the most indefensible awards.” stole items valued at $1,000, such as jewelry, cash, and Humphrey answered by stating that every precaution several watches, including one presented to Humphrey had been taken in determining the awards, and that he after his election as county judge in 1909, and silver had “a fairly good knowledge of property values in vases presented to the judge after being re-elected as a 89 [Queens].” county judge.102 Humphrey also encountered difficulty in the con- tentious area of labor relations. In one incident, workers Retirement on strike against the Wise Shoe Co. had frightened cus- By the time of his retirement, the growth in the tomers and caused crowds to gather, obstructing the en- population of Queens County led to a change in trance to the store.90 Humphrey granted an injunction Humphrey’s living arrangements. In 1936, a street enjoining the union from picketing and engaging in widening project required the removal of an eight-foot other strike-related activities against the shoe com- privet hedge that Humphrey had cultivated for 25 years pany.91 The Appellate Division later held that extending as protection against the boisterous behavior of students the injunction to other stores operated by Wise was too from Jamaica High School, which was located across the broad, and struck provisions of the injunction regarding street. The property was subsequently sold for $137,000 interference with business and persuading employees to to a developer who later built two apartment houses on stop working for the company.92 The case went to the the site. The Humphreys then moved to a home in Court of Appeals, which finally enjoined all “shouting, nearby Jamaica Estates.

18 Journal | May 2003 After being forced to retire on January 1, 1937, be- Landmark Benjamin Cardozo Opinions (William H. cause of the statutory age limit of 70 for Supreme Court Manz ed., 1999). justices, Humphrey was named head of an official in- 2. This article is based on research done for “Palsgraf: Car- 103 dozo’s Urban Legend?” (appearing in the spring issue of quiry into ambulance chasing. One of the notable tar- the Dickinson Law Review), an article discussing the facts gets of the investigation was Dana Wallace, who was and personalities of the Palsgraf case. 104 suspended from law practice for a year. Ironically, 3. See John T. Noonan, Faces and Masks of the Law: Car- Wallace was a former Queens district attorney who had dozo, Holmes, Jefferson and Wythe as Makers of the appeared before Humphrey on numerous occasions in Masks 130 (1976). Queens County Court. The inquiry also resulted in sev- 4. Bar Extols Humphrey, N.Y. Times, Feb. 7, 1937, at 50. eral disbarments, and the firing of twelve policemen 5. Burt J. Humphrey, Ex-Justice Is Dead, N.Y. Times, Dec. 12, and the fining of two others for accepting money for so- 1940, at 27. liciting clients.105 6. New Court House Started in Queens, N.Y. Times, Oct. 10, 1936, at 15. After being in poor health for about a year, Frances 106 7. Veteran Jurist is 70 Today, L.I. Daily Press, Apr. 23, 1936, at A. Humphrey died on Oct. 13, 1939. In September 1, 2. 1940, Humphrey married Mabel Thuillard, 53, his late 8. Id. wife’s niece, and his former legal secretary. Humphrey, 9. Humphrey Proposes Hasty Marriage Curb, Brooklyn Eagle, who had himself been in poor health since suffering June 3, 1937, at A3. a stroke in 1939, died of a heart attack at his Jamaica 10. Id. Estates home on Dec. 11, 1940.107 His funeral services 11. Stroke Fatal to Humphrey, Retired Judge, L.I. Daily Press, were held at the First Presbyterian Church of Jamaica, Dec. 11, 1940, at 1, 15. where Humphrey had been an elder since 1903. The 12. N.Y. Times, supra note 5, at 27. church was filled, and the crowd of mourners outside 13. Henry I. Hazleton, The Boroughs of Brooklyn and impeded traffic. After the service, his body was returned Queens; Counties of Nassau and Suffolk Long Island New York 1609-1924 249 (1925). to Tioga County for burial in a country cemetery in 14. Burt Jay Humphrey, Democratic Candidate for County Judge, Berkshire, N.Y. [Long Island City] Daily Star, Oct. 3, 1903, at 4. 15. See Port v. Parfit, 30 P. 328 (Wash. 1892); Sayward v. Nunan, 1. Record at 55, Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 32 P. 1022 (Wash. 1893); Blumenthal v. Pacific Meat Co., 41 162 N.E. 99 (1928), reprinted in Records and Briefs of P. 47 (1895); Fairfield v. Binnian, 42 P. 632 (Wash. 1895).

Journal | May 2003 19 16. Stroke Fatal to Humphrey, Retired Judge, L.I. Daily Press, 47. Daniel A. Hearn, Legal Executions in New York State: A Dec. 11, 1940, at 1, 15. Comprehensive Reference, 1639–1963 164 (1997). 17. See Miller v. Marshall, 39 A.D. 630, 56 N.Y.S. 865 (2d Dep’t 48. Bandits in Queens Risk Life Terms, N.Y. Times, Mar. 8, 1921, 1899); In re Watts, 68 A.D. 357, 74 N.Y.S. 75 (2d Dep’t at 9. 1903) (will construction); Carberry v. Ennis, 72 A.D. 489, 76 49. 2 Sent to Sing Sing for 30 to 60 Years, N.Y. Times, Oct. 9, N.Y.S. 537 (2d Dep’t 1902) (will construction); Sherman v. 1924, at 28. Ludin, 84 A.D. 579, 82 N.Y.S. 1032 (2d Dep’t 1903) (land- lord-tenant); Kurz v. Doerr, 86 A.D. 507, 83 N.Y.S. 736 (2d 50. Long Terms for Attack; Four Young Men Held Up Auto, Dep’t 1903); Moran v. Kent, 87 A.D. 610, 84 N.Y.S. 17 (2d Bound Driver and Carried Girl Away, N.Y. Times, Nov. 2, Dep’t 1903) (husband and wife separation). 1921, at 7. 18. Hotel Dispossess Act Threatens Her Life, N.Y. Times, Mar. 6, 51. Incendiary Gets 39 Years, N.Y. Times, Feb. 8, 1921, at 5. 1903, at 1. 52. 40-Year Sentence for Payroll Robber, N.Y. Times, June 8, 19. Vote the Ticket, [Long Island City] Daily Star, Oct. 31, 1903, 1922, at 24. at 8. 53. Steals When Drunk, Can’t Keep Sober, Gets 10 Years in 20. L.I. Daily Press, supra note 11, at 27. Prison, N.Y. Times, July 11, 1922, at 14. 21. For County Judge, [Long Island City] Daily Star, Nov. 4, 54. Show Your Robber’s Nerve, Court Tells Sobbing Youth, N.Y. 1903, at 1. Times, Dec. 12, 1925, at 17. 22. She Found Burglars at Work, N.Y. Times, May 20, 1904, at 5. 55. Jails Two College Thieves; Judge Reacts Against “Education” and “Family” Pleas for Pair, N.Y. Times, Oct. 26, 1921, at 23. 23. Jamaica-Hillcrest Auction, N.Y. Times, June 11, 1911, at XX1. 56. Prisoner Quotes Bryan, N.Y. Times, Mar. 31, 1907, at 17. 24. Humphrey’s Cow Robbed, L.I. Daily Press, Mar. 15, 1936. 57. Burglar Turns on Another, N.Y. Times, Apr. 4, 1910, at 9. 25. Babe in Woods Saved By His Dog, N.Y. Times, Apr. 19, 1909, 58. Charges Grand Jury to Bar Deadly Rum, N.Y. Times, Sept. at 1. 12, 1922, at 32. 26. Cassidy the Issue in Queens Campaign, N.Y. Times, Oct. 11, 59. Fake Dry Agents Got $2000 Weekly, N.Y. Times, Jan. 23, 1909, at 2. 1923, at 23. 27. Queens Convention Halted, N.Y. Times, Oct. 3, 1909, at 7. 60. Ruling Seen As Blow to Liquor Raiders, N.Y. Times, Feb. 4, 1923, at 22. 28. Politics and Crime in Queens, N.Y. Times, June 18, at 1914, at 10. 61. Laborer Gets Back His $100,000 Liquor, N.Y. Times, May 13, 1923, at 5. 29. Corruption in Queens, letter from Rheta Childe Dorr to the editor, N.Y. Times, June 20, 1914, at 8. 62. 1921 N.Y. Laws ch. 156. 30. The Ellert Case, letter from Burt Jay Humphrey to the edi- 63. People v. 1,400 Packages Containing Scotch Whiskey, 206 tor, N.Y. Times, June 21, 1914, at 14. A.D. 711, 200 N.Y.S. 941, 941 (App. Div. 1923). 31. Judge Humphrey Helped Mrs. Eno, letter from Florence Eno 64. L.I. Railroad Convicted, N.Y. Times, Jan. 8, 1910, at 3. to the editor, N.Y Times, June 30, 1914, at 10. 65. Held for Fireman’s Death, N.Y. Times, May 8, 1923, at 23; 5 32. Humphrey Resigns as a County Court Judge, N.Y. Times, Held in Crossing Deaths, N.Y. Times, Mar. 1, 1924, at 9. Dec. 19, 1925, at 7. 66. Grand Jury Inquiry Into Wreck Monday, N.Y. Times, Aug. 6, 1924, at 16. 33. She Didn’t Throw Tomato, N.Y. Times, July 8, 1922, at 10. 67. Sent to Prison for Wreck, N.Y. Times, May 6, 1926, at 6. 34. 900 Chickens Face Jail, N.Y. Times, Apr. 27, 1922, at 6. 68. Cooks Corned Beef for Jury to Show Steam Device Is Safe, N.Y. 35. Revival Rivalry Draws Two Groups, N.Y. Times, Sept. 1, Times, Nov. 16, 1926, at 29. 1926, at 12. 69. Alarm Bell on Safe Halts Court Trials, N.Y. Times, Nov. 16, 36. Humphrey Resigns as a County Judge, N.Y. Times, Dec. 19, 1922, at 2. 1925, at 7. 70. Gangsters Riot in Court, N.Y. Times, Dec. 15, 1914, at 5. 37. Horse Thief Sentenced, N.Y. Times, Apr. 5, 1911, at 20. 71. Death Halts Story of Woman Witness, N.Y. Times, Feb. 29, 38. Says Spooks Failed to Win Sweetheart, N.Y. Times, Mar. 14, 1916, at 7. 1922, at 19. 72. Fighting Grandmother Argues Case, Wins Custody of Child, 39. Sentenced for Bigamy, N.Y. Times, Feb. 17, 1925, at 7. N.Y. Times, May 22, 1926, at 26. 40. Wife Deserter to Prison, N.Y. Times, July 16, 1911, at C11; 73. Bennett Quits Race in Favor of Lewis, N.Y. Times, Aug. 17, Court Frees Husband, N.Y. Times, May 10, 1922, at 17; Run- 1918, at 14. away Husband is Paroled, Wife is Probation Officer, N.Y. 74. Supreme Court – Second District, N.Y. Times, Nov. 4, 1920, Times, Nov. 25, 1925, at 23. at 4; City’s Vote Goes to Harding and Smith, N.Y. Times, 41. Life Term for Burglary, N.Y. Times, July 11, 1908, at 14. Nov. 3, 1920, at 1. 42. Pair Face Murder Charge, N.Y. Times, Dec. 10, 1923, at 18. 75. Queens Leaders to Meet, N.Y. Times, Aug. 7, 1915, at 2; Party Lines Drawn in Judiciary Slate, N.Y. Times, Sept. 27, 43. Miss Humann Free by Order of Judge, N.Y. Times, Dec. 15, 1925, at 26. 1921. 76. Walker Is Elected by Conclusive Vote, N.Y. Times, Nov. 4, 44. Vetters Convicted of Manslaughter, N.Y. Times, Dec. 22, 1925, at 3. 1923, at 26. 77. 9 Held in Long Beach Plot; Hotel Man and Police Plead Not 45. Boy Sentenced to Die, N.Y. Times, Apr. 19, 1921, at 7. Guilty of Rum-Running Charges, N.Y. Times, Mar. 24, 1931, 46. Sentenced to Die in Chair, N.Y. Times, July 3, 1923, at 8. at 36.

20 Journal | May 2003 78. State Wins Title to Seaman’s Gore, N.Y. Times, Apr. 24, 1932, at 23. 79. Record, supra note 1, at 48. 80. Noonan, supra note 3, at 130. 81. Record, supra note 1, at 56. 82. Id. at 57–58. 83. Section 549 permitted a judge to set aside a verdict if it was “contrary to evidence or contrary to law.” 84. Record, supra note 1, at 12. 85. See Palsgraf v. Long Island Railroad, 248 N.Y. 339, 162 N.E. 99, 100 (1928) (“If there was a wrong to [the man with the fireworks package] at all, which may well be doubted”). See also Petition of Kinsman Transit Co., 338 F.2d 708, 721 n.5 (2d Cir. 1964) (Friendly, J.) (“there is little evidence of negligence of any sort [in Palsgraf]”). 86. See Brooklyn Eagle, supra note 9, at 1, 2. 87. Puts Court Delays Up to Democrats, N.Y. Times, Oct. 25, 1927, at 31. 88. Justice Humphrey Admits Directorship, N.Y. Times, Oct. 23, 1929, at 55. 89. Two Justices Deny Land Award Waste, N.Y. Times, Oct. 14, 1930, at 27. 90. Wise Shoe Co., Inc. v. Lowenthal, 266 N.Y. 264, 194 N.E. 749, 750 (1935). 91. High Court Backs Shoe Picketing, N.Y. Times, Feb. 28, 1935, at 1. 92. Wise Shoe Co., Inc. v. Lowenthal, 242 A.D. 660, 272 N.Y.S. 612, 612–13 (App. Div. 2d Dep’t 1934), modified, 266 N.Y. 264, 194 N.E. 749 (1935). 93. Wise Shoe Co., 266 N.Y. at 269. 94. New York Lumber Trade Ass’n v. Lacey, 277 N.Y.S. 519, 520–21 (Sup. Ct., Kings Co.), rev’d, 245 A.D. 262, 281 N.Y.S. 647 (2d Dep’t), aff’d, 269 N.Y. 595, 199 N.E. 688 (1935). 95. Id. at 524. 96. Non-Union Trucks Upheld by Court, N.Y. Times, Jan. 3, 1935, at 7. 97. Ryan Will Appeal Pier Labor Ruling, N.Y. Times, Jan. 8, 1935, at 43. 98. Id. 99. 20,000 Drivers Quit Tying Up Wharves, N.Y. Times, Jan. 29, 1935, at 1. 100. Ship Union Curb Voided on Appeal, N.Y. Times, July 13, 1935, at 27. 101. New York Lumber Trade Ass’n v. Lacey, 245 A.D. 262, 281 N.Y.S. 647 (App. Div. 2d Dep’t), aff’d, 269 N.Y. 595, 199 N.E. 688 (1935). 102. Burglar Ransacks Judge’s Residence, N.Y. Times, May 20, 1935, at 19. 103. Humphrey Is Sworn In: Former Justice Takes Post as Referee in Brooklyn, N.Y. Times, Jan. 3, 1937, at 39. 104. Dana Wallace Gets Year’s Suspension, N.Y. Times, Jan. 1, 1938, at 2. 105. Two Policemen Fined for Accepting “Gifts,” N.Y. Times, July 19, 1938, at 5. 106. Obituary, N.Y. Times, Oct. 15, 1939, at 39. 107. N.Y. Times, supra note 5, at 27.

Journal | May 2003 21 View From the Bench Preparing an Expert Witness Is a Multi-Step Process

BY JOHN P. D IBLASI

ne of the most difficult tasks that confront trial The testimony of an expert may be offered to support attorneys is preparing an expert witness to tes- or contradict the testimony of a fact witness. An exam- Otify, and the questioning of such a witness on di- ple would be in a case where an accident reconstruction rect and cross examination. This article describes a basic expert is called to support or contradict the testimony of 7 format to assist counsel in developing a consistent ap- a witness with respect to the happening of an accident. proach to the preparation and questioning of an expert Although this testimony may be allowed, it is within the witness. discretion of the trial court to determine whether the It is assumed at the outset that counsel who calls the testimony will help to clarify an issue that is beyond the expert as a witness has served a discovery response in knowledge of the typical juror. Generally, an attempt by compliance with the statutory requirements.1 The fail- counsel to have an examining physician, or almost any ure to do so may result in the witness being precluded other expert, testify as to the credibility of a fact witness from giving testimony in whole or in part.2 is not allowed. In this situation the expert opinion im- pinges on the jury function of determining the issue of Is the Expert Witness Necessary? the lay witness’ credibility. This type of expert testimony A threshold question that must be answered is turns the trial into a “battle of conflicting experts on the whether the witness is necessary to the case, and collateral issue of credibility.”8 whether in fact such testimony will be allowed by the A common error is the failure of counsel to under- court. stand when expert testimony is needed to make a prima The Court of Appeals has held that as a “general rule facie case. In almost every action involving professional the admissibility of expert testimony on a particular negligence, such as medical malpractice, you will need point is addressed to the discretion of the trial court.”3 expert testimony to establish a prima facie case. There is The fact that you wish to call an expert to give an opin- no issue as to the necessity of the expert testimony. The ion does not mean that the court will allow you to do so. expert must give an opinion regarding the accepted The Court of Appeals has further held that the “guiding standard of the profession and the deviation from principle is that expert opinion is proper when it would same.9 Generally, the expert must also give testimony as help to clarify an issue calling for professional or techni- to proximate cause, specifically that the deviation re- cal knowledge, possessed by the expert and beyond the sulted in the injuries and damages sustained.10 In a ken of the jury.”4 It is the trial court’s responsibility, in products liability case expert testimony is necessary to the first instance, to determine whether the jurors are establish a defect in the designing, making, inspecting able to draw a conclusion based upon their experience, and testing of a product and that said defect was a sub- observations, and knowledge, and “when they would stantial factor in causing the plaintiff’s injuries and be benefitted by the specialized knowledge of an expert damages.11 witness.”5

The Civil Pattern Jury Instruction pertaining to ex- JOHN P. D IBLASI has been a justice of pert witnesses states that: the state Supreme Court, Westchester When a case involves a matter of science or art or re- County, since 1994. From 1990–1994, quires special knowledge or skill not ordinarily pos- he was a city court judge in Mount sessed by the average person, an expert is permitted to Vernon. A fellow of the American Bar state his opinion for the information of the court and Foundation, he has taught trial advo- jury.6 cacy skills at Pace University School of Law and his alma mater, St. John’s It must be shown that the expert testimony is needed University School of Law. He is a or the court, in its discretion, may refuse to admit such graduate of Syracuse University. evidence.

22 Journal | May 2003 On the issue of damages, unless the amount is liqui- • If the expert is not needed to establish a prima facie dated, expert testimony is almost always needed. In a case, will the court allow such testimony? contract action for goods sold and delivered, but not • If an expert is not needed to establish liability, is an paid for, the damages are liquidated in that they may be expert required to prove damages? determined by referring to the contract. No expert testi- • Is more than one expert necessary? mony is needed in such a case. In commercial actions, • If more than one expert is being called, is there any however, it is very common for attorneys to establish a cumulative testimony that is likely to be excluded by the prima facie case of liability through fact witnesses and to court? fail to have an expert available to testify as to damages that are not liquidated. Examples of this would be ac- Is the Witness Properly Qualified? tions where damages are sought for diminution in the Assuming the court will allow the testimony of the value of real property, loss of the value of goods, loss of expert, the court must next decide if the witness is prop- profit, etc. erly qualified to testify to an opinion.16 This is where the In personal injury actions, it is almost impossible to EXPROB analysis (see the checklist on page 25) begins. prove injuries and damages without an expert. In such There is no rigid rule requiring that the witness has a case a medical expert must testify regarding the diag- gained his expertise in a certain way. The expert may be nosis, the causal connection between the accident and found qualified to give an opinion based upon study, the injuries, the prognosis for recovery and future dis- observation or experience.17 It is the responsibility of the ability. jury to consider the expert’s qualifications in evaluating An exception to the rule that expert testimony is the weight to be given that expert’s opinion testimony. needed to prove a prima facie case in malpractice actions The court will instruct the jury that the opinion of the is where the plaintiff is relying on a theory of res ipsa lo- expert “is entitled to such weight as you find the ex- 18 quitur.12 In medical malpractice actions this would in- pert’s qualifications in the field warrant.” volve a foreign object, such as a sponge, being left in the One format to be followed in qualifying a witness as body of the patient. In this instance it must be estab- an expert is to ask questions regarding the following: lished that the accident would not ordinarily occur • What is your educational background? without negligence, that it was caused by an agent or in- • What professional training have you received? strumentality in the exclusive control of the defendant, • Where have you been professionally employed? and that the accident was not due to any voluntary ac- • Do you have any professional licenses? Or in the tion or contribution on the plaintiff’s part. case of a physician: Are you duly licensed to practice The Court of Appeals has also held that where “the medicine and surgery in this state? very nature of the acts complained of bespeaks im- • Do you have any special certifications in your pro- proper treatment”13 no expert testimony is necessary. In fession? In the case of a physician: Are you board certi- a case where the treatment of a psychiatrist consisted of fied in any medical specialty? beating the patient during therapy sessions, the Court of • Are you a member of any professional societies or Appeals held that the “defendant can hardly urge that organizations? the plaintiff must call an expert to demonstrate the im- • Have you received any awards or honors from 14 propriety of the assaultive acts.” In a legal malpractice your profession? action, a failure to comply with a statute that is a condi- • Do you hold any teaching positions or have you tion precedent to commencing an action would fall into given any lectures in your area of expertise? the same category. The failure to commence an action • Are you the author of any publications? within the time allowed by the statute of limitations or Keep in mind that an expert does not necessarily the failure to file a notice of claim is improper on its face. have to be licensed in a field to give expert testimony,19 An expert need not be called to establish legal malprac- nor does a physician have to be a specialist in a specific tice in this situation. However, in both instances expert area of medicine to give an opinion.20 It is, however, im- testimony will be required on the issue of damages. portant to have witnesses testify to the fact that they are Finally, in the case where counsel will call more than board certified in medicine, or have received special cer- one expert witness, the court in its discretion may limit tification in any field. Witnesses should also explain the the testimony of said witnesses on the ground that it is process whereby they became so certified, and what the 15 repetitive and therefore cumulative. certification means within the profession. Counsel must determine before retaining an expert In your investigation or preparation of the expert witness: witness to testify, an attempt should be made to deter- • Is an expert needed to establish a prima facie case? mine whether anything in the witness’s background

Journal | May 2003 23 would have a negative impact on his credibility. If there While trying a case, counsel for a defendant called an is anything negative in the witness’s professional back- expert who often testified for defendants. Counsel ground and you have no choice but to call this witness, avoided going into the compensation issue clearly hop- it is far better to bring out any negative facts in the wit- ing that it would not be covered on cross examination. ness’s background on direct examination. If you fail to On cross examination, the expert testified about his ex- do so, your adversary will on cross examination. This orbitant compensation, that he had testified more than will surprise the jury, creating the appearance that the 100 times as an expert, that he had reviewed thousands witness and counsel have concealed facts, and maxi- of files as an expert for defendants only, that his income mize the impact of the negative background informa- of $700,000 per year was derived solely from such re- tion. views and testimony, and that he no longer practiced Finally, attorneys sometimes will concede that a wit- medicine. The jury’s punitive verdict, assessed against ness is qualified to give an expert opinion, thereby hop- this defendant, was the direct result of this testimony. ing to prevent the jury from hearing his qualifications. Areas that must be addressed on direct or cross ex- Usually, this is in a case where the qualifications of the amination are as follows: adversary’s expert may be far superior to the expert to • How much is the witness being compensated for be called by the attorney who wishes to make the con- his time in court today? cession. While this is a good tactic, counsel will not be • What was his compensation for any pre-trial re- precluded from having the jury hear the expert’s quali- 21 view and preparation? fications by virtue of such a concession. • How many times has the witness testified as an ex- What Is the Witness Being Paid? pert in the past? Once the witness has been properly qualified as an • How many times has the witness reviewed files for expert, compensation and related issues that may affect attorneys without testifying in the past? the witness’s credibility should be fully and adequately • How many times has the witness testified as an ex- addressed during direct examination. It is a mistake to pert or reviewed files for trial counsel and his firm? assume that questions regarding these issues will not be • For which side does the expert usually conduct re- asked on cross examination. views and testify? In this information age, it is easy to ascertain the • What percentage of the witness’s income is derived number of times a witness has testified, for whom and from performing reviews and giving testimony? whether the witness has given prior testimony in other • If the witness was not present in court today, what proceedings regarding the same issues that are in dis- would he be doing? pute in the present case. It is a mistake to assume that your adversary will not be prepared to ask questions re- What Has the Expert Reviewed? garding these issues on cross examination. Therefore, it This topic has very serious ramifications that not is recommended that on direct examination counsel only have an impact on the witness’s credibility in gen- question the expert as to his compensation and any re- eral, but on the foundation for the opinion given by the lated issues. The jury should not hear this testimony for expert. It is imperative that an expert witness be given the first time during cross examination. As with any for review everything in the possession of counsel that negative in your case, by being the first to expose it you might in any way bear on the opinion. It is extremely reduce its potential adverse impact on the jury. Further, damaging to the credibility of the expert witness to have it makes your adversary appear as if he is rehashing reviewed some of the records but not all, some of the de- what has already been disclosed on direct examination. position testimony but not all, some of the trial testi- The expert’s compensation and related issues should mony but not all. If any of these materials are relevant to also be addressed early in the direct examination. This the basis for the opinion, they must be provided to the information will be forgotten by the time the jury hears witness. The expert witness must be ready to justify or the expert’s opinion. Jurors exhibit a negative reaction distinguish the opinion in light of materials that do not when they hear information regarding compensation support it. Some attorneys believe that they will get and related issues after the expert has rendered an opin- away with not providing some essential materials to the ion, and at the end of the direct examination. It seems to witness and that this will not be brought up on cross ex- immediately undermine any credibility that has been amination. This is a mistake. created during the direct, and serves as a perfect lead-in Further, it is not credible that a witness who claims to to the adversary’s cross examination. Ask questions re- have reviewed numerous documents, pleadings and garding compensation and related issues early in the di- testimony in a case has not taken any notes. No juror be- rect examination of the expert and you will reduce any lieves this. Time and again jurors listen to the testimony negative effect. of experts who are able to perform the feat of absorbing

24 Journal | May 2003 an enormous amount of written information in coming to an opinion without taking a single note. In the event the witness admits to having taken notes the fact that The EXPROB Checklist they have not been brought to court will affect the expert witness’s credibility and the weight the jury gives The mnemonic EXPROB can provide a handy his testimony. way to remember the key topics to be covered in the The areas to be covered with respect to the expert’s process of enhancing an expert’s probability of being review on direct or cross examination are: successful on the witness stand. EX-Experience: • What materials did the witness review prior to What are the qualifications of the coming to court to testify? expert? Is he or she qualified to render an opinion? P-Pay: • Are there any relevant materials that were not re- When was the expert first retained? What viewed? type of compensation is being received? Has the expert ever testified before? For whom? What percent- • Was the witness aware of the existence of the mate- age of the expert’s income comes from testifying? rials not provided? What would the expert be doing if not appearing in • Has the witness brought the materials that were re- court? viewed to court? R-Review: What material has the expert reviewed • Were any notes made based upon the review of in reaching an opinion? Are there any relevant mate- these materials by the witness? rials that were not reviewed? Has the expert brought • Did the witness bring the notes to court? to court the materials that were reviewed? Did the • Before the review, did counsel tell the witness what expert make any notes based upon the review? Did opinion that was being sought? the expert bring the notes to court? • Did the witness bring to court the transmittal let- O-Opinion: What type of question will be used to ters and any other correspondence pertaining to his re- elicit the expert’s opinion? In what manner will the view and the opinion to be given? expert answer? Is the expert’s testimony cumula- What Is the Opinion? tive? CPLR 4515, form of expert opinion, reads as follows: B-Basis: Is the foundation for the expert opinion contained in the record? What is the basis for the Unless the court orders otherwise, questions calling for opinion? Is the opinion based upon the testimony of the opinion of an expert witness need not be hypothet- another witness in the proceeding or on information ical in form, and the witness may state his opinions and reasons first without first specifying the data upon known to the witness from outside the proceeding? which it is based. Upon cross examination, he may be Does the basis for the expert opinion contain infor- required to specify the data and other criteria support- mation that is false, inaccurate or incomplete? ing the opinion. CPLR 4515 gives counsel the option to elicit the expert opinion without using a long hypothetical question Another area of concern is the form in which the ex- that asks the witness to assume certain facts. An expert pert opinion is given. Usually, the expert will state his witness need not set forth the basis for the opinion when opinion with “a reasonable degree of certainty or prob- asked a hypothetical question seeking an opinion based ability.” There is no requirement that the opinion be upon specific facts.22 given in this or any other specific form. The opinion The problem with hypothetical questions is that they may be given in are always long, complex and therefore confusing to the any formulation from which it can be said that the wit- jury. Such questions often invite an objection to the form ness’ “whole opinion” reflects an acceptable level of of the question which if sustained, results in the ques- certainty. . . . To be sure, this does not mean that the tion being repeated. This only adds to the jury’s confu- door is open to guess or surmise, and admittedly, “a de- sion. Further, counsel always risks an objection to the gree of medical certainty,” taken literally and without more, could very well be so characterized.23 question on the ground that it assumes facts that are not in evidence. The opinion may not be a guess or speculation. It is rare for an attorney to fail to ask the expert the Accordingly, it is suggested that counsel take advan- reasoning underlying the opinion, even though this is tage of the intent of the Legislature’s liberalization of the not required. A jury would have little reason to believe common law rule that required the expert’s opinion to the opinion of a witness who does not clearly set forth be elicited through the use of a hypothetical question. the basis for the opinion and the reasoning used in Pursuant to CPLR 4515, counsel may ask the following reaching same. questions to elicit the expert’s opinion:

Journal | May 2003 25 As to liability: opinion in whole or in part and have the jury disregard • Do you have an opinion with a reasonable degree same. of (medical, engineering, etc.) certainty or probability as Counsel who calls the expert witness must be sure to . . . ? that there is a proper foundation for the expert opinion. • What is your opinion? This issue is often not determined by the court until an • What is the basis for your opinion? objection is made after the opinion has been given. Be- As to proximate cause: cause a hypothetical question setting forth the facts • Do you have an opinion with a reasonable degree upon which the opinion is based is no longer required, of (medical/engineering, etc.) certainty or probability as the expert’s opinion may be elicited without any refer- to whether the defendant’s (departure from accepted ence to the underlying facts. This results in the objection practice/product defect, etc.) was a substantial factor in being made after both the opinion and basis therefor causing the plaintiff’s injuries and damages? have already been testified to. • What is your opinion? There are two narrow exceptions to the rule that the • What is the basis for your opinion? opinion must be based upon facts in the record or the These questions may be easily modified for any type personal knowledge of the expert. If the expert is rely- of expert witness. ing on out-of-court material, it must be “of a kind accepted in the profession as reliable in forming a profes- Counsel will often encounter an objection to the form sional opinion” or it must come “from a witness subject of the question where the expert witness is asked to give to full cross examination on the trial.”29 With scientific an opinion as to the ultimate question of fact that will be evidence, admissibility is determined by “general ac- submitted to the jury. Such a question is appropriate ceptance of the procedures and methodology as reliable where the opinion of the expert is supported “by objec- 30 tive evidence.”24 It is appropriate therefore, for a doctor within the scientific community.” in an automobile accident case to testify to the perma- Once the factual basis for the opinion is set forth in 31 nent, significant or consequential limitations caused by the hypothetical or through the expert’s referral to an 32 the plaintiff’s injuries, even though the jury questions exhibit in evidence, the witness is not required to set will be asked in the same form.25 forth the reasoning or technical data underlying the Finally, there is often much confusion regarding the opinion. The failure of the witness to set forth the rea- form of the witness’s opinion regarding proximate soning for the opinion may be considered by the jurors 33 cause. Assuming the question is asked in the form set in evaluating the weight they will give it. The specific forth above, the risk is reduced. There are times, how- data upon which the opinion is based need not be ever, where the witness may give a response that is not brought out on direct examination and may be raised 34 as certain as counsel would like. The Court of Appeals for the first time on cross examination. has upheld cases where the expert’s opinion on causa- In the event the facts underlying the expert’s opinion tion consisted of language that included “likely to in- are not contained in the record of the court, the witness crease,” “could have caused,” “could be,” “possibly must first set forth those facts prior to giving the opin- was,” “probably was,” “possible cause” and “it seems to ion.35 be.”26 On cross examination, counsel must ask questions What Is the Basis for the Opinion? that show the witness has based the opinion on facts that are not true, or are inaccurate, unreliable or incom- The opinion(s) stated by the (each) expert who testified plete. before you (was, were) based upon particular facts, as Topics that counsel should consider regarding the the expert obtained knowledge of them and testified to them before you, or as the attorney(s) who questioned basis for the expert’s opinion to be elicited at trial are: the expert asked the expert to assume.27 • Is there sufficient evidence in the record to support the expert’s opinion? The basis for the opinion is really the evidentiary foundation for the opinion set forth in the record. The • Is the witness basing that opinion on facts person- Court of Appeals has held, “It is settled and unques- ally known to him or her? tioned law that opinion evidence must be based on facts • If the witness is not relying upon facts in evidence in the record or personally known to the witness.”28 A or information that he or she has personal knowledge failure to establish a proper evidentiary foundation in of, is the witness relying upon a statement of a person the record, either through the facts in the record, the per- who will testify at the trial and is subject to cross exam- sonal knowledge of the expert, or a combination of both ination; or, if based upon out of court material, is it of a will result in a successful motion to strike the expert’s type accepted in the witness’s profession as reliable?

26 Journal | May 2003 • If the witness is relying on facts known to him or 3. De Long v. Erie, 60 N.Y.2d 296, 305, 469 N.Y.S.2d 611 her but not contained in the record, is the witness pre- (1983). pared to set forth those facts in advance of stating the 4. Id. opinion? 5. People v. Cronin, 60 N.Y.2d 430, 431, 470 N.Y.S.2d 110 (1983). • Will the expert’s opinion be elicited through a hy- 6. 1A New York Pattern Jury Instructions – Civil 1:90 (3d pothetical question that sets forth the facts upon which ed., West Group 2002) (PJI). the opinion is based? 7. Sitaras v. Ricciardi, 154 A.D.2d 451, 545 N.Y.S.2d 937 (2d • Will the expert’s opinion be elicited through a ques- Dep’t 1989). tion that is not hypothetical and does not contain the un- 8. Kravitz v. Long Island Jewish-Hillside Med. Ctr., 113 A.D.2d derlying facts? 577, 580, 497 N.Y.S.2d 51 (2d Dep’t 1985). • If a question that is not a hypothetical is asked, is 9. Prete v. Rafla-Demetirous, 224 A.D.2d 674, 638 N.Y.S.2d 700 (2d Dep’t 1996). the expert witness prepared to clearly set forth the basis for the opinion? 10. Id. 11. 1A PJI 2:120. • Is any information upon which the expert is basing 12. Kambat v. St. Francis Hosp., 89 N.Y.2d 489, 655 N.Y.S.2d the opinion subject to question? 844 (1997); 1A PJI 2:65. Preparing the Expert to Testify 13. Hammer v. Rosen, 7 N.Y.2d 376, 379, 198 N.Y.S.2d 65 (1960). The fact that a person is an “expert” creates in that 14. Id. witness an attitude of superiority that in many cases 15. Abbott v. New Rochelle Hosp. Med. Ctr., 141 A.D.2d 589, makes the person difficult for counsel and the court to 591, 529 N.Y.S.2d 352 (2d Dep’t 1988). control. If you have read all of the above, it should be 16. Meiselman v. Crown Heights Hosp., 285 N.Y. 389, 397, 34 clear as to each and every area you must cover to ade- N.E.2d 367 (1941). quately prepare an expert to testify. There is no question 17. Caprara v. Chrysler, 52 N.Y.2d 114, 121, 436 N.Y.S.2d 251 that expert witnesses present particular problems for (1981). counsel. They are easily offended, do not like to be con- 18. 1A PJI 1:90. trolled and sometimes do more harm than good for the 19. People v. Rice, 159 N.Y. 400, 409, 54 N.E. 48 (1899). client’s case if antagonized during the preparation 20. Forte v. Weiner, 200 A.D.2d 421, 606 N.Y.S.2d 220 (1st process. That being said, I would suggest that expert Dep’t 1994). witnesses be prepared with due regard for their egos, 21. Counihan v. J.H. Werbelovsky’s Sons, Inc., 5 A.D.2d 80, 82, but in the same way that any other witness is pre- 168 N.Y.S.2d 829 (1st Dep’t 1957). pared.36 22. Tarlowe v. Metropolitan Ski Slopes, Inc., 28 N.Y.2d 410, 413, 322 N.Y.S.2d 665 (1971). The court will instruct the jury during its charge that 23. Matott v. Ward, 48 N.Y.2d 455, 458, 423 N.Y.S.2d 645 the testimony of the expert “is subject to the same rules (1979). concerning reliability as the testimony of any other wit- 24. Dufel v. Green, 84 N.Y.2d 795, 798, 622 N.Y.S.2d 900 (1995). 37 ness.” As discussed, it is essential that counsel prepare 25. Id. the expert with respect to all of the potential defects or 26. See Matott, 48 N.Y.2d at 460. weaknesses in the expert’s testimony during direct ex- 27. 1A PJI 1:90. amination. This will serve to reduce the adverse effect 28. Hambsch v. New York City Transit Auth., 63 N.Y.2d 723, 725, such information will have on the jury when elicited 480 N.Y.S.2d 195 (1984). during cross. 29. People v. Sudgen, 35 N.Y.2d 453, 460, 363 N.Y.S.2d 923 (1974). Conclusion 30. People v. Angelo, 88 N.Y.2d 217, 221, 644 N.Y.S.2d 460 (1996); see People v. Lee, 96 N.Y.2d 157, 162, 726 N.Y.S.2d This basic outline of strategy and the case law that in- 361 (2001). volves an expert witness is just the beginning. The ded- 31. See Tarlowe v. Metropolitan Ski Slopes, Inc., 28 N.Y.2d 410, icated practitioner will read as many articles on this 413, 322 N.Y.S.2d 665 (1971). topic as possible, the cases cited in this article, and the 32. People v. Crossland, 9 N.Y.2d 464, 465, 214 N.Y.S.2d 728 many other cases on this topic that are important but (1961). could not be included in this discussion. 33. See Tarlowe, 28 N.Y.2d 410. 34. CPLR 4515. 1. CPLR 3101(d)(1). 35. People v. Jones, 73 N.Y.2d 427, 430, 541 N.Y.S.2d 340 (1989); 2. For an excellent look at the issue of expert witness dis- Mandel v. Geloso, 206 A.D.2d 699, 614 N.Y.S.2d 645 (3d covery, see Richard S. Basuk, Expert Witness Discovery for Dep’t 1994). Medical Malpractice Cases in the Courts of New York: Is It 36. John P. DiBlasi, Preparing Your Witness for Trial, N.Y. St. Time to Take Off the Blindfolds?, 76 N.Y.U. L. Rev., 527 B.J., Vol. 65, No. 8, at 48 (Dec. 1993). (2001). 37. 1A PJI 1:90.

Journal | May 2003 27 CLE Insights: Evidence Current Trends On Rules for Hearsay

EDITOR’S NOTE: The following is another in a series of articles reflecting insights and information prepared for Continuing Legal Education presentations. The digest of the speaker’s outline provides citations for new concepts and authorities, but well-established principles are not documented in detail.

BY ROBERT A. BARKER

or many years the general rule when invoking the to confirm the conclusions drawn by the experts follow- professional reliability exception was that expert ing their own examination of the plaintiff. In Torregrossa Ftestimony had to be based on the expert’s own ob- v. Weinstein5 an MRI report was let in even though the servations, and on material introduced in evidence. In doctor who prepared it did not testify; plaintiff’s treat- 1974, the Court of Appeals created two exceptions in ing physician was allowed to testify on the basis of his People v. Sugden.1 own examination and his reliance on the report. First, if individuals interviewed by the expert testi- In Wagman plaintiff’s counsel, no doubt relying on fied at trial, the expert could use that information in Pegg and Torregrossa, produced an expert witness, a chi- forming and expressing an opinion, because the source ropractor, who based his testimony on a report, written could be cross-examined. Second, the expert could rely, by a medical professional who was not a witness, inter- at least in part, on material not in evidence if it “is of a preting an MRI result. The Wagman court ruled that this kind accepted in the profession as reliable in forming a type of procedure could no longer be followed. The professional opinion.” The court cited Federal Rule of court stated that an unsupported MRI report should not Evidence 703, which expressly provides for an expert’s be allowed in evidence in the first place, and that such reliance on non-record material if it is of a sort “reason- an error is compounded by permitting an expert witness ably relied upon by experts in the particular field.”2 to base some of his opinion on the contents of the inad- Although the “professional reliability” exception is missible report. usually included in the expert testimony category, it is As Justice Luciano succinctly stated, “The plaintiff essentially an exception to the hearsay rule – informa- was thus allowed to place in evidence, by way of a treat- tion finds its way into evidence for its truth even though ing chiropractor, a subjective interpretation of MRI the declarant(s) cannot be cross-examined. True, that in- films, from an inadmissible report written by a non-tes- formation is found in the opinion of a witness who is tifying health care professional.” All of this was deemed subject to such cross-examination, but the cross-exam- a violation of the hearsay rule and the best evidence iner is stymied when attempting to test the validity of rule. The Wagman court thus rejected this use of the pro- that underlying premise or information. fessional reliability exception and said Pegg and Torre- grossa should no longer be followed. In March of 2002 the Appellate Division, Second De- partment handed down an opinion on this issue in Wag- 3 man v. Bradshaw. Not only did it thoroughly discuss the ROBERT A. BARKER is professor of law professional reliability exception, it also shook up the emeritus at Albany Law School, where personal injury bar in the process. he taught courses in evidence, consti- Lawyers had come to rely on two cases to ease their tutional law, civil procedure, civil liti- medical proof requirements. Pegg v. Shahin4 held that it gation and products liability. Earlier, was permissible for plaintiff’s experts to base their opin- he was an attorney with the U.S. Jus- ions on the results of x-rays and MRI tests found in writ- tice Department and an assistant at the Appellate Division in Albany. He ten reports interpreting those procedures. Neither the x- graduated from Syracuse University rays nor the MRI results were in evidence, and those and received his J.D. from its law school. He is the co-au- who made the interpreting reports were not witnesses at thor (with Vincent Alexander) of Evidence in New York and the trial. All of this was justified under the professional Federal Courts (West 2001). reliability exception, because that information was said

28 Journal | May 2003 The court returned to basic principles set forth in It seems rather obvious that the problem cases arise Hambsch v. New York City Transit Authority.6 There, the because counsel try to cut corners. There is no reason basis of the expert’s opinion was his discussion with a why the x-ray cannot be expeditiously introduced. In nontestifying radiologist whose information was, in that regard, if the statutory requirements are met, CPLR turn, based on an “unknown” study. The Court of Ap- 4532-a provides for almost summary admissibility of x- peals rejected the professional reliability exception be- rays, MRIs, computed axial tomographs, positron emis- cause there was no “reliability” to the outside data. sion tomographs, electromyograms, sonograms and The Court cited Justice Ye- fetal heart rate strips. Even if sawich’s concurring opinion an x-ray is missing the Court in Bordon v. Brady7 where he Not only did Wagman v. Bradshaw of Appeals has held that said, “Reliability of the mate- secondary evidence (a physi- rial is the touchstone; once discuss the professional reliability cian’s report and his testi- reliability is established, the exception, it also shook up the mony based on his examina- medical expert may testify tion of the x-ray) may be about it even though it personal injury bar in the process. admissible.8 Remember also would otherwise be consid- that x-rays or any of the ered inadmissible hearsay.” other test results can come In other words, if the reliability of the out-of-court data into evidence as part of the hospital record under the is established, the professional reliability exception can business record rule (CPLR 4518), discussed later. be applied and the expert may properly give an opinion Obviously, the best trial witness will not be a chiro- based on his or her study of that material. practor if, as in Wagman, he bases his opinion on the re- The Wagman court found no reliability to the material ports of others in areas where his expertise may be ques- underlying the chiropractor’s opinion. He never saw tionable. If the expert relies on an identifiable report the MRI films, and there was no information as to the made by a named health professional, that may be author of the MRI report or the extent to which the films enough under the professional reliability exception; but were actually interpreted. why not get the report into evidence? If it is not expedi- Reliability Exception Tightened ent to produce the maker of the report at trial, at least Clearly, the exception has been tightened consider- get his or her deposition under CPLR 3101(a)(3) and in- ably, but it is not dead. Rather, two questions emerge: troduce it at trial under CPLR 3117(a)(4), if for no other (1) how does one show reliability? and (2) what is the reason than to authenticate the report. out-of-court data that qualifies under the professional The second question concerns the sort of data needed reliability exception, even if it is reliable? to make out the reliability of the material itself. In the The first question is based on a concept underlying seminal Sugden case, the psychiatrist who testified for any hearsay exception. Material is allowed in evidence the prosecution had interviewed the teenaged defen- because there is little chance that it will have been fabri- dant (who claimed insanity), read the statement given to cated. For example, the business record rule is based on police by an eyewitness (who testified at trial), exam- the idea that the information, having been routinely ined a psychologist’s report made when defendant was gathered, will be truthful and accurate. Another is the age 7 (together with other psychiatric and medical re- spontaneous utterance rule, because whether it is based ports), and received defendant’s written confession and on excitement or represents a statement of present the written statements of four other persons involved in sense, it will be truthful because there is no time to con- the crime (only one of whom did not also testify). This jure a fabrication. Similarly, statements made for med- was deemed to be the sort of material commonly relied ical diagnosis and treatment are deemed reliable since it upon when a psychiatrist makes his evaluation, as long would be unlikely that a patient seeking the proper as he is rendering his own evaluation based on that in- treatment would lie about his or her symptoms. formation and not merely adopting it. There seemed to Therefore, to make use of the professional reliability be no issue in Sugden as to the reliability of the out-of- exception the out-of-court material must at the very court medical information. least be clearly identified. The testifying witness should On the other hand, later Appellate Division cases be able to recite chapter and verse as to her sources. Did provide no bright-line test. In Brown v. County of Albany9 she read the reports of other doctors? Who were they? In a medical expert’s opinion was held properly excluded what context were these reports reviewed? Did she rely where the sole basis was reliance on a report of a non- on x-rays or MRIs? If so, why not simply introduce the testifying orthopedist who had treated plaintiff. Al- exhibit and have the witness testify directly with respect though the report itself was in evidence, there was no to it? evidence to establish its reliability, which rested on the

Journal | May 2003 29 history taken from plaintiff. In Rosa v. Rinaldi,10 a med- tablishing requisites 1–3 (not necessarily by the person ical malpractice case, defendant’s expert medical wit- who actually made the entries, but by any person famil- ness, who had not examined plaintiff, based his opinion iar with the business procedures); and (5) those persons on defendant’s office records, operative report, post-op- who had provided the information entered in the erative x-rays and reports prepared by four other physi- records must have had a business duty to do so. The cians who had examined plaintiff (only two of whom fifth requisite has proven to be the most troublesome. testified). This was held an inadequate basis for the ex- What is the source of the information that finds its way pert’s testimony, the court finding that he could not base into the business record?13 his opinion on out-of-court materials not established as Recent cases can serve to jog the memory and pro- reliable, or rely on opinions of others who did not tes- vide a refreshed understanding of what will, and what tify. will not, constitute a business record under CPLR 4518. In Cleary v. City of New York11 an expert could not tes- The question in one case was whether the results of tify to an opinion formulated from information conan IQ test prepared by a psychologist at the time of a tained in an ambulance report unless the report was in particular individual’s admission into the Association of evidence. On the other hand, in Greene v. Xerox Corp.12 Retarded Citizens (ARC) was admissible under the the court approved the opinion testimony of a voca- statute. An ARC employee testified that medical and tional rehabilitation expert based on a labor market sur- psychological background information were essential vey he had conducted by telephone, finding that this is for counseling, and that the IQ levels determined the sort of data accepted in whether individuals could the profession as reliable. Recent cases can serve to jog the be accepted in the ARC pro- These examples are not gram. The psychologist’s IQ easy to reconcile, and the an- memory and provide a refreshed report was admitted because swers to the two questions it was standard procedure posed above are not clear- understanding of what will, and that such intake reports be cut. And, of course, the what will not, constitute a business made and filed. The fact that questions of reliability and the psychologist was not an the sort of data that can be record under CPLR 4518. ARC employee was not relied upon overlap. After fatal, although where a busi- Wagman, all that can be said with any certainty is that ness or professional entity the chances of satisfying the professional reliability ex- receives records prepared by others, a foundation for ception increase in proportion to the extent that the ma- admission usually cannot be established by the recipi- terial relied on can be identified and introduced. Intro- ent. Here, however, the psychologist worked for and on duction in evidence obviously reduces, if not altogether behalf of the ARC and the ARC foundation witness eliminates, the need to rely on the exception. In the end, could establish compliance with the ARC require- 14 careful counsel will have to thoroughly explore the ments. sources of his or her expert’s proposed testimony and In another case, information in a job application such make sure either that the professional reliability excep- as address, references and the usual contents of such an tion can be fully justified, or that as much relied-on data application were held admissible as a business record. as possible is put in evidence. Although the applicant was not yet an employee, there was a guarantee of reliability because the applicant Business Records knew that any false information would be grounds for CPLR 4518(a) (and its counterpart, Fed. R. Evid. rejection. The application form and also a W-4 tax form 803(6)) is without doubt the most frequently used completed by the applicant were routine requirements. hearsay exception. Indeed, it is relied on to such an ex- The court noted that “[m]aintaining accurate personnel tent that carelessness can easily creep in. It must always and tax records is a necessary function of virtually any be remembered that there are firm requirements that business.”15 have to be met, as set forth in the statute. How about a retail store’s financial records to prove a There are five statutory and case law requisites: deceased customer’s debt? Owners of a grocery store (1) the record must be made in the regular course of the lodged a claim against decedent’s estate, decedent hav- business or profession; (2) it must be the regular course ing been a credit customer who left over $95,000 unpaid. of business to make the record; (3) the record must have The estate claimed that since plaintiff was a grocery been made at the time of the transaction or within a store and was not a lending institution, charge slips and short time thereafter; (4) a foundation must be laid es- ledger sheets could not come in under CPLR 4518. The

30 Journal | May 2003 court ruled that the owner’s foundation testimony was practical Federal Rules of Evidence. Under section entirely sufficient to establish regularity of these 801(d)(2)(D), an admission by an employee, whether au- records, which were of course essential to the grocery thorized or not, is admissible against the employer so business.16 long as it was made during the relationship and con- An entire case file maintained by a child protective cerned a matter within the scope of the relationship. agency was held admissible under the statute. It con- Given the recent reaffirmation of the rule in the state sisted of entries made by caseworkers relating to the courts, however, attorneys must continue to puzzle over welfare of the subject children, and appellant’s counsel what constitutes proof of “speaking authority.” In that was afforded an opportunity to review the file prior to regard, language in Spett v. President Monroe Building its coming into evidence.17 This is to be compared to so- & Manufacturing Corp.24 is helpful. There, a statement cial services records containing information given by harmful to defendant building owner (one Rose Levine, people who had no business duty to give it – i.e., friends, doing business as Harvey Printing Co.) was uttered by neighbors, family members – rendering the records in- her husband, the “general foreman.” The court stated: admissible.18 In the instant case Albert Levine’s authority as agent for Letters and other correspondence that make their his wife, the defendant here, seems clearly to have been way into the recipient’s business file will not be admis- broad enough to include an admission of Harvey’s re- sible under CPLR 4518. The sender, being outside the sponsibility for placement of the skid receivable against organization, would have had no routine business duty the defendant. Although called merely “general fore- to furnish the information.19 man,” Levine was apparently the person who ran Har- vey, in whom complete managerial responsibility for Finally, a physician’s office records are usually ad- the enterprise was vested. missible under the business records exception, but a disability report dictated over the phone by plaintiff’s Thus, the necessary authority can be drawn from the cir- physician and transcribed by the Department of Dis- cumstances which, in addition to the employee’s actual ability was not such a routine “day-by-day” record as duties, may include job title and job description. (In this would qualify under CPLR 4518.20 vein, Wal-Mart’s designation of employees as “associ- ates” should perhaps be rethought.) The “Speaking Agent” Rule Of more than passing interest to the Bar, a lawyer’s New York clings to the so-called “speaking agent” statements on behalf of his or her client can be admissi- rule, under which any admission made by an employee ble as admissions against the client.25 This is because is inadmissible against the employer unless it can be the lawyer is clothed with apparent authority to speak proved that the employee had some kind of authority to in the client’s cause; indeed, it is well settled that a make the statement. lawyer’s statements made in settlement negotiations are The key case is Loschiavo v. Port Authority of New binding on the client even if no express authority had York.21 Plaintiff tripped and fell over a loose carpet in the been given the lawyer to settle for a certain amount.26 “jetway” extending from defendant’s airplane to the ter- Finally, a partner’s admission can be used against the minal. Defendant’s employee stated that others had partnership.27 And, of course, even though the attempt tripped and fallen in the same place, but the statement could not be used by plaintiff because the employee had no authority to make such statements. The Court of Ap- peals noted that the rule has been widely criticized, but referred any modification to the Legislature. Fast forward to 2001 and Tyrrell v. Wal-Mart Stores, Inc.,22 another Court of Appeals decision. Here, plaintiff slipped and fell on a slick substance on the floor of defendant’s store. An unidentified employee came along and, according to defendant’s husband’s testimony, said, “I told somebody to clean this mess up.” Even though the declarant may have had authority to super- vise clean-ups, there was no evidence that she was au- thorized to make admissions; the Court of Appeals, agreeing with the Appellate Division,23 again upheld the oft-criticized rule. The New York approach certainly appears to be un- realistic, and even unjust, when compared to the more

Journal | May 2003 31 fell short in Tyrrell, plaintiff can try to get the employee’s 17. In re R. Children, 264 A.D.2d 423, 694 N.Y.S.2d 126 statement in as a spontaneous statement. (2d Dep’t 1999). 18. In re Leon R.R., 48 N.Y.2d 117, 421 N.Y.S.2d 863 (1979). 1. 35 N.Y.2d 453, 363 N.Y.S.2d 923 (1974). 19. Puznowski v. Spirax Sarco, Inc., 275 A.D.2d 506, 712 2. It should be noted that Rule 703 was amended effective N.Y.S.2d 216 (3d Dep’t 2000). December 1, 2000 so that the data relied on need not be otherwise admissible in evidence. 20. Flaherty v. Am. Turners N.Y., Inc., 291 A.D.2d 256, 738 N.Y.S.2d 29 (1st Dep’t 2002). 3. 292 A.D.2d 84, 739 N.Y.S.2d 421 (2d Dep’t 2002). 4. 237 A.D.2d 271, 654 N.Y.S.2d 395 (2d Dep’t 1997). 21. 58 N.Y.2d 1040, 462 N.Y.S.2d 440 (1983). 5. 278 A.D.2d 487, 718 N.Y.S.2d 78 (2d Dep’t 2000). 22. 97 N.Y.2d 650, 737 N.Y.S.2d 43 (2001). 6. 63 N.Y.2d 723, 480 N.Y.S.2d 195 (1984). 23. It should be noted that the Court of Appeals reversed the 7. 92 A.D.2d 983, 461 N.Y.S.2d 497 (3d Dep’t 1983). Appellate Division’s finding that there was another basis for admission for the statement, as part of the res gestae. It 8. Schozer v. William Penn Life Ins. Co., 84 N.Y.2d 639, 620 held that there was no evidence that declarant made the N.Y.S.2d 797 (1994). statement while under the stress of excitement, or that 9. 271 A.D.2d 819, 706 N.Y.S.2d 261 (3d Dep’t 2000). there was no opportunity for deliberation. 10. 270 A.D.2d 384, 704 N.Y.S.2d 891 (2d Dep’t 2000). 24. 19 N.Y.2d 203, 278 N.Y.S.2d 826 (1967). 11. 234 A.D.2d 411, 651 N.Y.S.2d 119 (2d Dep’t 1996). 25. In re Liquidation of Union Indem. Ins. Co., 89 N.Y.2d 94, 651 12. 244 A.D.2d 877, 665 N.Y.S.2d 137 (4th Dep’t 1997). N.Y.S.2d 383 (1996). 13. See Johnson v. Lutz, 253 N.Y. 124, 170 N.E. 517 (1930). 26. Hallock v. State of New York, 64 N.Y.2d 224, 231–32, 485 14. People v. Cratsley, 86 N.Y.2d 81, 629 N.Y.S.2d 992 (1995). N.Y.S.2d 510 (1984). 15. People v. McKissick, 281 A.D.2d 212, 721 N.Y.S.2d 646 27. See McCormick on Evidence 156, § 259 (5th ed.). (1st Dep’t 2001). 16. Trotti v. Estate of Buchanan, 272 A.D.2d 660, 706 N.Y.S.2d 534 (3d Dep’t 2000). moving? let us know.

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32 Journal | May 2003 Divorce Case Settlements Require Detailed Understanding Of Pension Plan Options

BY REUBEN DAVID

xperience with the Equitable Distribution rules ap- In public pension plans, the divorced husband and plicable to divorce settlements has shown that wife share the monthly retirement payments. No sepa- Etheir preparation requires an understanding of the rate interests are awarded to the parties in the divorce differences between private and public pension plans, action. The method of such division of property has not together with careful review of the actuarial principles been prescribed by legislation in New York. However, a 3 and assumptions used to estimate the value of pension 1984 Court of Appeals decision enunciated a method to benefits. implement the division of marital property resulting Thus an attorney preparing a Domestic Relations from pension benefits between spouses. It is an exception to the anti-assignment clause, which cannot be ex- Order in a divorce case must consider all possible and panded, except by valid legislation or stare decisis. potential benefits. Often overlooked is the issue of the death of the participant before the death of the divorced In the 1984 case, the present value of the participant’s spouse, an event that can have a significant impact on interest was valued at $28,204.81. The spouse was the benefits available for the divorced spouse. awarded $14,204.40. The participant had the right to pay outright to the spouse what she was awarded in equi- When marital property is being divided between the table distribution. Because the participant had no prop- two spouses in a divorce action,1 pension benefits ac- erty of substance to be paid to the spouse, in order to quired by either party are deemed marital property only satisfy her equitable portion, he was given the option to to the extent the benefits were acquired during coverture pay the spouse her share at any time before retirement, – the period in the marriage when the participant was a with interest. Should the participant fail to pay the sum member of the pension plan and accruing pension credit due by the date of retirement, half of the monthly retire- up to the date when the divorce action was commenced. ment allowance, payable to the participant, multiplied Equitable distribution, in most cases, results in a dis- by the coverture period, then divided by the entire pe- tributive award. In rare cases, the member of the pen- riod of service, would be paid to the spouse periodically. sion plan has sufficient assets to pay to the spouse his or This latter alternative is referred to as the distributive her share of the marital property. In almost all cases, award. The issue of death benefits was discussed, but no when the pension rights mature and the monthly retire- stare decisis ruling was made. Death benefits may be sub- ment payments become due, the pensioner pays stantial, and as such provisions for them should be through the pension plan a portion of each periodic pay- made, or consideration should be taken, as to its present ment due under the mandate of a court order. value in equitable distribution. Pension benefits yield monthly retirement allowance Death Benefit Options payments, and may also provide a death benefit. The pensioner may, however, select maximum retirement al- In public pension plans, a former spouse is not lowance, without optional modification, which results treated as a “surviving spouse” to be entitled to death in no survivor benefit and a higher monthly retirement allowance. REUBEN DAVID is a practicing attorney Unlike private pension plans, which are subject to the in New York City. A graduate of New Employee Retirement Income Security Act (ERISA),2 York University, he received his J.D. public pension plans do not allow for the pension to be from New York Law School. divided between the parties by creating two separate accounts or separate interests. The division of marital property in public pension plans, which are not subject to 26 U.S.C. § 414(p), is not enforced until the actual retirement and the date when payments become due.

Journal | May 2003 33 benefits. The consent of the spouse of the participant is When a retiring participant chooses to receive the not required when the participant designates a benefi- maximum retirement allowance, which means that ciary other than the spouse. To be a beneficiary of the there will be no survivor benefit, there is no death ben- death benefit upon the death of the participant, the par- efit. Both the participant and the ex-spouse receive a ticipant must file the appropriate form designating the higher monthly retirement allowance while the partici- beneficiary for the specific death benefit when the par- pant and the spouse are alive. The payments to both ticipant selects an option upon retirement. parties cease upon the death of the participant. If the In a 1993 case,4 the pensioner, who was required by a spouse dies sooner, the portion of the payment to the court order to designate his divorced spouse as benefi- spouse reverts to the participant. ciary, subsequently filed a change of beneficiary naming Death benefits after retirement depend upon the op- a new spouse as the beneficiary. The court awarded the tion selected by the participant. The actuarial value of death benefit to the divorced spouse, despite the pen- such benefit has substantial financial importance. The sioner’s filing to the contrary. presumed time of death, This holding is res judicata which determines the dura- not stare decisis. A better understanding of how tion of payments, and in turn In providing for a death the total sum, is speculative benefit, a distinction must be the plans operate can provide and subject to actuarial as- made between death “in ser- the parties affected with the sumption. The duration of vice” (before retirement) and the life expectancy deter- death after retirement. There options available and yield mines the amount of the peri- are two separate benefits, results that are as fair as possible odic retirement allowance. subject to two separate rules, The longer the anticipated depending on whether the in the circumstances. life expectancy, the less the death occurs in service or amount of the periodic pay- after retirement. The death ments. Therefore, when the benefit after retirement may be a substantial amount option to receive payments for the duration of the bene- that should not be overlooked in determining the ficiary’s life has been chosen, the beneficiary cannot be amount of the equitable distribution or distributive changed after finality. award. The actuarial present value of the death benefit may When death occurs in service, the ex-spouse may be be reflected in the monthly retirement allowance by in- awarded part of the death benefit in the same ratio the creasing the amount of such monthly retirement al- coverture period bears to the entire period of service lowance payments, if the value of the death benefit is credited, as is done in the case of distributive award. not accounted for by making provisions for it. This Without such provision, the ex-spouse would lose the would depend on the circumstances of the parties and entire value of the share of equitable distribution that he their preference. Without this shifting in actuarial value, or she should be entitled to receive. the share of the ex-spouse would be less than what that The option selected at retirement has an impact on individual should be entitled to receive. the amount of monthly retirement allowance paid to the pensioner and the divorced spouse of the pensioner. More Complex Issues Two types of death benefits should be distinguished in The more complex issues involve fitting the actuarial death after retirement – a definite sum to be paid to the value of the portion to be paid to the former spouse beneficiary or a monthly retirement allowance for the from the death benefit, as stipulated between the par- life of the beneficiary. Where the death benefit is a defi- ties, into one of the options available. These options are nite sum, there can be more than one beneficiary. Death controlled by the plan provisions, which are statutory benefits paid as periodic or monthly retirement al- and may not be varied to suit the parties’ agreement. lowances must be for one beneficiary only. The amounts Some options provide for monthly payments to the of such payments depend upon the life expectancy of spouse in amounts equal to the entire sum the pensioner the beneficiary. The age of both parties, as reflected in was entitled to or half such amount. Other plans pro- the life expectancy, is a factor in determining the vide for the payment of percentages starting with the amount of the monthly retirement payments during a 10% and increasing by 10%. Other plans provide for lifetime, based upon the actuarial present value of the death benefit for 25%, 50% or 75% of the payments the pension. The beneficiary may not be changed, unlike in member was entitled to receive. Such payments are to the case of a lump sum benefit, where the beneficiary be made for the life of the beneficiary. These options, may be changed as often as the pensioner desires. once selected and finalized, cannot be changed because

34 Journal | May 2003 the amount of the periodic payments depends on the Under a 1993 amendment to the Social Security Law,5 life expectancy of the beneficiary. Therefore, the provi- when a member or retiree of the State of New York Re- sions of the plan should be ascertained so that the stip- tirement System has been required by court order to ulation and the court order are in conformity. If, for intake a certain retirement option or designate a benefi- stance, the present value of the pension is determined, ciary but has failed to do so, the state comptroller, pur- and the spouse is awarded 12% of the death benefit as suant to a subsequent court order, may make the change the share of death benefit, and there can be no such pro- or designation under the authority of a subsequent vision in the plan, the 12% may either be increased and court order. The subsequent order would be in lieu of a at the same time the monthly retirement allowance be contempt proceeding. decreased, or vice versa. A perfect equitable distribution, resulting in a dis- If the pensioner selects the option that pays the bal- tributive award, cannot be attained because the actual ance of the reserve as a definite sum to become ascer- duration of life does not always match actuarial life ex- tained in the future, the pensioner may designate the di- pectancy. A better understanding of how the plans op- vorced spouse for a portion determined by the same erate, however, can provide the parties affected with the formula as the monthly retirement allowance paid to the options available and yield results that are as fair as divorced spouse during the lifetime of the pensioner. possible in the circumstances. The more appropriate method to guarantee the death benefit to the ex-spouse is to direct the pensioner in the 1. As provided for in N.Y. Domestic Relations Law § 236 pt. B. court order to designate the divorced spouse as benefi- 2. 29 U.S.C. § 1001 et seq. ciary of part of the death benefit within the framework 3. Majauskas v. Majauskas, 61 N.Y.2d 481, 474 N.Y.S.2d 699 of the statutory provisions which govern the plan. If the (1984). pensioner refuses to so designate the divorced spouse, 4. Kaplan v. Kaplan, 82 N.Y.2d 300, 604 N.Y.S.2d 519 (1993). the pensioner would be in contempt of court. 5. 1999 N.Y. Laws ch. 300, § 1, codified at N.Y. Retirement and Social Security Law § 803-a.

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Journal | May 2003 35 Twenty Years of Decisions Have Refined “Serious Injury” Threshold In No-Fault Accident Cases

BY ANTHONY J. CENTONE

ince the inception of New York’s No-Fault Insur- tained a serious injury as defined in Insurance Law 8 ance Law in 1973,1 the New York Court of Appeals § 5102(d). Should the court find, on defendant’s motion Shas ruled on and interpreted the “serious injury” for summary judgment (or motion for a directed verdict, threshold provision in 10 major cases, most recently in a as in the case of Licari), that the plaintiff did not demon- 2002 decision that combined three separate appeals.2 strate that he or she sustained a serious injury, the case Starting with Licari v. Elliott3 in 1982, the Court has at- need go no further and the plaintiff’s complaint seeking tempted to clarify various aspects of Insurance Law “non-economic” damages must be dismissed as a mat- § 5102(d),4 the statute that defines what constitutes a ter of law. “serious injury” and what entitles certain individuals Finally, the Court noted that the “subjective quality” injured in automobile accidents to sue for and recover of certain types of pain, such as headaches and dizzi- ness, cannot form the basis of a serious injury, as a mat- “non-economic” damages stemming from those in- 9 juries. ter of law. In Licari, the Court held that the plaintiff, a Most recently, the Court of Appeals has defined the taxi driver, who (1) missed only 24 days from work after nature and extent of the “qualitative” objective medical the automobile accident; (2) suffered essentially cervical proof a plaintiff must present to establish a triable issue and lumbosacral sprain and strain along with occa- of fact regarding what constitutes a serious injury. Taken sional headaches, as a result of the accident; and (3) tes- together, these Court of Appeals cases provide guide- tified as to very few activities he was unable to do as of time of trial, did not, as a matter of law, sustain a serious posts for both plaintiff’s and defense counsel to assess 10 their case and prepare their strategy for potential injury under Insurance Law § 5102(d). “threshold” issues. Physician’s Affidavit Cannot Be “Conclusory” Injury Must Be More Than Soon after this first decision, the term “Licari motion” “Minor, Mild or Slight” was coined and defendants frequently made motions for summary judgment seeking dismissal of motor ve- In the seminal threshold case Licari,5 the Court deter- hicle lawsuits based on the plaintiff’s lack of any serious mined that a major goal of the Legislature in adopting injury. Three years after Licari, the Court of Appeals dis- Insurance Law § 5102(d) was to keep “minor” injury cussed the type of proof necessary for a plaintiff to es- cases out of the courts: tablish a serious injury, when opposing a defendant’s We begin our analysis of these two categories of serious summary judgment motion of this kind. injury by recognizing that one of the obvious goals of In Lopez v. Senatore,11 the Court dealt for the first time the Legislature’s scheme of no-fault automobile repara- with the issue of specific medical proof submitted by the tions is to keep minor personal injury cases out of court.6 In dealing with the category of a “significant limita- ANTHONY J. CENTONE practices in the tion of use of a body function or system,” Judge Jason, area of automobile insurance defense writing on behalf of a unanimous court, noted: “We be- as a trial and appellate attorney. He is also an adjunct professor of law at lieve that a minor, mild or slight limitation of use should Pace University School of Law, where be classified as insignificant within the meaning of the 7 he teaches civil practice. A graduate of statute.” Villanova University, he received his Most significantly, however, the Court definitively J.D. from Pace University School of established that it would be up to the trial court, in the Law. first instance, to determine whether the plaintiff has sus-

36 Journal | May 2003 plaintiff in opposition to a defendant’s threshold motion demonstrate “objective” signs of injury, as opposed to for summary judgment. When analyzing the plaintiff’s the plaintiff’s “subjective” complaints of pain, in order physician’s affidavit, the Court noted that the “mere to raise an issue of fact sufficient to defeat the defen- repetition of the word ‘permanent’ in the affidavit of a dant’s motion for summary judgment. [plaintiff’s] treating physician is insufficient to establish ‘serious injury.’”12 Plaintiff Must Present “Sworn” Medical Proof In Grasso v. Angerami,21 the Court further addressed The Court further held that summary judgment plaintiff’s medical proof by stating that the plaintiff’s should be granted in favor of a defendant “where the physician must provide his plaintiff’s evidence is limited medical opinion by way of to conclusory assertions tai- “sworn testimony” – i.e., an lored to meet statutory re- Plaintiffs opposing a threshold affirmation or affidavit. quirements.”13 The Court motion for summary judgment then held that, when a plain- Before Grasso, there had tiff’s physician (1) sets forth must provide either a doctor’s been a split in the appellate in his affidavit the type of in- affirmation or affidavit if they divisions. The Second De- juries suffered by the plaintiff partment had accepted the and the plaintiff’s course of hope to defeat the motion. plaintiff’s unsworn medical treatment, (2) identifies the reports and records as suffi- limitation of motion in the cient proof to defeat a defen- 22 plaintiff’s neck (whereby he could only turn his head 10 dant’s motion for summary judgment. The First De- degrees to the right or left) and (3) expresses the opinion partment, however, had required that the medical proof 23 that there was significant limitation of a body function be in “admissible form.” The Court of Appeals par- or system (all supported by exhibits such as office tially resolved this issue by stating: records), such evidence would be sufficient to defeat the In opposition to defendant’s motion for summary judg- 14 defendant’s summary judgment motion. ment pursuant to Insurance Law § 5102(d), plaintiff ten- Lopez has thus come to stand as the guidepost for the dered proof of “serious injury” in inadmissible form, type of proof a plaintiff needs to defeat a defendant’s namely an unsworn doctor’s report. Inasmuch as plain- threshold motion. tiff did not offer any excuse for his failure to provide the medical report in proper form, we need not consider Subjective Quality of Pain whether proof of serious injury in inadmissible form is Alone Is Insufficient sufficient to defeat a motion for summary judgment 15 pursuant to Insurance Law § 5102(d), if an acceptable In Scheer v. Koubek, the Court established the excuse for the deficiency is offered.24 premise that “pain,” in and of itself, may not form the basis of serious injury under Insurance Law § 5102(d), In doing so, the Court seems to have followed a long rejecting a line of Third Department cases to the con- line of cases, most prominently Zuckerman v. City of New 25 trary.16 York, which held that a party opposing a motion for The plaintiff in Scheer had suffered only “soft tissue summary judgment must present proof in admissible injury,” which her own physician had described as form or offer an acceptable excuse for failing to do so. It “mild.”17 According to the appellate court decision, the is now generally accepted that plaintiffs opposing a defendant’s physician in Scheer had testified that his one threshold motion for summary judgment must provide and only examination of the plaintiff revealed nothing either a doctor’s affirmation or affidavit if they hope to but subjective complaints of pain; the plaintiff argued defeat the motion; unsworn medical reports and records that this was sufficient to form the basis for establishing will not suffice. a serious injury.18 Both the trial court and Appellate Di- Nonetheless, a literal reading of Grasso leaves open vision agreed.19 The Court of Appeals reversed, how- the door that, if the plaintiff can offer a reasonable ex- ever, citing Licari, and stated: cuse for his failure to provide a doctor’s affirmation or affidavit, e.g., death of the plaintiff’s only treating physi- The subjective quality of plaintiff’s transitory pain does cian, a court could accept from the plaintiff “inadmissi- not fall within the objective verbal definition of serious ble” or “unsworn” medical proof that might be suffi- injury as contemplated by the No-Fault Insurance Law.20 cient to defeat a threshold motion. From this point on, New York law was clear in hold- Curtailment of Activities ing that proof of a serious injury would have to come Must Be to a “Great Extent” from the plaintiff’s physician, and not from the plaintiff A few months later, Gaddy v. Eyler26 provided addi- personally; and this medical proof would have to tional standards concerning the plaintiff’s proof in op-

Journal | May 2003 37 posing a threshold motion for summary judgment. The defendants claimed that the questions the plain- There, the Court was asked to determine whether the tiff’s counsel posed to the two physicians were im- plaintiff, who had sustained neck and back injuries, fell proper because they were the same questions posed to under one of three categories set forth in Insurance Law the jury in the interrogatories contained in the verdict § 5102(d).27 sheet. The Court held that whether an injury is “perma- The Court initially concluded that, because the plain- nent” or a limitation is “significant” or “consequential” tiff had only a “minor limitation of movement in her is a medical question beyond the knowledge of the av- neck and back,” she had failed to demonstrate a “per- erage juror and thus requires the benefit of an expert’s manent consequential limitation or use of a body organ specialized knowledge.34 Therefore, the opinion of the or member” or a “significant limitation of use of a body two physicians, even though framed in the precise function or system.”28 With regard to the “90-out-of-180- statutory language, which also was the language in the day” provision, the Court noted that the plaintiff had interrogatories submitted to the jury, was proper, but missed only two days of work and then returned to the jury must still determine whether the objective med- most of her daily routine (as a senior court stenogra- ical evidence supported the expert’s conclusion. pher), and that she submitted no evidence to support Furthermore, the Court noted that the expert’s opin- her contention that her household and recreational ac- ion must be supported by a “factual foundation,” which tivities had been diminished as a result of her injuries.29 gives the defendant the ability to cross-examine the ex- 35 Because there was no proof that she had been “‘cur- pert and call into question his opinions. The defen- tailed from performing [her] usual activities to a great dants could also call their own medical expert witnesses extent rather than some slight curtailment’” (quoting Li- to rebut the plaintiff’s experts, and the jury would still cari), the Court held that the plaintiff failed to meet the have to weigh the testimony of all of these witnesses in 90/180 day threshold requirement as well.30 In doing so, determining whether the plaintiff sustained a serious in- 36 the Court stressed once again that minor injuries, with jury. insignificant effect on a plaintiff’s normal activities, Based on this ruling, most plaintiffs’ counsel in auto- would not qualify as a serious injury.31 mobile accident cases will now ask their medical experts the precise questions posed of the plaintiff’s experts in Expert Opinion Must Be Supported Dufel. The Court in Dufel, however, did caution that By Factual Foundation there may be instances where particular questions Three years later, the Court of Appeals dealt once posed in “statutory form are unduly prejudicial” and again with the no-fault statute. In Dufel v. Green,32 the should, therefore, not be permitted, although the Court issue was what specific questions a plaintiff’s expert did not elaborate on this point.37 could be asked while testifying at trial concerning the Permanent “Loss of Use” Must Be Total plaintiff’s medical condition. The defendant objected to 38 certain questions asked of the plaintiff’s experts by her In 2001, Oberly v. Bangs Ambulance Inc. presented the counsel on direct examination. The Court noted: issue of whether a plaintiff who maintained that he sustained a “permanent loss of use of a body organ, mem- To establish that plaintiff had sustained a serious injury, ber, function or system” had to prove a “total loss” as plaintiff’s two physicians were asked, in words track- opposed to only a “partial loss” of use. ing the statutory language, whether plaintiff sustained “a permanent consequential limitation” and “a signifi- The plaintiff, a dentist, alleged a “serious injury” to cant limitation” of the use of a body member, function, his right arm as a result of an automobile accident. He organ or system. Over defendant’s objection both an- complained of “pain and cramping” in the arm and al- swered that she had. The doctors were also asked in leged that the pain limited “his ability to practice as a nonstatutory language whether plaintiff had sustained dentist.”39 Apparently, the injury did not prevent him a permanent injury and both answered that she had. from practicing dentistry, but in some way limited his At the conclusion of the trial, the court asked the jury to ability to do his job fully (although the decision does not determine whether plaintiff had sustained (1) perma- specify to what extent). nent loss of a body organ, member, function or system; The defendant moved for summary judgment based (2) permanent consequential limitation of use of a body on lack of a serious injury and the plaintiff decided to function or system; (3) significant limitation of use of a abandon all the serious injury provisions, except for his body function or system; or (4) a medically determined alleged “permanent loss of use” – i.e., the injury to his injury preventing normal activities for 90 out of the 180 40 days following the accident. The jury returned a verdict right arm. The plaintiff argued that the permanent loss finding in plaintiff’s favor on questions 2, 3 and 4 and need not be significant or total but that even a partial awarded her damages.33 loss would qualify.41

38 Journal | May 2003 The Court, interpreting legislative intent, first noted cal or lumbosacral spine. This would constitute a “quan- that if the Legislature had meant “permanent loss” to in- titative” designation of the plaintiff’s physical limita- clude “partial” loss of use, it would have qualified the tion. phrase “permanent loss” accordingly.42 Second, the The Court then went on to hold, however, that an ex- Court said that the permanent loss standard was con- pert’s qualitative assessment of a plaintiff’s physical tained in the original 1973 limitations, when supported version of the statute, and by objective evidence, is suf- had survived the 1977 It is apparent, however, from a ficient to create an issue of amendment to the statute, close reading of Oberly that this fact regarding serious injury which added the categories as well. The qualitative as- of “permanent consequential requirement of total “permanent sessment involves compar- limitation of use of a body loss of use” pertains only to that ing the plaintiff’s limitations organ or member” and “sig- to his “normal function, pur- nificant limitation of use of a category of injury and does not pose and use of the affected body function or system.”43 body organ, member, func- The Court reasoned that apply to the other categories. tion or system.”48 When this these two categories relate to qualitative assessment is partial losses and, had the Legislature considered “per- supported by objective evidence, a defendant can test manent loss of use” to already include partial losses, the findings both through cross-examination as well as there would have been no reason to add these categories by way of his own expert.49 If, however, the qualitative to the statute.44 assessment is unsupported by objective evidence, it Many in the insurance industry believed that Oberly could be “wholly speculative” and defeat the purpose of would result in a drastic increase in dismissal of thresh- the no-fault law, which is to eliminate “insignificant in- old cases. It is apparent, however, from a close reading juries.”50 Therefore, the court must determine whether of Oberly that this requirement of total “permanent loss this qualitative assessment meets certain criteria. of use” pertains only to that category of injury and does Toure Case In Toure, the plaintiff’s physician, in his not apply to the other categories such as “permanent affirmation opposing the defendant’s threshold motion, consequential limitation of use of a body organ or mem- did not ascribe a specific percentage to the loss of range ber” or “significant limitation of use of a body function of motion in the plaintiff’s spine. He did, however, set or system,” both of which, according to the Court, re- forth the “qualitative nature” of the plaintiff’s limita- quire only a partial, not a total, limitation. tions. As such, the impact of Oberly apparently is on only For instance, while Dr. Waltz did not indicate that the one of the (essentially) four categories of injury, and a plaintiff had a 50% or 30-degree loss of range of motion plaintiff can still rely on a partial, rather than total, “per- in flexion in his lumbosacral spine, he did state that the manent consequential limitation of use” or “significant plaintiff’s CT scan and MRI showed herniated and limitation of use.” bulging discs and that plaintiff had both muscle spasms and a “‘decreased range of motion’” in his lumbosacral Expert’s Opinion May Be Either spine.51 Furthermore, the physician related his findings “Qualitative” or “Quantitative” to the “plaintiff’s complaints of difficulty in sitting, The most recent Court of Appeals threshold decision standing and walking for extended periods of time and 45 is Toure v. Avis Rent-A-Car Systems, in which a trio of plaintiff’s inability to lift heavy objects at work.”52 The cases (Toure, Manzano v. O’Neil and Nitti v. Cierrico) were plaintiff’s physician concluded that “these limitations decided jointly in one opinion. As Judge Graffeo noted are a natural and expected medical consequence of his in the opening sentence of her opinion: “These three [plaintiff’s] injuries.”53 The Court then noted: cases examine the nature and extent of qualitative, objective medical proof necessary for a plaintiff to meet the We cannot say that the alleged limitations of plaintiff’s 46 back and neck are so “minor, mild or slight” as to be ‘serious injury’ threshold under the No-Fault Law.” considered insignificant within the meaning of Insur- Initially, the Court noted that a plaintiff’s expert can ance Law § 5102(d). As our case law further requires, establish a plaintiff’s physical limitation by giving a Dr. Waltz’s opinion is supported by objective medical “numeric percentage” of the plaintiff’s loss of range of evidence, including MRI and CT scan tests and reports, paired with his observations of muscle spasms during motion to substantiate his or her claim.47 This would be, his physical examination of plaintiff. Considered in the for example, where a plaintiff’s physician either testifies light most favorable to plaintiff, this evidence was suf- or states in his affirmation or affidavit that the plaintiff ficient to defeat defendant’s motion for summary judg- has a “20%” or “30-degree” loss of rotation in his cervi- ment.54

Journal | May 2003 39 In doing so, the Court has apparently overruled prior anomaly,’” which would prevent the plaintiff from exer- appellate division case law, which consistently held that cising and engaging in certain activities.59 Dr. Patriarco the plaintiff’s physician must “specifically quantify” the also testified that he detected a muscle spasm in the alleged restriction of motion in plaintiff’s cervical or plaintiff’s right cervical spine that radiated into her lumbosacral spine by either “percentages” or “de- shoulders and he also found restriction of motion in her grees.”55 According to Toure, the physician can now de- neck and back.60 scribe the limitation in terms of the daily routine activi- Based on this testimony, the jury found that the plain- ties (both work related and non-work related) that were tiff sustained a serious injury under the 90/180 day cat- affected by the injuries. There must, however, be suffi- egory but not under the “significant limitation” cate- cient “objective medical proof,” e.g., MRI or CT scan gory. The Court disagreed: tests or reports, along with the doctor’s own clinical Although medical testimony concerning observations findings during physical examination of the plaintiff, to of a spasm can constitute objective evidence in support support the physician’s opinion. In the absence of the of a serious injury, the spasm must be objectively ascer- same, the qualitative assessment will be insufficient to tained. This requirement was not satisfied by the testi- defeat the defendant’s motion. mony of plaintiff’s expert that he detected a spasm, Manzano Case Manzano involved a trial in which the where he did not, for example, indicate what test, if any, defendant moved to set aside the jury’s verdict of he performed to induce the spasm. Furthermore, Dr. Patriarco testified on cross-examination that the tests he $70,000 in damages, based on the plaintiff’s failure to es- administered to reach his conclusion regarding plain- tablish a serious injury as a matter of law. The Court ini- tiff’s limitation of motion were subjective in nature as tially noted: they relied on plaintiff’s complaints of pain. Nor did the MRI report he mentioned constitute objective proof. In this case, plaintiff presented the testimony of her Toure and Manzano recognize that an expert’s conclu- treating physician, Dr. Cambareri, who opined that sion based on a review of MRI films and reports can plaintiff suffered two herniated cervical discs as a result provide objective evidence of a serious injury. In this of the automobile accident. His conclusion was sup- case, however, the witness merely mentioned an MRI ported by objective evidence introduced at trial, report without testifying as to the findings in the report. namely, the MRI films that he interpreted. Although Moreover, the MRI report was not introduced into evi- this medical expert did not assign a quantitative per- dence, thus foreclosing cross-examination. Nor did Dr. centage to the loss of range of motion in plaintiff’s neck Patriarco testify that the underlying MRI film sup- or back, he described the qualitative nature of plaintiff’s ported his diagnosis of an “L4-5 intervertebral disk dis- limitations based on the normal function, purpose and order.” Given the inadequacy of the objective medical use of her body parts. In particular, Dr. Cambareri cor- proof supporting the opinion of plaintiff’s expert, de- related plaintiff’s herniated discs with her inability to fendants’ motion to set aside the verdict should have perform certain normal, daily tasks. These limitations been granted.61 are not so insignificant as to bar plaintiff’s recovery 56 under the No-Fault Law. In Nitti, there was an absence of “objective proof” to Again, the Court relied upon the qualitative nature of support Dr. Patriarco’s opinion that the plaintiff suf- the plaintiff’s injury and her inability to perform certain fered from an “L4-5 intervertebral disk disorder with as- normal daily tasks, such as heavy lifting, shoveling the sociated neuritis.” Based on the same, the plaintiff failed driveway, cleaning the house and picking up the chil- to prove the existence of a serious injury. Perhaps the dren.57 The plaintiff’s physician was again able to con- most significant statement in this opinion, however, is nect the “herniated discs,” as demonstrated on MRI the following: “Toure and Manzano recognize that an ex- films of the plaintiff’s spine which the physician had pert’s conclusion based on a review of MRI films and re- personally reviewed, to plaintiff’s inability to carry out ports can provide objective evidence of a serious in- 62 these tasks. Based on the same, the jury’s finding of “se- jury.” Is the Court now maintaining that a plaintiff’s rious injury” was upheld by the Court. treating physician can rely upon “unsworn” MRI re- Nitti Case The last opinion in this trio of decisions, ports as a basis for his opinion that the plaintiff has sus- Nitti, involved a trial in which the plaintiff presented the tained a serious injury under Insurance Law § 5102(d)? testimony of a chiropractor who apparently had exam- If so, is this consistent with the Court’s prior holding ined the plaintiff only twice before trial. These exams in Grasso v. Angerami,63 that an unsworn doctor’s report were six months apart. The chiropractor, Dr. Patriarco, is inadmissible and thus insufficient to defeat a defen- also reviewed an MRI report of the plaintiff’s spine that dant’s motion for summary judgment based on the no- was not introduced into evidence at trial.58 Nonetheless, fault “threshold”? Or does it simply mean that, in the Dr. Patriarco testified that the plaintiff “‘sustained an plaintiff’s physician’s sworn affirmation or affidavit, he L4-5 intervertebral disk disorder with associated neuri- may rely, in part, on an unsworn MRI report, provided tis, which was further complicated by a congenital it is the type of report a physician would reasonably rely

40 Journal | May 2003 upon in coming to his diagnosis? This seems more 22. Palmer v. Amaker, 141 A.D.2d 622, 529 N.Y.S.2d 536 (2d likely, although it is probable that we may need to wait Dep’t 1988). and see whether the Court of Appeals provides further 23. McLoyrd v. Pennypacker, 178 A.D.2d 227, 577 N.Y.S.2d 272 clarification on this issue in future decisions. (1st Dep’t 1991). What seems clear from Toure is that courts no longer 24. Grasso, 79 N.Y.2d at 814–15. need to find that the plaintiff’s medical expert quanti- 25. 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595 (1980). fied the plaintiff’s alleged limitation of motion, in terms 26. 79 N.Y.2d 955, 582 N.Y.S.2d 990 (1992). of percentages or degrees, but the physician can also 27. Id. at 957. qualify the restriction in terms of the plaintiff’s daily activities, provided the plaintiff supplies an “objective” 28. Id. medical basis for the restrictions. This will no doubt dra- 29. Id. at 958. matically affect the way both plaintiff’s and defense 30. Id. counsel approach “threshold” motions in the future, as 31. Id. well as the way courts decide these motions. 32. 84 N.Y.2d 795, 622 N.Y.S.2d 900 (1995).

1. Now known as the “Comprehensive Motor Vehicle Insur- 33. Id. at 797. ance Act,” as amended effective September 1, 1984. 34. Id. at 798. 2. Toure v. Avis Rent-A-Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 35. Id. 865 (2002). 36. Id. 3. 57 N.Y.2d 230, 455 N.Y.S.2d 570 (1982). 37. Id. at 799. 4. Insurance Law § 5102(d) provides: 38. 96 N.Y.2d 295, 727 N.Y.S.2d 378 (2001). “Serious injury” means a personal injury which results in death; dismemberment; significant disfig- 39. Id. at 297. urement; a fracture; loss of a fetus; permanent loss 40. Id. of use of a body organ, member, function or system; 41. Id. permanent consequential limitation of use of a body organ or member; significant limitation of use of a 42. Id. at 298–99. body function or system; or a medically determined 43. Id. at 299. injury or impairment of a non-permanent nature which prevents the injured person from performing 44. Id. substantially all of the material acts which consti- 45. 98 N.Y.2d 345, 746 N.Y.S.2d 865 (2002). tute such person’s usual and customary daily activities for not less than ninety days during the one 46. Id. at 350. hundred eighty days immediately following the oc- 47. Id. currence of the injury or impairment. 48. Id. 5. 57 N.Y.2d 230. 49. Id. at 351. 6. Id. at 236. 50. Id. 7. Id. 8. Id. at 238. 51. Id. at 352. 9. Id. at 238–39. 52. Id. 10. Id. at 238. 53. Id. 11. 65 N.Y.2d 1017, 494 N.Y.S.2d 101 (1985). 54. Id. at 353 (citations omitted). 12. Id. at 1019. 55. Forte v. Vaccaro, 175 A.D.2d 153, 572 N.Y.S.2d 241 (2d 13. Id. Dep’t 1991); Philpotts v. Petrovic, 160 A.D.2d 856, 554 14. Id. at 1020. N.Y.S.2d 289 (2d Dep’t 1990). 15. 70 N.Y.2d 678, 518 N.Y.S.2d 309 (1987). 56. 98 N.Y.2d at 355 (citation omitted). 16. Scheer v. Koubek, 126 A.D.2d 922, 511 N.Y.S.2d 435 (3d 57. Id. at 354. Dep’t 1987); Butchino v. Bush, 109 A.D.2d 1001, 486 N.Y.S.2d 478 (3d Dep’t 1985). 58. Id. at 356. 17. 70 N.Y.2d at 679. 59. Id. 18. 126 A.D.2d at 923–24. 60. Id. 19. Id. at 924. 61. Id. at 357–58. 20. 70 N.Y.2d at 679. 62. Id. at 358 (emphasis added). 21. 79 N.Y.2d 813, 580 N.Y.S.2d 178 (1991). 63. 79 N.Y.2d 813, 580 N.Y.S.2d 178 (1991).

Journal | May 2003 41 PART 36 RULES AND APPLICATION ______New Rules Published For Fiduciary Appointments

he Office of Court Administration has published new rules that govern the appointments of guardians under Article 81 of the Mental Hygiene Law, related appointments in the guardian- Tship process such as court evaluators and court-appointed attorneys for alleged incapacitated persons, guardians ad litem both in the context of Article 81 proceedings and in Surrogate’s Court matters, and receivers and referees. The rules are being codified as Part 36 in Title 22 of the New York Compilation of Codes, Rules and Regulations, which covers judiciary matters. To be eligible for appointments beginning June 1, attorneys must complete a new six-page application form, UCS-870, and file it with the Office of Court Administration. The new rules, together with the application forms, are initially being provided on the OCA Web site, http://fbem.courts.state.ny.us. The application form can be filled out on line, or printed out and submitted by mail. The new Part 36 Rules are reproduced on pages 45 and 46. Reproduced below are the instructions for filling out the application form, followed by reduced- size copies of the form pages to illustrate the scope of the questions being asked.

INSTRUCTIONS: APPLICATION FOR APPOINTMENT PURSUANT TO PART 36 OF THE RULES OF THE CHIEF JUDGE

42 Journal | May 2003 Journal | May 2003 43 NYSBABOOKS

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44 Journal | May 2003 Journal | May 2003 45 46 Journal | May 2003 The Cardozo Mystery POINT OF VIEW BY DANIEL J. KORNSTEIN

t is difficult getting to the essence plore a few of the crucial issues. It gets cussion of Cardozo’s decisions leaves of Benjamin Cardozo. For all his distracted by Cardozo’s glittering judi- too little room for the life, which often Ijudicial opinions, for all the ac- cial career. Once again a Cardozo seems to be squeezed in as an after- counts of his contemporaries, for all sleuth failed to find the secret. thought. In doing so, Kaufman’s book the much-acclaimed recent books Five years ago, Cardozo fans ex- fails to see important, unexplored links about Cardozo, we are still – 65 years pected to learn the answer. In 1998, between his work and his life. Lost in after his death – almost clueless Harvard law professor Andrew Kauf- the sea of legal facts and details are about the inner man. man published his long-awaited biog- some basic aspects of the man’s spirit Part of this void is due to the pri- raphy. Forty years in the making, and personality, the activating princi- vate nature of Cardozo himself, and to Kaufman’s Cardozo (Harvard Univer- ples influencing the man, which, if his singular devotion to work. Part is sity Press) was anticipated by scholars, properly understood, might explain due to the reluctance of biographers to lawyers and the reading public to be his legal performance. go beyond established fact. And part is the great biography of a great judge, due to Cardozo’s special, exalted place the first truly full-length effort to study The Cardozo mystery in our legal pantheon. As a result, one the life and work of Cardozo. has stymied the best of our great legal heroes remains to It met immediate critical acclaim. biographical detectives. this day shrouded in mystery. Posner called Cardozo “perhaps the The Cardozo mystery has stymied best biography of a major American Among the still-unanswered ques- the best biographical detectives. judge ever written.” Law professor G. tions is: Why did Cardozo never Strangely, until the 1990s, no serious Edward White, himself a biographer of marry, or, for that matter, never have analysis of Cardozo’s life and work as Oliver Wendell Holmes, regarded any romantic relationship in his life? It a whole was even attempted. But that Kaufman’s book as “in many respects is simply not enough to say that four of decade saw three book-length studies. a model judicial biography.” Others his five siblings never married, or to In 1990, the prolific and brilliant threw similar bouquets. point out that he cared almost all his federal appeals judge Richard Posner Despite its warm reception, how- life for his elder sister Nellie, who published a short book called Cardozo: ever, the Kaufman book was disap- raised him after their mother’s death A Study in Reputation (University of pointing to anyone hoping to find at when he was 9. Those interesting facts Chicago Press) in which he focused, last the real Cardozo. Kaufman’s biog- do not, without more, sufficiently ex- naturally enough, on Cardozo’s mem- raphy was, to borrow the language of plain such a basic feature of a human orable writing style. In trying to un- equal protection cases, simultaneously being’s personality. ravel what he referred to as the “mys- overinclusive and underinclusive; that Please don’t misunderstand me. I tery of Cardozo’s reputation,” Posner is, it at once said too much and too lit- do not propose a prurient look at Car- analyzed Cardozo’s attributes and tle. As a result, and this is the book’s dozo’s private life. I am merely saying skills rather than his interior life. Pos- most serious flaw, Kaufman – like his that it is impossible to understand Car- ner’s analysis was fine as far as it went, predecessors – misses the true essence, dozo without trying to know why he and did identify some traits enhancing the ultimate nature of Cardozo the was seemingly celibate all his life, and Cardozo’s reputation, but never ex- man and the judge. how, or if, that affected his attitudes to- plained why Cardozo had or devel- In short, for all its 731 fact-filled ward women, his relationships with oped those particular traits. pages, Cardozo is unilluminating. them and his judicial opinions dealing A second effort came in 1997 with Rather than foreclosing future biogra- with marriage, of which there are sev- The World of Benjamin Cardozo (Har- phies of Cardozo, Kaufman’s volume eral. Kaufman is unhelpful on this core vard University Press) by Richard unintentionally invites them to ex- mystery. Polenberg, a history professor at Cor- plore, if not definitively answer, the Equally unhelpful is Kaufman’s nell. Polenberg’s insightful book con- crucial biographical questions he fails failure to deal with the meaning and centrated more on Cardozo the man even to ask. reasons for Cardozo’s extraordinary than did Posner’s. But, nicely written Padding its length is too much de- decision never to attend religious ser- as it was, it still fell short of finding the tailed and elaborate discussion of Car- vices after his bar mitzvah. Cardozo grail. It starts, but only starts, to ex- dozo’s cases. Kaufman’s extended dis- came from a long line of orthodox

Journal | May 2003 47 Sephardic Jews who were observant, he changed (or modernized) the law life, which to this day remains largely prominent leaders of their synagogues. while trying not to appear to do so? hidden. In these circumstances, his refusal to Nor are these the only vital ques- Knowing what Cardozo liked to go to temple after the age of 13 was a tions about Cardozo that Kaufman read might well help solve another monumental act of quiet personal re- fails to ask, much less answer. Kauf- fundamental question about his life in bellion, but one never fully addressed man tells us that Cardozo was always the law: Why and how did Cardozo, of by Kaufman. an avid reader, and at one point lists all people, develop the unique literary What does this spiritual revolt several books and authors Cardozo style that so marks his writing and mean? What relevance did it have for read, but goes no further down that contributes so greatly to his long-last- the formation of Cardozo’s character? promising literary road. What a person ing reputation? All Cardozo commen- Why did he do it? Did Cardozo, who reads is an important clue to his or her tators, all law students, dwell on his always identified himself as a Jew and thinking and personality, the temper distinctive and memorable writing followed some Jewish traditions, for and disposition of his or her mind, par- style. Inverted sentences – “negligence some reason lose his religious faith at ticularly a person whose life was as there was none” – were but one of his an early age? Was he repelled by rit- uneventful and cloistered as Cardozo’s many literary trademarks. How did ual? Did any of this bear on his legal was. I, for one, would desperately like the Cardozo style evolve? philosophy? Was law, for Cardozo, a to know what were Cardozo’s favorite Kaufman’s fidelity to facts is vital, substitute for religion? Might his reli- books, who were his favorite authors, but facts are only the starting point in gious rebellion foreshadow the quiet and why. Answers to those questions biography. Facts are often incomplete, revolution he worked in law, in which would shed light on Cardozo’s inner so that the biographer must explain them, connect them, and even use them as the basis for creative but responsible interpretation to get to the Support The A charitable organization focusing on law-related concerns heart of the human life under scrutiny, New York Bar Name ______to reveal the subject’s impulses or ten- Address______dencies. It is almost as if Kaufman tries to camouflage lack of insight and un- Foundation ______derstanding with vast amounts of dif- Telephone______fuse and deadening detail. This is why Fax ______▲ his book is, in the final analysis, unen- easy ways Enclosed is my/our gift to aid The Foundation: lightening. Kaufman gives us many 4 1. General contribution ______facts but avoids the secret sparks of To help improve the 2. Memorial gift Cardozo’s human flame. legal system and In memory of ______Kaufman’s biography of Cardozo meet the legal needs To be notified of gift: may be the best and most complete so of New Yorkers Name ______far, and for that we should be thankful, Address ______but it is in no way the last word. It 3. Special occasion gift should not cut off or discourage further reasons why In honor of ______study and writing about the great judge 4 Address ______from New York. Too much remains to 1. Help ensure that legal counsel is Special occasion ______be done, too much remains to be there for the indigent and those probed, too much remains to be ex- in need. 4. Other (please specify)______plained about the life and achievements 2. Open the eyes of students and ____I would like to make a bequest or other planned gift. Please have a Foundation representa- of Cardozo. The existing books should adults to the vital roles of lawyers tive contact me to make arrangements. stimulate, not stifle, further inquiry. and judges. Pay by ■ Check ■ Credit Card Of course, further inquiry may 3. Aid initiatives to make the justice ■ American Express ■ Discover never reveal the secret of Cardozo’s ge- system more effective. ■ Master Card ■ VISA nius. It may not be possible to trace 4. Provide lawyers and law students Credit card Number: creativity and originality to particular with resources for their professional ■■■■ ■■■■ ■■■■ ■■■■ ■■ ■■ ■■ events or relationships, conversations development. Exp. Date: or influences in a person’s life. Perhaps Signature______the Cardozo mystery is unsolvable. For questions or further information: The New York Bar Foundation DANIEL J. KORNSTEIN is a partner at One Elk Street, Albany, NY 12207 Phone 518-463-3200 • www.nysba.org/foundation Kornstein Veisz Wexler & Pollard, LLP, in Manhattan.

48 Journal | May 2003 ATTORNEY PROFESSIONALISM FORUM

To the Forum: Although Canon 7 of the Lawyer’s I am a litigator who practices with a Code of Professional Responsibility re- This column is made possible small firm. I am involved in a federal quires that, “A Lawyer Should Repre- through the efforts of the NYSBA’s case in which my relationship with my sent a Client Zealously Within the Committee on Attorney Professional- adversary, a partner in a large, national Bounds of the Law,” the Ethical Con- ism, and is intended to stimulate firm, has taken a turn for the worse. I siderations should give pause to the thought and discussion on the subject requested her consent to a two-week overly zealous. Ethical Consideration of attorney professionalism. The adjournment of a summary judgment 7-38 provides that, “A lawyer should views expressed are those of the au- motion so that I could go on a previ- be courteous to opposing counsel and thors, and not those of the Attorney ously-scheduled family vacation. No should accede to reasonable requests Professionalism Committee or the trial date had been set, and I therefore regarding court proceedings, settings, NYSBA. They are not official opinions on ethical or professional matters, nor didn’t see a problem. However, after continuances, waiver of procedural should they be cited as such. (purportedly) consulting with her formalities, and similar matters which The Attorney Professionalism client, my adversary called me back do not prejudice the rights of the client.” Committee welcomes these articles and advised that although she would (Emphasis added.) Your adversary and invites the membership to send in have been willing to agree to the ad- properly considered the rights and comments or alternate views to the re- journment, her client refused to give needs of her client in determining sponses printed below, as well as ad- his consent. whether or not to consent to your re- ditional questions and answers to be As it turned out, I was still able to quest for an adjournment. However, considered for future columns. Send join my family for the vacation, but not your adversary not only consulted your comments or your own ques- without working nights and weekends with her client, but also delegated to tions to: NYSBA, One Elk Street, Al- in order to comply with the motion him the exercise of professional judg- bany, NY 12207, Attn: Attorney Pro- schedule. Not long after this incident, ment as to whether or not the re- fessionalism Forum, or by e-mail to the same lawyer telephoned me to requested adjournment would be preju- [email protected]. quest an adjournment of another mo- dicial to his rights. tion in the case, based on her own per- In this regard, I think your adver- sonal health. She declined to specify sary erred. A judgment as to whether September 1997, which are guidelines the health problem. I was angry that I or not an adjournment should be intended to encourage lawyers to ob- had to make personal sacrifices be- granted must be made by the attorney, serve principles of civility and deco- cause of my adversary’s intransigence; not by a lay person. By way of illustra- rum. Paragraph III recites that “A I was suspicious of the bona fides of her tion, if a client instructed his attorney lawyer should respect the schedule health problem; and I was inclined to to disregard certain local customs of and commitments of opposing coun- repay her lack of civility in kind. On courtesy or practice – for example, not sel, consistent with protection of the the other hand, there was still no to return phone calls promptly – that client’s interests.” The New York State scheduled trial date in the case and no attorney would be duty-bound, under Bar Association Guidelines on Civility demonstrable prejudice to my client by the Code, to disregard the instruction. in Litigation has a similar guideline. the requested adjournment. Ulti- Likewise in your case. Although the at- Under ordinary circumstances, this mately, I gave consent, but I feel more torney’s client had an interest in expe- means that a lawyer should agree to than a bit used. This is likely to come ditious resolution of the matter, the reasonable requests for adjournments, up again – if not with her, then with case was not yet on the trial calendar, or for a waiver of formalities, when the someone else – so my question is this: and there would have been no obvious legitimate interests of the client will What were my professional obliga- harm in granting the adjournment. not be compromised. tions to my adversary? That being said, it does not fully an- You candidly acknowledged that Steamed in Syracuse swer your question, because you were the case was not yet on the trial calen- on the receiving end of the discourte- dar, and that there was no pressing Dear Steamed: ous act. I think you did the right thing reason not to grant your adversary’s It sounds to me that you success- in not responding in kind. Both you – request, aside from your adversary’s fully resisted a gut instinct to teach and especially your adversary – might prior discourtesy. Under the circum- your adversary a lesson. The question want to consider the New York State stances, it is apparent that you prop- is, what kind of a lesson would that Standards of Civility, announced by erly granted the adjournment, how- have been? the Office of Court Administration in ever distasteful that might have been

Journal | May 2003 49 for you. As one commentator has QUESTION FOR NEXT ATTORNEY happens to be an attorney) unless they wisely observed in this magazine: PROFESSIONALISM FORUM: accede to the proposed settlement. Fi- “The fact is that you cannot control To the Forum: nally, my client asked me to advise my how opposing counsel will act, but I have a client who is in a heated adversary that it would be in his you can always control how you dispute with Mr. Vulnerable, a former client’s best interest to settle the dis- act.”1 I hope that your courtesy con- business partner. My client has re- pute so that his client’s fraudulent rep- tributes to a softening of the relation- quested that to induce a settlement of resentations during the initial negotia- ship between you and opposing coun- the dispute, I pose the threat of a law- tions do not come to the attention of a sel. And you may get a different suit by sending a draft complaint to disciplinary committee. response the next time you ask for an counsel that has been retained by Mr. Sensing my uncertainty concerning adjournment. Vulnerable. My client asked me to in- his directions and suggestions about clude a cause of action that is based strategy, my client asked me if he The Forum, by upon specious allegations that will be should negotiate directly with Mr. Vul- Barry R. Temkin embarrassing to Mr. Vulnerable. To put nerable rather than involving counsel. Jacobowitz, Garfinkel & Lesman even more pressure on Mr. Vulnerable, I am having trouble determining New York City my client wants me to suggest to my whether my client’s directives consti- adversary that my client has knowl- tute zealous representation or unethi- 1. John Stuart Smith, Civility in the edge that Mr. Vulnerable engaged in cal conduct. Courtroom from a Litigator’s Perspec- tax fraud which we will report to the tive, N.Y. St. B.J., Vol. 69, No. 4, at 28, 30 (May/June 1997). authorities (including a grievance Sincerely, committee since Mr. Vulnerable also Confused in Canarsie

Crossword Puzzle answers from March/April 2003 issue.

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P NYSBA For a FREE TRIAL to Loislaw go to: B E N E F I T http://signup.loislaw.com/freetrial (access code NYF02) or call 1-877-564-7529 today! Although the prefix for was widely The word kosher (which I do not used in Old English, it is used less have to tell readers means “prepared LANGUAGE often in Modern English. It still ap- in accordance with Jewish dietary pears in words like forgo (“relinquish laws”) appears more than 800 times in TIPS completely”), forbid (“prohibit ut- LEXIS, which will not surprise readers. terly”), forgive (“excuse completely), But that word is also used figuratively forsake (“leave irrevocably”), forswear in many cases. There is the insistence, B Y G ERTRUDE B LOCK (“renounce unalterably”), and in a few in United States v. Erwin2 that the law other words. Legal language, being uestion: Please define the word “tell the felon point blank that conservative in nature, probably uses notwithstanding. I believe many weapons are not kosher”; Texas Pig the for prefix more frequently than it is lawyers use that word incor- Stands, Inc. v. Hard Rock Café Interna- Q used in general English. Outside of the 3 rectly, as in the following statement: tional, concludes that “though not en- law, people prefer to add the adverb up (Paragraph 18) “Notwithstanding the tirely kosher, Hard Rock’s actions are to indicate completion. Compare, for preceding paragraphs, you shall pay not . . . swinish.” (The Pig Stands case, example, the statements, “She used it” into the fund the sum of $1,000.00.” according to the Annals, is just one in a and “She used it up.” But the adverb When a previous paragraph states that series of pork jokes.) up is now being used gratuitously and you shall not pay $1,000.00, I believe Some time ago, I suggested that the redundantly, as in a notice in the news: that this statement relieves the neces- “uh” sound in English has a pejorative “Readers [responding to a poll] offered sity of paying that amount, but fellow connotation. I mentioned words like up suggestions on taxes.” lawyers have said that I’m wrong. glut, funk, and stunk as a few examples, Who is correct? Law students are certainly not the and, of course, the advertisement for Answer: You are. The word notwith- only people who confuse the prefixes Smucker’s preserves, “With a name standing, as used above, is a preposi- for and fore. Journalists and judges like Smucker’s it has to be good.” Fur- tion, with the meaning of “in spite of” make the same mistake. A headline in ther research indicates that some pejo- or “not prevented by.” So Paragraph a daily newspaper recently an- rative English words are derived from 18 means that “in spite of” whatever nounced, “Foresaking a Chance to Yiddish words with similarly pejora- preceding paragraphs had to say on Repay a Debt.” And a 1981 court opin- tive connotations. this subject, you must pay the ion begins, “Notwithstanding the for- A 1972 New York case concluded $1,000.00. Notwithstanding can also be going . . .” that calling the food at a restaurant 4 a conjunction, meaning “in spite of the Potpourri “ground-up schmutz” was not action- fact,” as in, “It was the same cause of Nancy L. D’Antuono, professor of able because it expressed only an opin- action, notwithstanding that the facts Italian and chair of the Department of ion. And the word klutz, defined as differed.” And it can be an adverb Modern Languages at St. Mary’s Col- “slang” for “a dull-witted person, a meaning “nevertheless” or “anyway,” lege, Notre Dame, commented in an e- bungler” comes from the same Yiddish as in, “The suit was brought notwith- mail that the word agita (discussed in word meaning “a wooden block.” One standing.” of the parties in Klopp v. Wackenhut this space some months ago, eliciting a 5 Question: My law students spell flood of responses from New York Corp. contended that “[i]t had no duty the word foreseeable without the first e. readers) had been carried down to design the security station for Is there a rule I can give them to avoid through generations of Italian-Ameri- klutzes and total idiots.” this misspelling? cans and “is now common parlance in The Yiddish word chutzpah is firmly Answer: Fortunately there is a sim- all circles of linguistic origin, much like ensconced in English. It was used four ple and reliable test that decides the so many Yiddish expressions.” She times in published opinions in 1973, spelling of the prefixes for and fore. The added that she is a native Brooklynite and even then courts didn’t bother to spelling fore means “before.” It is at- of Italian extraction. define it. (The American Heritage Dictio- tached to a number of words, like fore- Another reader, Harvard Lecturer nary laconically defines it in two seeable, foreclosure, and forefather, to Judith McLaughlin, sent an article that words, “brazenness, gall.”) Since 1980 mention only a few. On the other first appeared in the Yale Law Journal chutzpah has appeared more than a hand, the prefix for, which is cognate 463 (1993) and was reprinted in Annals hundred times, while “unmitigated with the Modern German ver, adds to of Improbable Research,1 confirming the gall” appeared only 13 times. The most the word to which it is attached a sense adoption of Yiddish words into the famous definition of chutzpah is a legal of completion, exhaustion, or destruc- English language. Here are some com- one: it’s when a man kills both his par- tion. Compare, for example, the Ger- ments about these words, from the An- ents and begs the court for mercy as an man word verboten with the English nals version. orphan. word forbidden.

52 Journal | May 2003 In 1970 the Second Circuit felt it necessary to define bagels as “hard rolls shaped like doughnuts.”6 The need for NYSBA Member this (incorrect) definition no longer exists. Yiddish has replaced Latin as “the spice of American argot.” Professor Discount Programs D’Antuono says that Yiddish expressions are part of her speech, although she sometimes has to define them for her Middle West students. Enhance the efficiency and lower the cost

GERTRUDE BLOCK is lecturer emerita at of your practice with exclusive discount the University of Florida College of programs for NYSBA members. Law. She is the author of Effective Legal Writing (Foundation Press) and co-author of Judicial Opinion Writing (American Bar Association). Hardware & Legal Office Products &

1. Alex Kozinski & Eugene Volkh’s Software Services “Lawsuit, Schmawsuit” appeared in • AbacusLaw • Blumberg Forms Online 103 Yale Law Journal, p. 463 (1993) and Annals of Improbable Research, p. • CaseSoft • NOVA credit card 6 (Sept./Oct. 1996). • Gateway® processing 2. 902 F.2d 510, 513 (7th Cir. 1990). • PCLaw • PennyWise office products 3. 951 F.2d 684, 698 (5th Cir. 1992). • ScanSoft®, Inc. • UPS & Airborne Express 4. Steak Bit of Westbury, Inc. v. Newsday, overnight delivery services • Trust Accounting Made Inc., 70 Misc. 2d 437, 438, 334 N.Y.S.2d 325, 328 (Sup. Ct., Nassau Easy (TAME) Legal Research & Co. 1972). • WordPerfect Office 2002 Alerts 5. 824 P.2d 293, 297 (N.M. 1992). 6. NLRB v. Bagel Bakers Council, 434 Financial Services & • LexisNexis™ F.2d 884, 886 (2d Cir. 1970). Insurance Programs • Loislaw • MBNA Financial Services • CourtAlert • Bertholon-Rowland Other Insurance • American Lawyer Media MEMBERSHIP • NYSBA-sponsored ABA (Discounts on select publications) Retirement Program • BAR/BRI TOTALS • Hertz & Avis

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Journal | May 2003 53 Jason Paul Conti Natalie Elizabeth Fay Jeffrey S. Grand Jacques Cook Timothy Johnson Fazio V. David Granin Bridget Ann Cooney Joseph R. Feehan Notoya S. Green NEW Christopher Edward Laura A. Fernandez Antoinette Lorenza Copeland Joseph Anthony Ferraro Greenaway MEMBERS Dena L. Copulsky Tony D. Feuerstein David Scott Greenberg Kristin Dorothy Corapi Harmon L. Fields Scott Jason Greenberg WELCOMED Caroline Mala Corbin Mark Joseph Fiore Stacy J. Greenhouse Justin Michael Cordello Julie M. Fiorello Glenn Jason Greilsamer Brandon H. Cowart Elizabeth Flanagan Christopher Leigh Gretina Thomas F. Croke Gabrielle May Flateau Melissa Leigh Griffin FIRST DISTRICT Julie Bogomolny Robyn Suzanne Crosson Alayne Cynthia Naomi Pamela Joy Griffith Mark Joseph Abate Alexander Spicola Bokor David Crystal Fleischman Gera Grinberg Madina Y. Abbasova Samuel Ethan Bonderoff James Joseph Cummings Stephen Michael Fleming Linda Marie Guecia John Anthony Adamo Toby Shawn Stuart William Arthur Curran Dierk Allen Flemming Maria Isabella Guerra Sameer Nitanand Advani Bordelon Albab Abraham Dabela Heidi Marie Flinn Aparna Gullapalli Holly Agajanian Laurence Drew Borten Amy Michelle Danziger Alexandra Elizabeth Menaka Guruswamy Evelyn R. Agnant Stuart Michael Boyarsky Felix Aleksandrovich Flynn Alicia Rosa Gutierrez Kyle Ross Ahlgren Michael A. Bracchi Dashevsky Adam I. Forchheimer Maria Evenlina Gutierrez Hae-june Ahn Saul Brander James Edward D’Auguste Adam Douglas Ford Elazar Guttman Joshua Seth Akbar Benjamin Peppercorn Stephen Charles Davey Peter M. Frankel Robert Guttmann Andrea Akivis Bratter Ephraim Yitzchak Michael Anthony Franlin Raymond Nicholas Daniela Alba Eric Scott Braverman Davidowitz Schuyler Hendricks Hannigan Todd Albert Justin Charles Breen Ethan Zane Davis Frautschi Gordon Christopher Carmen Alonso Jerrold Lyle Bregman Timothy Sean Davis John Edward Freeland Harriss Dan Alster Neil A. Bregman William Floyd Davis Daniel L. Freidlin Tishawa Dellissia Hart Allison C. Altman Alexia Breuvart Kerri Marie De Ruyter Lisa Jean Fried Aileen Patricia Haviland Sheryl Helayne Altwerger Susan Carol Bronson Justin A. De Spirito Bradley Ryan Friedman Nicholas Evan Hecker Ginger Dawn Anders Nia M. Brown Brenna Kathleen Jason Evan Friedman Arie Heijkoop Michael Henry Antonutti Sheryl Ann Bruzzese De Vaney Kevin Andrew Fritz Jennifer Lynn Heil Nicole Michelle Anzuoni Lindsay A. Bush Stephen Maxwell Dehoff Andrew J. Fuchs Eric Rieger Heller Jinan Monique Arafat James Peter Byrnes Robert Alexander Kevin Dugald Galbraith Victoria Ann Heller Kendra Louise Archer Madelyn Calabrese Del Giorno Karmit Shlomit Galili Linda Eileen Henry Juan Alberto Arteaga Molly Elizabeth Melissa Lynn Delis Salil Kiran Gandhi Susan Christine Henry Anna Avrasin Calvanese Jonathan DeMay William A. Garcia Keely Lane Herrick Andrew M. Ayers Claire Diana Calvin Jonathan Charles Derek Benjamin David Gardner Jennifer Lynn Herring Vanessa Michael Bakert Jaimee Lynn Campbell Christina Evangelos Seanna Beck Garrison Louise Hiblin Mimma Barila David Caracciolo Diamantis Christopher Jon Gawley Khue Van Hoang Kelly M. Barnard Elizabeth Louise Carr Caroline Spector Dicks Michele Geiger Jonathan Rath Hoffman Robert N. Barnard Lucas Haig Carsley Robert Dale Doerfler Lina Gelfer Piper Hoffman David Michael Baronoff Jessica Faye Carter Kim Marie Domilici Aude Gerspacher Gary L. Holland Kenneth Richard Barrows Marco-Aurelio Casalins Derek Brandon Dorn Allen Aleksey Gessen Angela Diane Hooton Stephanie Dawn Megan Kathleen Jeffrey Anthony Padma Ghatage Judy Eliza Hopkins Batchelder Caughran Dougherty Rebecca Sunite Gideon Catherine Horta Matthew Clinton Bate Cara Ann Chambers Joanne Amy Doughty Dina Ziva Gielchinsky Linda Anne Horvath Michael Carl Becker Stephanie Siu-Ying Chan Dara Michele Drossman Melissa Sharon Gillespie Nicolas Brian Hoskins Robert Harrison Bell Rex T. Chang William Joseph Alexander Porter Gillette Andrew Robinson Hough Jamine Anne Bellarosa Christopher Raymond Dubanevich Betsy R. Ginsberg Jennifer E. Hu Christopher Jason Bellotti Chase Felice Marie Duffy Thomas V. Giordano Imar Lyman Hutchins Shiri Ben-yishai(engel) Kostas Cheliotis Charles H. Dufresne Jeremy B. Glickman Jannine Marie Huth Daniel Herbert Bennett Christopher Chen Blake Forrester Dunlap Andrew Charles Melissa Jean Hutson Tracy L. Bentley Michael C. Chen David Matthew Dunn Goldberg Michael George Insalaco Jessica Alison Berets Damian Gordon Charles Gillen Dunne Dianna Gail Goldenson Brian Thomas Isaacson Joshua David Bernstein Chesterman Andrew Dutton Jill L. Golderg Michael H. Isenberg Nicole Ann Berryman Theodore Joseph Bartosz M. Dzikowski Beth Danielle Goldman Souren Avetick Israelyan Farrah Robyn Berse Chiacchio Matthew John Easter Geoffrey Fredric Ilysa Wendi Ivler Carol Jean Beyers Edward K. Chung Daniel Michael Eggerman Goldschein Rashondra Martrice Mamoni Bhattacharyya Seiyoung Sam Chung Andrew James Ehrlich Antonia Golianopoulos Jackson Diahann Billings-Burford Peter L. Cohen Morris Ehrlich Alvaro Gomez Erica Ruth Jacobson Christopher Philip Peggy Lyn Collen Jesse Eisenberg De Memillera Myriam Jaidi Bisgaard Mary Ann Alvarez Shawn J. Eisenberg Celso M. Gonzalez-Falla Christopher Jamal James Federica Bisone Colombo Sheldon Elefant Peter G. Goodman Peter Janovsky Robert Nathaniel Black Danielle Colonna Ellen Victoria Endrizzi Eddie L. Gordon Patrice Polyxene Jean Alexander Blishteyn Marcus Anthony Colucci Adam Engel Alexis Gorton Gongjun Ji Emilio G. Boehringer Michael Earl Comerford Juan Carlos Espinoza David Sanders Gorton Dina Rynel Johnson Thomas John Bogal Willa Concannon Bruce E. Fader Kathryn Sarah Gostinger Mayah Yael Judovits Anne E. Bogoch Jon Jerome Connolly Nadine Farid Yisroel Graftstein Veronica Seungwon Jung Diana Bogomolnik William Patrick Connolly Serena Iva Farquharson Gina Marie Graham Jason Daniel Kalish Matthew J. Farrell

Journal | May 2003 55 Jennifer Natalie Kalnins Jessica Lively James A. Moore Talia Ruth Poleski Lori Elayne Scher Arielle D. Kane Matthew David Jason Darius Moore Ronelle Corinne Porter Frank Rocco Schirripa Rachel Brothman Kane Livingston Sidaya Ama Moore Rachel Leah Posner Michael H. Schmieder Ryan Anthony Kane Elizabeth Anne Long Vanessa Marie Morales Andrew V. Poznanski David T. Schubauer Jacob Max Kaplan Peter Joseph Lopalo Lesley Aimee Morisset Maya Gopika Prabhu Daniel Foster Schubert Joel Preston Karansky Gavin Michael Loughlin Jorge Carlos Jascha Daniel Preuss Daniel James Scott Richard C. Kariss Steven William Lozner Moros-Nahim Adam Joshua Price Yan Senouf David Steven Katz Roopal Premchand Max Anderson Moseley Rebecca Tamara Price Andrea Jean Sessa Daniel Scott Kaufman Luhana Scott William Moss Laurie Beth Puhn Bejal Jayprakash Shah Ian H. Kaufman Rachael M. Luken Andreas Mueller-Driver Manjari Dahlia Hassan Abbas Shakir Donna M. Keane Matthew Abraham Lux Kumi Murano Purkayastha Amy Efron Shapiro George Michael Kelakos Kerri Anne Lyman Michael Simon Musante Hongxu Qin Robert J. Shapiro Wesley Herman Kelman Garrett Adam Lynch Stefan Naresh Nadarajah Huiyue Qiu Matthew Steven Shaw Wendy E. Kemp Timothy A. Macht Noriko Nagasaki David R. Quigley Zita-Maria Sheehan Courtney Paige Kerker Diane Marie Macina Saya Nakano Marina Rabinovich Adam Harris Sheinkin Elizabeth Alia Khan Eve Tova Madison Jennifer Amie Napuli Mark Michael Racic Brian Michael Sher Atossa Kia Brendan Stephen Maher Rachel Lynn Nass Jerome Carl Ranawake Nkosi Diallo Shields Daniel J. Kikel Robert Lawrence Maier Lauren Charno Neches Emily Levine Rapalino Bradley Scott Shoenfeld Buhm-joon Kim Craig Matthew Mait Netanel Newberger Joshua Nissim Ratner Irina Shteynberg Jonathan Kim Georgia Amanda Mallan Eric R. Newcomer Adam Daniel Raucher Mark Solomon Silver Maureen Peyton King Catherine Ann Mangan Karen Anne Newirth Corey Allan Rayburn Mason Chandler Simpson Linda Elizabeth Kingsley Pamela Marcogliese Lawrence Hale Newman Joseph Rebello Ji Won Sin Russell Alexander Kivler Brian Seth Marcus Carey W. Ng Seth Eric Redniss Thomas V. Sjoblom Brian Edward Klein Abigail S. Margulies Michael Paul Nicklin Alon Rehany Constantine Nicholas Minoru Kobayashi Anabel Cynthia Mariani Eri Nishikawa James Matthew Reiland Skarvelis Takahiro Kobayashi Josephine Marrali Robert Lyon Norton Paul J. Reilly Alisha Clare Smith Aya Kobori Katherine E. Marshall Michael Paul O’Brien Stefan H. Reisinger Heather Alexia Smith Gregory Michael Koch Mia Rene Martin Margaret M. O’Connor Sheila Mackenly Rejouis Joshua M. Smith Marianne Laura Nicholas Bryan Martin Orla J. O’Connor Dana Ann Remus Richard George Smolev Kotubetey Vincent Robert Martorana Jennifer Clair O’Loughlin Douglas Campbell Rennie Jason Willis Snell Thomas Kozak Shinsuke Matsumoto Ruth Ann O’Neil Sarah Beth Reynolds Austin Kyongwon So Jacob Justin Kramer Yuto Matsumura Christopher John O’Rielly Han Saem Rhee Desmond C.F. So Jonathan Adam Kramer Allison E. Maue Temietan Ofuya Soo-mi Rhee Rikki Alyse Solowey Caroline Louise Kraus Sharon Kay Mauer Sanae Okada Jennifer Whitten Richards Saema Somalya Michael Edward Kraver Michelle M. Mauro Jaclyn Amanda Okin Robert A. Riva James Richard Sommer Preethi Krishnamurthy Christopher Ryan May John Nicholas Orsini Kimberly Lorene Roberts Sang-hoon Song Ely M. Kronenberg Courtney Ann Mc Bride Bisola Opeyemi Osho Lesley Raye Robertson Marilyn Weaver Sonnie Angela L. Krueger Steven Kepner Richard Joseph Pacheco Jeffrey Louis Robins Andrew Jay Sossen Susan Krunic McCallister Elizabeth Padilla Corinne Renee Robinson Kimberly Ann Sparagna Erica W. Kuo Sarah Eddy McCallum Daniel James Paisley Elizabeth Anne Roche Aruna C. Spencer Ronny Lee Kurzman Joseph M. McConnon Adina J. Pallante Shannon Ann Rogers Daniel Franklin Spitalnic Renet Margaret Anne Robert David McCreanor Joanna Lee Panzera Allan J.P. Rooney Lakshmi Srinivasan Ladocsi Edward Michael Lourdes Elaine Paredes Christopher James Frank Kirk Staiano Ellen Elizabeth Lafferty McDonald Barbara Anne Parvis Rooney Meredith Leigh Steele Rosemary L. Lane John Philip McGrath Chakshu Shashikant Patel Anne Laure Roret Jennifer Jaye Steen Richard Hartshorn John Patrick McGuinness Rosa Maria Patrone Charles Nathan Rose Jeffrey Todd Steiner Langan Gregory M. McLaughlin Stacey Elizabeth Pauker Nicholas Rose Russell Mark Steinthal Alyson Leigh Lanzer Meloney Lambert Jennifer Ellen Pearl Sarah C. Rosell Brian Scott Stern Robert Allen Laplante McMurry Maria Antoinette Alissa Rebecca Rosen Michael Jeremy Sternhell Joshua James Larocca Venkata Medabalmi Pedraza-Perez Lauren Fox Rosenberg Michael Gavin Strapp Ali Reza Latifi Andrew Hodge Meier Andrew Michael Peken Sherie Beth Rosenberg Michelle Suh Jennifer H. Lee Seth R. Merl Denis Lynn Penn Rachel Adina Rosenthal Ana Marie Sulit Melissa Lori Lee Adam Benjamin Michaels Wilfred Jose Anthony Jason T. Ross Denis James Sullivan Sung-a Lee Atara Miller Pereira Gloria Jean Rottell Matthew Summa Yisroel Y. Leshkowitz Jessica Wendy Miller Eucaris T. Perez-Valero Abby Faith Rudzin Mira Sun Felix Samuel Leslie Racquel Alexandria Rebecca C. Pergrim Patricia Russo April Chun-Yee Sung Richard Leu Millman Michael Adam Perlmutter Katherine Elizabeth Andrew Paul Swary Julie Allyson Levi John Jude Mills Charles John Pesant Russum Joseph Taffy Kenneth Michael Levy Shigeki Minami Polixene Petrakopoulos Teresa G. Sadutto Venera Evgenieva Reuben John Levy Joseph Gleason Minias Justin Dennis Petruzzelli Candace Christine Sady Taouchanova Robert Joseph Lewin Erum Zehra Mirza Jaime A. Phillip Venus Eva Sahwany Justin Michael Tarshis Anika Lewis Gianfranco Gustavo Christine Ann Phillips Seth Lorin Saideman Adam G. Tarsitano Henry Li Mitrione Rachel F. Phillips Isabelle Sajous Corey E. Tarzik Jason Matthew Licht Alina Janet Moffat Renee Barbara Phillips Peggy D. Sanchez Angel Taveras Paul S. Lim Michelle Diane Moller Henry Bowman Piper Erick Matthew Sandler David J. Tayar Gideon Lin Marcus Monteiro Andrew E. Platek Christina A. Santiago Lisa Jill Teich Joshua D. Liston Concepcion Altea Michael Paul Plodek Takefumi Sato Ira Kenneth Teicher Matthew R. Litt Montoya Amy Lynn Pludwin Robert Wilson Scheff Raz Tepper Xiangmin Liu Bernice Polanco

56 Journal | May 2003 Rene John Theriault Anthony David Zatkos Karl Matthew Nobert David John Oppedisano Mark Phillip Popiel Charles Daniel Thompson Andrew D. Zdrahal Margaret A. Nolan Whitney Magee Phelps Matthew John Porter Kerry Grace Thompson S. Jonathan Zepp Safia A. Nurbhai Kate M. Powers David J. Reed Mark Errett Thompson Yue Zhao Kara A. Oboler Sandra D. Rivera Wendy Sue Reese Beatrice Njeri Thuo Meredith Leigh Zinman Jeffrey Charlton Parris Desbiens Karen M. Richards Gregory Alan Todd Jennifer Ann Zinna Shanell Parrish-Brown Kathleen Anne Romanow Aaron J. Ryder Serge Todorvich Julie A. Zwibelman Alla Peker Barbara Ann Rothaupt Robbi L. Sackville Jacqueline Bridget Judith T. Pierce Benjamin A. Scales Rachael E. Savanyu Tomasso SECOND DISTRICT Kevin Adam Reiss Jennifer C. Shatz Kristin Ann Shanley Marlene Toquica Ajamu Ali Lauren Risolo Derek J. Spada Michael Erik Shannon Matthew Arnold Melissa A. Angotti Ryan Renaldo Rodriguez Jeremy Paul Spiegel David B. Snyder Traupman Joshua A. Barsky Nicholas Justin Rose Derrek Tremonte Thomas Nicole M. True Anthony Stanley Ann-marie Beckford Alaba Abiodun Rufai Robert Charles Tietjen Melanie Wlasuk Traymore Stefanie Birkmann Shannon Leslie Saks Mathew B. Tully Bonnie Alison Tucker Larisa Blinderman Alec Sauchik Jerry Lee Turcotte SIXTH DISTRICT Gina Marie Tufaro Zina Bronfman Matthew Ryan Scoll Stephen D. Wendell Lorelei B. Smith Miller Jeremy Turk Arkady Bukh Jageshwar Sharma Mary A. Zendran Alexander Muller Andrew C. Udin James M. Caffrey Marina Shepelsky Shane Aubrey Zoni Wayne R. Nellis Loren Robert Ungar Ronny Carny Laura L. Shockley Matthew Alan Peterson Pablo Javier Valverde Jerome David Chang Robbin Slade FOURTH DISTRICT Mary Jane Schubert Bohorquez Claude A. Charles Sherry T. Stembridge Rachael Wendeen Lorelei B. Smith Miller James F. Van Doren Barry Clarke Stacey Beth Strich Barrantes Sterling Francis Williams Edward Albert Vasquez Brad Coven Kathryn Mary Sweeney Vernitta Nadine Svetlana Vaynshenker Anthony David Crispino Jean Lydia Tom Chambers SEVENTH DISTRICT Jenna Moore Victoriano Jeffrey Thomas Curiale Van Bich Thi Tran Rachelle R. Cohen Michael John Ballman Steven B. Vine Marlene Delon Vlad Turkiya Patricia Ann Connelly Jessica Bret Birkahn Barbara Viniegra Nicholas Robert Diamand Angelo Jamie Vasquez Kristine K. Flower Timothy Scott Broshears Nicholas J. Voglio Lisa Kristin Digernes Michal W. Walder Thomas Keenan Frederick Andrew Martin Butler Harald K. Voigts Igor Dodin Michael Lawrence Ilene S. Kleckner- Kathryn Mary Carney- Petra Von Ziegesar Michael J. Doherty Weisberg Friedman Cole Holly A. Vu Andrew J. Elmore William T. Whitenack Amy J. Knussman Kathleen T. Carter Adir Gurion Waldman Clinton Alan Elmore Bernard Williams John A. Mancini David P. Case Joshua Wesley Walker Galina I. Feldsherova Stacey Lynn Peck Eric Ryan Chase Dana A. Wallach Michael J. Fitzpatrick THIRD DISTRICT Michele Schettino Kevin M. Colmey Amanda Ruth Waller Keisha Monet Gaillard Frederick M. Altman Elizabeth O. Williams Stephen Joseph Dilorenzo Michelle Audrey Walsh Leslie Michelle Gales John Jay Schuyler Arnold Karla Marie Williams- Gail A. Donofrio Alecia F.M. Walters Keisha Galliard Rebecca May Bausher Buettner Noah Doolittle Lisa H. Wang Diana Kahn Gersten Stephen Andrew Becker Noah R. Doolittle Kanchana Wangkeo Colin Yong-ping Goh Alexander Louis Betke FIFTH DISTRICT Perry Michael Duckles Andrew Howard Warren Gloria Goldstein Lynn M. Blake Gilles R.R. Abitbol Vincent M. Ferrero Aaron David Wasserman Evan Charles Erin K. Calicchia Christine A. Benda Chad William Flansburg Kristy Lee Watson Hammerman Mary Frances Carr Frank E. Blando Annette M. Gifford David Stefan Watts Tahmina Kousar Hashmi Jeremy Chen Kathleen Walsh Bowen Jon Nelson Griffin Lashonne Rochelle Watts Dennis Conan Healy Mark Chieco Kristie Marie Carter Chad M. Hummel Richard Webster Belinda Lavinia Heath Michael C. Clarke Sara M. Connell Laura A. Hutchinson Ian M. Weiskopf Julia Anna Hetlof Michael C. Conway James William Laura Anne Jenks Barton J. Weiss Natalie Marie Ippolito Tammy L. Cumo-smith Cunningham Kim Koski-taylor Marni Elyse Weiss Jamila Elizabeth Joseph Erin M. Davis Eric Michael Dolan Jeffrey Douglas Kuhn Rachel Hold Weiss Peter M. Khrinenko James Clark Davis Darlene L. Donald Jon Lazenby Elizabeth Ann Wells Christopher David King Owen William Demuth Sharon E. Fellows Jon Charles Lazenby Christian Wentrup Laura Kittross Christina Lynn Dickinson Sheila Maureen Finn Sarah Ellen Marshall Daniel L. Wilk Lynnann Klotz Susan M. DiDonato Gregory Leo Germain Kevin A. Mattei Kevin Wayne Williams Rupal Hasmukh Kothari Todd Joseph Fanniff Ronald T. Gerwatowski Heather Maure Scott Steven Winter Trisha Elizabeth Lafache Ariel Futerfas Kelly Jo Graves Ryan T. McAllister Sean David Wissman Lori Beth Lasson Fatima Goodman Maureen T. Kissane Kevin K. McKain Neil Edward Wolitzer Chavie D. Levin Brian R. Haak Rita Kuyumcuoglu Michael James Mengel Catherine F. Wong Maria Litos Ursula Eve Hall Kathryn J. Land Melissa Anne Meyer Richard C. Worcester Sean Patrick Loughran Randi Bea Heitzman Jessica Manieri Karen M. Modzel Vanya Wright Nathalie Mandel Lisa Michelle Kenneally- Jessica Marie Manieri Jennifer M. Noto Cindy Yang Rosevelie Marquez Dochat Louis H. Mannara Alexander M. Osborne Michael B. York William F. Mastro Natasha Kerry Anthony R. Martoccia Munesh Patel Mathias Andy Youbi James Andrew Mcglynn John William Kraigenow James R. McGraw Katherine Ulrich Saracene Aron Ephraim Neal Daniel Mcmahon Emeric M. Levatich Michael B. Meives Derek Allan Thomson Youngerwood Irena Milosavljevic Marie-Alanna McKiernan Adam William Meyers Kambon Raymond Lei Yu John Thomas Morale Adam Drew Michelini Joseph P. Morawski Williams Susan Jeanine Zachman Mary Ellen Moule Envar Ali Mir Indranil Mukerji Daniel Nathaniel Willkens Julia Anne Zajkowski Agnes Neiger Lori A. Mizerak Scott A. Otis Jack Zaremski Lycette Nelson Kate Han Nepveu Honor Angwin Paul

Journal | May 2003 57 EIGHTH DISTRICT Karen Elizabeth Peterson Luz E. Lopez Yvanne Altagrace Daniel Michael F. Mullen Kelly M. Balcom Daniel S. Piotrowicz John S. Marwell Denise Davis Michael S. Munk Danielle Marie Thomas Edward Popek Gilah Rose Mayer Michael Dibello Courtney Paige Murphy Baldassarre V. Christopher Potenza James Mcknight Elizabeth L. Diesa Elaine Marie Murphy Matthew J. Beck Melissa Potzler Joseph Medic Henry Claude Dieudonne Melissa Marie Murphy Kristy Lynn Berner Melissa Ann Potzler Kenneth Jude Miles Matthew Jed Ditrapani Brian James Murray Sharon L. Black Patrick Gerard Radel Eric Douglas Ossentjuk Douglas Jordan Domsky Ruth Nazarian Mary B. Bowman Colin D. Ramsey Christina Manos Thomas Smith Donlon Camille Nieves Lisa Lu Britton-fusco Melissa Ann Reese Papadopoulos Roseann Victoria Driscoll Carol J. Notias Carla Christiansen Brown James J. Rooney Janel M. Pellegrino John J. Ebel Jodi M. Nyear David Sydney Joshua Paul Rubin Claire Cohan Pizzuti Catherine Ruggieri Michael Joseph O’Connor Bruggeman Destin Ciotoli Santacrose Susan L. Pollet Everett Laura Elizabeth O’Dare Paul J. Callahan Christopher Anthony Jesse J. Prisco Christopher Marcello Charles A. Omage Joy Marie Carrier- Schenk Elise Schwarz Falconetti Adam J. Peretz Lamarca Christopher D. Smith Jeremy Adam Sears Erica Robin Feynman Jodi L. Pyser Jennifer M. Catherine Peter John Sorgi Ami Shah Wendy Michelle Fiel Stephanie M. Reilly Marco Cercone Marc Angelo Phlip Emanuel Starakis Michael N. Fishman Andrew J. Reinhart Brian Cinelli Spezzano Olga A. Tenenbaum Karen Lynne Fiumano Stephen Antonio Jaime Louise Cirulli Rebecca M. Stadler Kelly L. Traver Thomas Michael Fleming Reynolds Bernadette J. Clor Paul Charles Steck Jeffrey Thomas Vespo Amy P. Fletcher Christopher A. Roben Tracie L. Covey Michael A. Szkodzinski Laura Elizabeth Vincenzi Tatum J. Fox Lamont Kenneth Rodgers Tara N. Karch Cross Tiffany M. Szymanek Andrew D. Walcott Matthew Madison Frank Anthony Bernard Ryan King Cummings Jack Trachtenberg Rebecca Ann Williams Daniel Freidlin Rutkowski Rebecca Linette Dalpe Emily A. Vella Uri M. Wohlgemuth Eric David Friedhaber Sharon V. Ryan Johanna M. Dash Justin Todd Wallens Harold B. Woolfalk James F. Gallagher Joshua D. Saltman John Davis Cynthia Lee Warren John A. Zucker Laurie Michele Gapinski Rachel- Anne Scelfo John K. Davis Paul V. Webb James Salvadore Gentile Calliope Schickler Deanna Louise Devries Jamie B. Welch TENTH DISTRICT Kevin Ryan Glynn George Louis Schwab Joanna Dickinson Melanie May Wojcik Stephen M. Abrami Robert Michael Goodstein Heidelind Marta Semmig Louis Brian Dingeldey Henry F. Wojtaszek Michael S. Ackerman Brian J. Grieco Devang C. Shah Scott Duquin Joshua Glenn Alexander James Michael Griffin Rovshan Chingiz Sharifov Jennifer Farrell NINTH DISTRICT Mersedeh Noghrei Gregory Grizopoulos Patrick J. Shelley Jennifer S. Farrell Jennifer Ann Andaloro Aminzadeh Kimberly Grosch Jody A. Shelmidine Karen Beth Feger James Stuart Andes Justin Eric Angelino Ivan Guerrero Beverly McQueery Smith Carmen Lleana Fors German Arevalo Darren A. Aronow Craig Howard Handler Brandy Alexis Smith Brian M. Frank Jeanne Regan Aronson Larry I. Badash Christopher M. Hansen Louis Smookler Sandra Friedfertig Andrew Louis Baffi Dennis Christopher David Harris Beti Soulantzos Melissa Ann Fruscione Alison Elizabeth Breedy Bartling Garrett S. Hayim Elizabeth Walker Spencer Leslie Jean Gibbin Robert Cadoux Jeffrey Ross Beitler Samuel P. Hechtman Gina Marie Spiteri Joseph F. Gogan Stephen Alphonse Cerrato Elana Dina Bernstein Daniel Keith Henthorne Melissa A. Sposato Geoffrey S. Goss Jason S. Charkow Eric Brian Betron Brett David Morris Herr Christian P. Staples Hillary Kaine Green Jerri Ann Chomicki Toni Jean Biscardi Vincent James Imbesi Justin Matthew Stoger Steven R. Hamlin Joshua S. Cole Courtney Lynn Blakeslee Ilana Helen Kahan David Michael Streiner Scott Thomas Hanson June C.M. Colthirst Ivan Marc Braverman Richard J. Katz Sean Roman Strockyj Jennifer Ann Hemming Rose M. Corbett Kristin A. Brenner John Dwight Kern Christina Marie Suriani Robin Nara Hendler Joseph Charles Corneau Rosemarie Bruno Paul Joshua Knepper Jason Tenenbaum Shawn P. Hennessy Dominic Anthony Christopher Douglas Dana Marian Koos Tsedeye Tibebe Joan Grace Henry Crispino Buck Hariharan Krishnaraj Laurie P. Tiberi John Daniel Hocieniec Jennifer Lynn D’afflitto Sean M. Bunting Gopal T. Kukreja Kimberly Dawn Tivin Kevin G. Hutcheson Michael D’alessio Marco Rocky Caridi Jeffrey D. Langlan James R. Tompkins Stephen William Adam J. Detsky Bejo Charles Chacko Samantha Beth Lansky Carrie-Anne Tondo Kelkenberg Stephen P. Dewey Ranakdevi Chudsama Ronald S. Lanza Kenneth N. Troise Beth A. Keller Constantine G. Jessica Lauren Claus Todd Lee Laurie Marie Trotta Laura A. Kelley Dimopoulos Alexandra N. Cohen Gabrielle G. Legendre Kyung R. Um Edward Earl Key William E. Duquette Joseph G. Coluccio Kimberly Jane Lombardo Denise J. Vista Holly L. Kuznicki Judith Anne Ehren Joseph T. Conley Joaquin Jesus Lopez Mark Joseph Volpi Rebecca Diina Lacivita Laura M. Feigenbaum Cristin Noel Connell Marilyn Lord-James Winston S. Waters Josie K. Lipsitz Joy A. Fitzgerald Noreen E. Conroy Lauren Meredith Mandel Jill Weinberg Daly Sarah Ann Loesch Daniel Christopher Domingo Michele Mandell Jill Dana Weinberg-Daly Kevin Eugene Loftus Folchetti Steven Joel Coran Paul J. Margiotta Peter S. Will John D. Lopinski Trecia Ann Gillett Melissa Corwin Linda Marshak Perry Y. Woo Shawn Patrick Mcdonald Brian Gordon Patrick Sean Costello Linda Faith Marshak Melodie Young Ryan McPherson Justin Ari Greenspan Helen Corieth Coulton Thomas William Mcnally Suzanne Zacharias Ryan Andrew Mcpherson Walton F. Hill Jennifer Lee Culver Patrick M. Megaro Xiaochun Zhu James P. Mulhern Alysse Dawn Hopkins Vincent Domenic Holly C. Meyer Michael Brendon Mulvey Carol A. Korwatch D’agostino Marilyn L. Miller ELEVENTH DISTRICT Michael Donald O’Keefe Andrew Seth Kowlowitz Kristy A, D’angelo Dominick Minerva Neslihan Akbas Christopher T. Paresi Todd Ming Chun Li Gerald V. Dandeneau David J. Moran William Antwi

58 Journal | May 2003 Christy Marie Bitet Mark Edward Adams Mitchell Scott Cabot Joshua Easton Ann M. Harris Demetrios A. Bothos Michael Seth Adler Alison Elizabeth Cahill Rebecca Faith Ebert Ethan David Harris Eli Bromberg Jeemun Ahn Christina Nicole Mathew Aaron Eckstein Mark Andrew Harris Dee Dee Byas Hisashi Aizawa Campanella Carl Folke Henschen Megan Jean Harris Mary Nga Lai Chan Elissa Marie Alben Brian Cosmo Cannon Edman Craig A. Hart Warren A. Cinamon Nilesh Yashwant Ameen Rachel Lynn Cantor Steven Andrew Engel Kathleen Roberta Hartnett Diana Jacquelin Anna Anatolitou Robert Brian Caplan Marie Errera Kelly A. Heffernan Demirdjan Jennifer Su-lan Ang Michael Daniel Capozzi Joseph Michael Fairfeild David Richard Julie Fiorello Okay Hyacinth Richard John Capriola Ileana Falticeni Helenbrook Annette Hicks Gill Anyadiegwu Michael Anthony Asteris James Fanikos Chad Helin Steven H. Glassberg Tomas Miguel Araya Carbone John Kenneth Felter Chad John Helin Walter John Glibowski Ernest Arbizo Nancy Weisberg Carman Ethan Abbott Fenn Michael R. Herman Huang Huang Eric Kendel Atkerson Dario Victor Carnevale Ronald A. Ferlazzo Sharon Elaine Hernandez Jun Kang Darryl Bryant Austin Julie A. Cecile Patrick Thoma Finnegan Kristina Amy Knutson Edward Kim Patricia Maria Basseto Charles Centinaro Geraldine Rebeca Fischer Hickerson Gila Deborah Liska Avallone De Sa Lori Renee Cetani Lauren Beth Fischer Jesse Hiney Mary Ann E. Maloney Carolina Avendano Arce Pei Feng Cheng Sean Michael Flanagan Graig Thomas Hoekenga Titus Mathai Xiad Raymond Azar Simon Kai-tse Cheong Elodie Anne Fleury Allison Elyce Holzman Zaheer Amir Merchant David Peter Bailey Warren Bartholomew Chelsey Flood Helen Hong Kimberly Ann Miller Frances Connie Bajada Kam Wai Chik Gregory Lee Florio Christine Alice Judah Neuman Carleton Ezra Baler Yong Kwang Cho Michael Jeffrey Hopkinson Ngozichukwuka Raymond Banoun Gyuwan Choi Foncannon Yutonya Vonschella Henrietta Okwuwa David Lynn Barnes Jihoon Choi Michael Leonard Foran Horton Norma Ovalle Kimberly Ann Bart Alexandra Elizabeth Todd Jeffrey Fox Kerry Gael Hotopp Anthony Chris Paul Douglas Bates Chopin David Matthew Fragale Olivier Francois Hugot Papadopoulos Rajiv Kumar Batra Debra Chopp Robert Jesse Franco Vanessa Wai Shan Hui Euna Park Julie Helene Becker Amit Chugh Alexis Freeman Ruth Patricia Hulston Jason J. Park Julie Frances Bell Lisa Jane Clapp Daphne Geraldine Lynda Yi-tang Hung Andrew C. Puglisi Molly Jennifer Bell Deanna D. Clark Frydman Laura Leanne Ingledew Doric Vivian Sam Brigitte P. Benoit Edmund Kpakpo Cofie Joanne Mary Fungaroli Roger Michael Iorio Dmitriy Shulman Richard W. Benson Travis Daniel Coleman Roy R. Galewski Alexander Ioshpa Daniel Justus Solinsky Meytal Minda Berco Neal David Colton Sean Michael Gallagher Shozo Iwasaki Steven Michael Statharos Arianna Rebecca Berg Mary Moynihan Connelly Michelle Patricia Gallon Jun Hyok Jang Nadira Shani Stewart Alyse Eva Berger Charles Cooper Anna-emily Chamblin Lars Munch Jensen Vania Ming Tseng Roni Eileen Bergoffen George H. Cortelyou Gaupp Segun Tokunbo Jide Nick Tsoromokos Eric S. Berman William Ambrose Cotter Gerhard Paul Gengel Anna L. Johnson Jeffrey Dean Vanacore Christine Nicole Bernacki Cathleen Ann Coyle Christine Petronilla Christina Johnson Jordan Scott Wigdor Vanda Silla De Paula Mackenzie Elizabeth Gerald Christina Fischer Johnson Les Wright Bernardes Crane Simon James Gildener Kathleen Johnson Kathy Giah-Yeh Wu Monica M. Berry Nonna Klimchenkova Alison Elizabeth Matthew Scott Johnson Jackeline Biddle Crane Goldenbrg Edward M. Jordan TWELFTH DISTRICT Randal Scot Biddle Deborah Melissa Crosbie Frances Ann Goldfarb Erin Michele Jordan Surajudeen Gbenga Jennifer Leah Bills Michael Sean Daigle Marisa Beth Goldstein Deepak John Joyce Agbaje Catherine Esther Bocskor Maura Ann Dalton Marcy Elissa Golomb Paige Marie Junker Zeevyah Aliza Benoff Izabela Ewa Boltryk Jeffrey John Danile Maytal Gongolevsky Abigail Denbeaux Kahl Brittany Ann Berkey Gaelle Lia Bontinck Patrick Laurence Davis Christopher John Gaukhar Maratovna Anna Boros Laural Sabrina Boone Michael John De Gonnella Kaliaskarova Thomas Anthony Boyle Matthew T. Boos Benedictis Rebecca Amber Gonzalez Laura Ann Kamps Patricia Bridget Decola Janet Rita Bosi Marinel Malvar De Jesus Tsirina Goroshit Hiroyuki Kano Belinda Delgado Nicole Janet Bredefeld Tracy Lynn De Witt James Kyle Grace Koji Kato Michael Drezin Jenifer Rose Briggs Rajesh De Jeffrey Mark Gradone Tsippy Kaufman Heather Lynne Echenberg Gil Britzman William Andrew Dean Elizabeth May Griffiths Ami Kiira Kayhko William C. Etra John Marley Bronsteen William D. Deane Elizabeth Dara Gross Susan Elisabeth Kearns Beth Renee From Jay Ward Brown Michael A. D’Emidio Kenneth Andrew Gross Charles Patrick Kelly A. Yasmeen Gay Sashi Ysamu Brown Olivier Detaffin Wei Gu Paul Thomas Kelly Elliot Shawn Kay Victoria A. Bruno Brent Allen Devere Alejandro Jose Thomas Patrick Kelly Sharon Mckenzie Jason William Bryan Jacques Dewerra Guadarrama Bernadette Marie Kenny Sawaka Nagano Amy Cathleen Buck Wade Dorann Dicosmo Adam J. Gunnerson Philip Gupta Kent Raju Sundaran Rob Roy Buckingham Chengfei Ding Ricardo Hacham Jenny L. Kervin Keith Will Wynne Elliott Matthew Buckner Keith Michael Donoghue Kelly Fitgerald Hagg Prince Fifi Kessie Jon A. Zepnick Emil Budilovsky Jane Abernethy Dorn Lucy Hebron Halatyn Mykhalo V. Kharenko Kerrie Louise Burmeister Matthew Cosmo Dorsi Sylvia Hall John Kheit OUT OF STATE Kevin L. Burns Dipu Ashvin Doshi Rochelle L. Haller Martha Virginia Kim Thomas Arthur Abbate Stacey Christina Burton David Richard Dratch Jeong Hee Han Seok Hwan Kim Anna Katrina Roca Julie Gail Bush Cara Hope Drinan Theresa R. Hanczor Cormac P. Kissane Abendano Christina Rose Busso Doug Dubitsky Joshua James Haringa Donald Allen Klein Shara Jill Abraham Pablo Esteban Bustos Ann Marie Dunn Elizabeth Brooke Harned Meltem Fazilet Kodaman David Ira Ackerman Alison Lynne Butler Anna Dymek Stoll Joerg-Andre Harnisch

Journal | May 2003 59 Nancy Rose Susan Timm Andrew Miller Rowena Pinto Rao Joseph G. Stancato Daniel Eric Vielleville Kramer Marcia Joan Mills Catherine L. Razzano Joseph D. Steinfield Marion Caroline Volondat Mark Alan Krasner Ozair S. Minty Frank Dennis Recine Elisa Joanne Stewart Arsineh Voskanian Wayne S. Kreger Anita Livia Mitra Gregory Steven Reich Elke M. Stoiber Uzma Wahhab William Owen Krekstein Charles K. Mone Gerard E. Reinhardt Robert William Stradtman Phil Neal Walker Christopher A. Kroblin Adam C. Morris Arnold E. Reiter Michele Straut Michael J. Walsh Kristy Ann Kulina Miriam Alexandra William Gregg Rice Kristine Elizabeth Stringer Cecillia Derphine Wang David R. Kuney Munzberg Michael Lee Rich Joel David Stroz Xinnan Wang Robin Harding Kyle Karleen F. Murphy Judith Olivia Riordan Walter B. Stuart Whitney L. Warnke Karen Denise Lacomba Jessica Leigh Murtagh Andrea Juanita Ritchie Alicia Sullivan Agnieszka Was Yasmine Lahlou Rika Nakajima Cristina Winter Ritchie Joseph M. Sullivan Matthew James Watkins Ori C. Landau Alberto Navarro Thomas John Roberts Melissa Ann Sullivan Sven Wehser Denise Lanuto Hal Harry Neeman Benjamin John Robins Patrick James Sullivan Richard Simon Weil Jacob Max Lebowitz Michael R. Nelson Lauren Bronwyn Bong-kyung Sung Mark Weinstein Ursula Anne Lecznar Fred Neufeld Rockerfeller Maryann Powell Surrick Joan Alster Weisblatt Kyong Choon Lee Juliana McCrory Newton Scott Michael Rodman Russell James Sweeting Jonathan Irving Weisstub Min Ho Lee Francoise Ng Dufaux Joanne Roman Robert Swensen Jason Charles Welch Victor Kwok Chuen Lee Paul Wei-han Ng Philip Lee Rothenberg Jaimie Hope Taff Brent Michael Westrop Fraser James Lees Bob Quang Tan Nguyen Martin Carl Rothfelder Christopher Stephen Taffe Eric J. Wexler Elizabeth Leise David Michael Noble Amy Marie Rottura Hovig Ohannes Tanajian Juliette L. White Michael Glen Leventhal Lisa Noja Jason Scott Rudnick Kathryn Elizabeth Joseph Patrick Whitlock Efrem Richard Levy Kanayo Ijeoma Kwang Hyun Ryoo Remsen Tang Charles William Whitney Jamie Brett Levy Nwachukwu Greg Richard Saber Gary Edward Taylor Philip Wild Melissa E. Liebermann Darina Frances O’Connor Mark Jason Sagat Malia Tee Matthew Anthony Wills Teri Ann Lindquist Haruhiko Ogasawara Valerie Anne Salsgiver Kathy Ann Tenney David Justin Wilson Kenneth Linn Young J. Oh Murray Sams James Joseph Theisen David Wallace Wilson Stephanie Evangelos Litos Masashi Oi Michael San Giacomo Andrew Peter Thomson Frank Moseley Wilson Kevin M. Littman Karen Lynn O’Keeffe Daniel Mark Santarsiero Sven Ulrich Timmberbeil Paul M. Winke Jun Liu Arthur Thomas O’Reilly Rosella Santilli Stephen George Andrew Scott Winters Nicolas Lloreda Shannon O’Reilly Vafa Sarmasti Tomlinson Krista L. Witanowski Joseph James Lo Bue Gregory Chukwuemeka Paul Theodore Saulski Patrick A. Toomey William Peter Wittig Laura Kathryne Love Osakwe Eraklis Savas Luis Francisco Torres Gary Wickert Wolf Steven L. Lubell Joel Thomas Outlaw Jeffrey Stephen Escobar Gonzalez Matthew Wolf Cristian Oliver Lucas-mas Maravillas Oviedo Sculley Michael Kane Travers Matthew Maurice Wolf Melissa Hambrick Luce Pablo A. Palazzi Rochelle Sendar Barbara Wolfson Bennett Ka-ying Wong Hong Ky Luu Beth Rebecca Palmer Paul Neil Lionel Parris Tuerkheimer Vivian Wong Patrick Kevin Lyons Carla Nicole Palumbo Sexton Malcolm K. Turner La Juan Amergene Wright Gregory Richard Macek Anshul A. Pandya Simon Jay Shaffer James E. Tyner Valerie Ann Wright David Joseph Mairo Jennifer Lise Parkinson Purvi Patel Shah Stephanie Oke Ubogu Sungjoo Yoon Richard James Maloney Elieka Kate Patchen Jeffrey David Shalom Rebecca L. Ulisse Dong-wuk Yuk Stephen Carl Maloney David Aaron Paul Kenneth E. Sharperson Oleg B. Uritsky Edward M. Yures Sigal Pearl Mandelker David Robert Peck Ji Sun Shin Nkem T. Uzoka Artur Sylvester Jack A. Maniko Angelo Charles Peruto Jong Eun Shin Elizabeth Anne Zawadowski Maria Corazon Maramag Danielle Anne Phillip Michael W. Shiver Valandingham Daniel P. Zazzali Melissa Rose Martin Bonnie Pierson-Murphy Hoon Sung Shon Jason Paul Van Lenten Jennifer Ann Zepralka Luis Guarionex Martinez Elizabeth Pietrowski Sadaf Siddiqui-Shakir Leticia Castillo Vasquez Hongjun Zhang Maria Clarissa Rustia Karl Frederic Piirimae Amanda L. Siek Deborah Alexandra Li Zhang Martinez Steven Edward Pilling Andre Sigelmann Vennos Dennis Ziemba Junko Masumi Kenneth James Pippin Justin Adam Silverman Helena Helga Johanna Thomas Dal Stenfeldt Paul David Anthony Kwan Kiat Sim Verhagen Mathiasen Piquado Delphine Fabienne Simon Jeffrey Francis Mauer Davide Francesco Pisanu Robert P. Simons Susannah Jeannette May Rebecca Thacher Gavin Scott Ewan Sinclair Ian Norman McCallister Plummer Jonathan Craig Skolnick Gina Carol McCool John Andrew Poakeart Brian Christopher Smith In Memoriam Doreen Marie Astrid Pockrandt Glen Patrick Smith McCullough Scott Jeremy Pohl Mollie Megan Smith Herbert H. Blumberg William A. Glass Michael James McElligott Peter Mathias Polke Warren Smith East Amherst, NY Port Jervis, NY Julie Elizabeth Mcguire Susanne Louise Jamila Deas Smoot Howard C. Buschman John P. Kennedy Keith Ryan Mcmurdy Pollatschek Kristin Marie Smrtic New York, NY Palm Harbor, FL Luis Ignacio Mendoza Irene Popovic Sanjit Singh Sodhi Jennifer Lee Merzon Zachary Rian Potter Jiaolin Song Ruben A. Dankoff Joel B. Miller Randi Aileen Meth Fabrizio Maria Prandi Lisa Soo Tenafly, NJ New York, NY Joseph Walter Mik Edward Previte Lisa Siew Lee Soo James P. Doody Gilbert H. Weil Nicole Mikulas Mallika Prinja William N. Specht Scarsdale, NY Scottsdale, AZ Michael Richard Mildner Victoria Christi Priola Jennifer Alison Speigel Bonnie Eisenstat Glenn Dana Miller Zahid Nisar Quraishi C.R. Srivatsan Rockville Centre, NY Sarah Anne Miller Mark Deeds Rambler Michael Joseph Stack

60 Journal | May 2003 THE LEGAL WRITER • Days (“Monday”) and months Foreign words. “The doctrine of Stare CONTINUED FROM PAGE 64 (“March”) but not seasons (“fall back, Decisis applies.” Becomes: “The doc- lowed in many legal publications, spring forward”). trine of stare decisis applies.” many magazines and the popular • Forms: “On April 15, the million- Applications, orders, papers, and mo- press use a three-or-fewer rule.) aire Park Avenue partner filed a Form tions. “Defense counsel served an Ap- • Personifications: “Beauty is 1040-EZ.” plication to Set Aside the Verdict.” Be- Truth.” • Litigants’ designations. Under the comes: “Defense counsel served an • Nouns, adjectives, particles, and Tanbook, “plaintiff,” “defendant,” “pe- application to set aside the verdict.” Or prefixes in hyphenated compounds. titioner,” “appellant,” “respondent,” “Defense counsel served an application Correct: “The Pre-Columbian Art and like titles are lowercased and are to set the verdict aside.” “Respondent Show.” But don’t capitalize after a hy- not preceded by the article “the.” filed an Order to Show Cause.” Be- phen in hyphenated single words: Under the far-more-pervasive Blue- comes: “Respondent filed an order to “His address is 155 West Eighty-sixth book, however, these titles are capital- show cause.” “Appellant submitted his Street.” ized when referring to a specific liti- Opening Brief.” Becomes: “Appellant submitted his opening brief.” “Peti- • The first letter in a quotation, if gant, and when so referring, they tioner made a Motion to Reargue.” Be- the first letter is capitalized in the orig- aren’t preceded by an article. Bluebook comes: “Petitioner made a motion to inal and if the quotation is an indepen- correct: “The court sentenced Defen- reargue.” Or, better, “Petitioner moved dent clause. Correct: The judge wrote, dant to jail.” Bluebook correct: “The Jones to reargue.” “The appearance of propriety is as im- court found that a defendant who tes- portant as propriety itself.” Correct: tifies should do so from the witness Some writers capitalize words to “The appearance of propriety,” the stand.” show irony or sarcasm. Justice Antonin judge wrote, “is as important as pro- Do not capitalize: Scalia: “[I]n the Land of the Free, de- priety itself.” Correct: The judge wrote • The names of statutes and rules mocratically adopted laws are not that exist today only as legal doctrines: so easily impeached by unelected that an “appearance of propriety is as 2 important as propriety itself.” “statute of frauds,” “statute of limita- judges.” That device stresses the words, but overuse dulls their effect. • The names of organizations, insti- tions,” “rule against perpetuities.” Other writers capitalize entire pas- tutions, ships, and buildings. • Titular appositives: “Convicted sages. That device, common in point • States and political subdivisions: Terrorist Timothy McVeigh was exe- headings in briefs, makes briefs hard to “State of New York.” Capitalize “state” cuted.” Becomes: “Convicted terrorist read. or “city” only when the entity it modi- Timothy McVeigh was executed.” Gar- The trend for legal writers (Writers) fies is capitalized, when the state or ner calls this journalistic practice “titu- 1 is to capitalize sparingly – to capitalize city is a litigant, or when the state or lar tomfoolery.” only when a rule requires a capital. In city acts in its governmental capacity. • The “the” before a capital: “He short, downsizing isn’t just for the ver- • “Government,” but only when writes for the New York Law Journal.” tically challenged. It’s for Readers and using as a short-hand reference for Not: “He writes for The New York Law Writers who know the difference be- United States Government. In criminal Journal.” But here’s a helpful aid: The tween “capital” and “Capitol.” cases in New York, the prosecution is first legal-aid society in the United called “the People.” States is the organization in New York City. To distinguish that society from GERALD LEBOVITS is a judge of the New • “Federal,” but only modifying a York City Civil Court, Housing Part, others, call it “The Legal Aid Society,” capitalized word. Correct: “Federal Re- in Manhattan. An adjunct professor at serve.” Correct: “The Government pro- with a capital “T.” New York Law School, he has written mulgated the federal budget.” • Proceedings (unless they are Advanced Judicial Opinion Writing, a • Brand names, trademarks, and named after a case), legal words, for- handbook for New York’s trial and artistic works. eign words, or applications, orders, pa- appellate courts, from which this col- • Botanical and zoological names if pers, or motions. umn is adapted. His e-mail address is not in English. Capitalize the genus Proceeding. “The court held a Sup- [email protected]. but not the species: “Hyacinthus orien- pression Hearing.” Becomes: “The court 1. Bryan A. Garner, The Oxford Dictio- talis” (but “hyacinth”), “Giraffa held a suppression hearing.” But: “The nary of American Usage and Style 7 camelopardalis” (but “giraffe”). court held a combined Mapp, Huntley, (2000). • The first letter of a word follow- and Wade hearing.” 2. Bd. of Educ. of Kiryas Joel Vill. Sch. Legal words. “Plaintiff has the Bur- Dist. v. Grumet, 512 U.S. 687, 737 ing a colon if what follows the colon is (1994) (Scalia, J., dissenting). an independent clause, but not if what den of Proof.” Becomes: “Plaintiff has follows the colon is a dependant the burden of proof.” clause.

Journal | May 2003 61 Jean E. Nelson II, Associate Director, Lawyer Assistance Program [email protected] Ray M. Lopez, Director, HEADQUARTERS Jean Marie Grout, Staff Attorney, [email protected] [email protected] Management Information Systems STAFF Leslie A. Fattorusso, Staff Attorney, John M. Nicoletta, Director, [email protected] [email protected] E-MAIL ADDRESSES Cheryl L. Wallingford, Program Manager, Ajay Vohra, Technical Support Manager, [email protected] [email protected] Daniel J. McMahon, Assistant Director, Paul Wos, Data Systems and Telecommunications Publications, [email protected] Manager, [email protected] Executive Staff Patricia B. Stockli, Research Attorney, Margo J. Gunnarsson, Database Services Patricia K. Bucklin, Executive Director, [email protected] Administrator, [email protected] [email protected] Governmental Relations Marketing John A. Williamson, Jr., Associate Executive Ronald F. Kennedy, Assistant Director, Richard Martin, Director, Director, [email protected] [email protected] [email protected] L. Beth Krueger, Director of Administrative Graphic Arts Media Services and Public Affairs Services, [email protected] Roger Buchanan, Manager, Bradley G. Carr, Director, Kathleen R. Baxter, Counsel, [email protected] [email protected] [email protected] William B. Faccioli, Production Manager, Frank J. Ciervo, Associate Director, Lisa Bataille, Administrative Liaison, [email protected] [email protected] [email protected] Human Resources Amy Travison Jasiewicz, Editor, State Bar News, Kathleen M. Heider, Director of Meetings, Paula Doyle, Director, [email protected] [email protected] [email protected] Membership Barbara Beauchamp, Web Site Content Editor Law Practice Management Patricia K. Wood, Director, [email protected] Stephen P. Gallagher, Director, [email protected] Accounting [email protected] Pro Bono Affairs Kristin M. O’Brien, Director of Finance, Law, Youth and Citizenship Program Cynthia Feathers, Director, [email protected] Deborah S. Shayo, Director, [email protected] Anthony M. Moscatiello, Controller, [email protected] [email protected] Emil Zullo, Assistant Director, Continuing Legal Education [email protected] Terry J. Brooks, Director, [email protected]

THE NEW YORK JOURNAL BOARD BAR FOUNDATION MEMBERS EMERITI

s a tribute to their outstanding service to Aour Journal, we list here the names of 2002-2003 OFFICERS DIRECTORS each living editor emeritus of our Journal’s Board. Richard J. Bartlett James B. Ayers, Albany President Richard J. Bartlett John P. Bracken, Islandia Coleman Burke 1 Washington Street Cristine Cioffi, Niskayuna P.O. Box 2168 John C. Clark, III Angelo T. Cometa, New York City Glens Falls, NY 12801-2963 Angelo T. Cometa Maryann Saccomando Freedman, Buffalo Roger C. Cramton Robert L. Haig Emlyn I. Griffith, Rome Maryann Saccomando Freedman Vice President Emlyn I. Griffith 101 Park Avenue John H. Gross, Northport H. Glen Hall New York, NY 10178-0001 Paul Michael Hassett, Buffalo John R. Horan, New York City Paul S. Hoffman Patricia K. Bucklin Charles F. Krause Bernice K. Leber, New York City Secretary Philip H. Magner, Jr. Susan B. Lindenauer, New York City One Elk Street Wallace J. McDonald Albany, NY 12207 Kay C. Murray, New York City J. Edward Meyer, III Hon. Randolph F. Treece Robert L. Ostertag, Poughkeepsie Kenneth P. Nolan Treasurer Thomas O. Rice, Garden City Albert M. Rosenblatt 375 State Street M. Catherine Richardson, Syracuse Robert J. Smith Albany, NY 12210 Lawrence E. Walsh

62 Journal | May 2003 Members of the House of Delegates 2002-2003 First District Third District * Freedman, Maryann Saccomando Alcott, Mark H. Ayers, James B. Gerstman, Sharon Stern OFFICERS Baker, Theresa J. Bauman, Harold J. Graber, Garry M. Barasch, Sheldon † Butler, Tyrone T. Guiney, Daniel J. Berkowitz, Philip M. Carreras, Marilyn T. †* Hassett, Paul Michael † Bing, Hon. Jonathan L. Defio, Elena M.R. McCarthy, Joseph V. Bresler, Judith A. Flink, Edward B. Newman, Stephen M. Brown, Lloyd W., II Friedman, Michael P. O’Connor, Edward J. Capell, Philip J. Higgins, Patrick J. O’Mara, Timothy M. Lorraine Power Tharp, President Chambers, Hon. Cheryl E. Katzman, Gerald H. Palmer, Thomas A. Albany Christian, Catherine A. Kelly, Matthew J. Pfalzgraf, David R. * Cometa, Angelo T. King, Barbara J. Sconiers, Hon. Rose H. A. Thomas Levin, President-Elect Crane, Hon. Stephen G. LaFave, Cynthia S. Seitz, Raymond H. Cundiff, Victoria A. Leistensnider, Ruth E. Mineola Cuyler, Renaye B. Maney, Hon. Gerard E. Ninth District Kenneth G. Standard, Treasurer Eisman, Clyde J. Miranda, David P. Aydelott, Judith A. Eppler, Klaus Ricks, Wendy S. Bartlett, Mayo G. New York Farrell, Joseph H. † Tharp, Lorraine Power Fedorchak, James M. Finerty, Hon. Margaret J. Treece, Hon. Randolph F. Geoghegan, John A. A. Vincent Buzard, Secretary Fink, Rosalind S. * Williams, David S. Goldenberg, Ira S. Rochester * Forger, Alexander D. * Yanas, John J. Herold, Hon. J. Radley Freedman, Hon. Helen E. Ingrassia, John Gerrard, Michael B. Fourth District Johnson, Martin T. * Gillespie, S. Hazard Bartlett, Hon. Richard J. Klein, David M. Goldstein, M. Robert Cioffi, Cristine Kranis, Michael D. Gross, Marjorie E. Coffey, Peter V. Longo, Joseph F. Gutekunst, Claire P. FitzGerald, Peter D. Manley, Mary Ellen Haig, Robert L. Heggen, Karen Ann * Miller, Henry G. Handlin, Joseph J. Hoye, Hon. Polly A. Mosenson, Steven H. Vice-Presidents Harris, John B. Keniry, Hon. William H. O’Leary, Diane M. First District Harris, Martha W. McAuliffe, J. Gerard, Jr. * Ostertag, Robert L. * Heming, Charles E. Rodriguez, Stephen T. Plotsky, Glen A. Mark H. Alcott, New York Hoffman, Stephen D. Riley, James K. Stephen D. Hoffman, New York Jacobs, Robert A. Fifth District Standard, Kenneth G. Second District Jacobs, Sue C. Alessio, George Paul Sweeny, Hon. John W., Jr. Jacoby, David E. Alsante, Cora A. Walker, Hon. Sam D. Edward S. Reich, Brooklyn Jaffe, Hon. Barbara Amoroso, Gregory J. Third District Kilsch, Gunther H. Doerr, Donald C. Tenth District James B. Ayers, Albany * King, Henry L. Dwyer, James F. Asarch, Hon. Joel K. Kougasian, Peter M. Fennell, Timothy J. * Bracken, John P. Fourth District †* Krane, Steven C. Fetter, Jeffrey M. Corcoran, Robert W. Peter D. FitzGerald, Glens Falls Landy, Craig A. Getnick, Michael E. Filiberto, Hon. Patricia M. Fifth District Leber, Bernice K. Hayes, David M. Fishberg, Gerard Lee, Charlotte C. Kogut, Barry R. Franchina, Emily F. James F. Dwyer, Syracuse Levy, M. Barry Michaels, Joanne E. Fredrich, Dolores Sixth District Lieberman, Ellen Peterson, Margaret Murphy Futter, Jeffrey L. Kathryn Grant Madigan, Binghamton Lindenauer, Susan B. Priore, Nicholas S. Gross, John H. * MacCrate, Robert Renzi, David A. Karson, Scott M. Seventh District Mandell, Andrew †* Richardson, M. Catherine Kramer, Lynne A. C. Bruce Lawrence, Rochester Miller, Michael Rizzo, James S. Lerose, Douglas J. Eighth District Miller, Sonia E. Seiter, Norman W., Jr. † Levin, A. Thomas Milonas, Hon. E. Leo Uebelhoer, Gail Nackley Levy, Peter H. Joseph V. McCarthy, Buffalo Minkowitz, Martin Meng, M. Kathryn Ninth District Mitzner, Melvyn Sixth District Monahan, Robert A. Joseph F. Longo, White Plains Opotowsky, Barbara Berger Beehm, Angelina Cutrona Perlman, Irving Tenth District * Patterson, Hon. Robert P., Jr. Gacioch, James C. * Pruzansky, Joshua M. Paul, Gerald G. Kirkwood, Porter L. Purcell, A. Craig A. Craig Purcell, Hauppauge Quattlebaum, Poppy B. Lewis, Richard C. †* Rice, Thomas O. Eleventh District Rayhill, James W. Madigan, Kathryn Grant Tully, Rosemarie Gary M. Darche, Queens Reimer, Norman L. Mayer, Rosanne Walsh, Owen B. Reitzfeld, Alan D. Tyler, David A. Twelfth District Richardson-Thomas, Edwina Walsh, Ronald, Jr. Eleventh District Lawrence R. Bailey, Jr., New York Rifkin, Richard Wayland-Smith, Tina Darche, Gary M. Robertson, Edwin D. Dietz, John R. Rosner, Seth Seventh District Fedrizzi, Linda F. Rubenstein, Joshua S. Buzard, A. Vincent James, Seymour W., Jr. Russo, Salvatore J. Castellano, June M. Nashak, George J., Jr. Members-at-Large of the Safer, Jay G. Clifford, Eugene T. Nizin, Leslie S. Schumacher, H. Richard Cristo, Louis B. Terranova, Arthur N. Executive Committee * Seymour, Whitney North, Jr. Dwyer, Michael C. Wimpfheimer, Steven Sherwin, Peter J.W. Grossman, James S. Michael E. Getnick Silkenat, James R. Harren, Michael T. Twelfth District Matthew J. Kelly Sloan, Pamela M. Hartman, James M. Bailey, Lawrence R., Jr. Gunther J. Kilsch Stenson, Lisa M. Lawrence, C. Bruce Friedberg, Alan B. Bernice K. Leber Torrent, Damaris E. †* Moore, James C. Horowitz, Richard M. Wales, H. Elliot * Palermo, Anthony R. Millon, Steven E. Susan B. Lindenauer Reynolds, J. Thomas †* Pfeifer, Maxwell S. David R. Pfalzgraf Second District Schraver, David M. Summer, Robert S. Cerchione, Gregory T. Tyo, John E. Weinberger, Richard Dollard, James A. * Van Graafeiland, Hon. Ellsworth Fisher, Andrew S. * Vigdor, Justin L. Out-of-State Golinski, Paul A. †* Witmer, G. Robert, Jr. * Fales, Haliburton, 2d Hesterberg, Gregory X. Peskoe, Michael P. Kamins, Barry Eighth District * Walsh, Lawrence E. † Delegate to American Bar Association House of Delegates Morse, Andrea S. Doyle, Vincent E., III * Past President Reich, Edward S. Edmunds, David L., Jr. Romero, Manuel A. Evans, Sue M. Sunshine, Hon. Jeffrey S. Flaherty, Michael J. Sunshine, Nancy T.

Journal | May 2003 63 Uppercasing THE LEGAL WRITER Needn’t Be a Capital Crime

BY GERALD LEBOVITS apitalizing correctly is a Capital • Titles that precede proper names: • Languages, religions, nationali- Investment. Capitalizing incor- “Senior Associate Judge George Bundy ties, countries, and races (African– Crectly is a Capital Offense. Here Smith.” Titles that go after a name are American, Caucasian) but not colors are some rules for you (hereinafter re- lowercased. Correct: “Jack Mozzarella (black, white). ferred to as the “Reader”) to make is the president of the New York • School courses but not academic your uppercasing upperclass. Cheese Company.” “Mother Theresa.” disciplines unless the discipline is it- Capitalize: But: “Theresa was a mother superior.” self a proper noun. Correct: “I took Psy- • The first letter in the first word “The Reverend Dr. Martin Luther King chology 101 because I majored in psy- of a sentence. Symbols and figures at Jr.” But: “Dr. Martin Luther King Jr. chology.” But: “I took English 201 the beginning of a sentence must be was a reverend.” because English is my favorite sub- converted to words. Correct: “Section Similarly, lowercase titles that do ject.” (not §) 1981 action.” not precede a name unless the title is Lawyers love being • Titles of acts, ordinances, rules, “President of the United States” or regulations, and popular names of acts “Justice of the United States Supreme deferential. You can’t (“Dead Person’s Statute”) and consti- Court.” According to the New York Law stop ’em from using tutional clauses and amendments Reports Style Manual (Tanbook), capital- capital “c” in “court.” (“Equal Protection Clause”). Capitalize ize the “j” in “judge” or “justice” only “Constitution” but not “constitu- when referring to a “Judge of the New • Titles of relatives not preceded by tional.” Lowercase words like “act” York State Court of Appeals” or a “Jus- a possessive: “It is as American as and “statute” when they stand alone, tice of the Appellate Division” or as a Mother’s eating apple pie.” But: “It is unless you are using “Act” as a short- short-form reference (“Justice Jones as American as my mother’s eating hand second reference to previously wrote the opinion. The Justice rea- apple pie.” “My, Grandma, what big identified legislation (or any other soned that . . . .”). General references to eyes you have!” But: “My grandma has term or phrase) or turn it into an all- judges or judicial officers are lower- big eyes.” capitalized acronym. Correct: “The cased. Correct: “Irving Younger was a • Historical events, eras, and docu- Wagner Act (Act). The Act provides . . New York City Civil Court judge.” ments: “World War II,” “the Dark . .” Correct: “The Environmental Pro- • Courts and their parts: “County Ages,” “Magna Carta.” tection Agency (EPA) has issued new Court,” “Housing Part.” General refer- • Compass points, but only when regulations.” ences to “the court,” “this court,” or identifying a specific area, not when • The first letter in the first word of “courts” are lowercased unless refer- referring to a direction. “Grits is popu- a direct question in a sentence. ring to the U.S. Supreme Court or, lar in the South.” But: “The cold front • The first letter in the first word of under the Tanbook, to the New York in New York came from the north, a line of verse, unless the first letter is Court of Appeals or the Appellate Di- from Canada, in a southerly direction.” lowercased in the original. vision of the New York Supreme • Words in titles of works. Don’t • The first letter in the first word of Court. Thus, lowercase “trial court” capitalize articles and conjunctions or a salutation and the complimentary and “lower court.” But lawyers love prepositions that have four or fewer close of a letter: “Respectfully Yours being deferential. You can’t stop ’em letters. But capitalize the title’s first (or Submitted)” becomes “Respect- from using capital “c” in “court.” They and last word and the first word after fully yours (or submitted).” even capitalize the “y” and “h” in the a colon or an em dash, or the first word • Proper names: “Canadians,” “Air middle of a sentence when they write in a multideck title, even if the word is Force Two,” “Exxon Corporation,” “Your Honor.” a preposition, an article, or a conjunc- “Humphrey Bogart.” • The pronoun “I.” tion. Correct: Demetra M. Pappas, Stop- • Words derived from proper • All references to God: “the ping New Yorkers’ Stalkers: An Anti- names (proper adjectives): “New Supreme being,” “the Creator,” “the Stalking Law for the Millennium, 27 Yorker,” “Orwellian.” But capitalize Sovereign,” “the Lord,” “Him,” “He,” Fordham Urb. L.J. 945 (2000). (Al- only the adjective in a proper adjective: “His Name,” “Her,” “She,” “Her though the four-or-fewer rule is fol- “Spanish-speaking residents.” Name.” CONTINUED ON PAGE 61

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