NEW YORK STATE BAR ASSOCIATION JournalJournalOCTOBER 2003 | VOL. 75 | NO. 8 Inside Complex Litigation Rules Third Party Coverage Rules Ethnic Profiling Cases No-Fault Insurance Abuses BOARD OF EDITORS ONTENTS Howard F. Angione C Editor-in-Chief Queens e-mail: [email protected] Medicolegal Aspects of Whiplash Injury – Rose Mary Bailly A Primer for Attorneys Albany Anthony V. D’Antoni, D.C., M.S. 10 Willard H. DaSilva Garden City New York Adopts Procedures for Statewide Louis P. DiLorenzo Coordination of Complex Litigation Syracuse Mark Herrmann and Geoffrey J. Ritts Philip H. Dixon 20 Albany Lesley Friedman Rosenthal Third Parties Can Have Rights to Property Insurance New York City Proceeds in Specific Circumstances Judith S. Kaye Mark Ian Binsky 24 New York City John B. Nesbitt State and Federal Standards Require Proof of Lyons Discriminatory Intent in Ethnic Profiling Claims Eugene E. Peckham J. Michael McGuinness Binghamton 29 Sanford J. Schlesinger New York City Take the Money and Run: The Fraud Crisis Richard N. Winfield In New York’s No-Fault System New York City Robert A. Stern 35 Eugene C. Gerhart Editor Emeritus Binghamton D EPARTMENTS Daniel J. McMahon Managing Editor President’s Message _______________ 5 Index to Advertisers _______________ 48 Albany Crossword Puzzle _________________ 8 Classified Notices _________________ 48 e-mail: [email protected] by J. David Eldridge Sustaining Members _______________ 52 Philip C. Weis Eulogy — Charles E. Heming ______ 42 New Members Welcomed __________ 56 Associate Editor Attorney Professionalism Forum ____ 44 2003-2004 Officers _________________ 63 Oceanside Point of View _____________________ 46 The Legal Writer __________________ 64 EDITORIAL OFFICES by Gregg L. Weiner by Gerald Lebovits One Elk Street Albany, NY 12207 (518) 463-3200 Special Pull-out Section: FAX (518) 463-8844 Annual Report to the Membership ADVERTISING REPRESENTATIVE This year’s report describes the Association’s expanded initiatives to advance Network Publications its legislative action, access to the legal process, public communications, and di- Sheri Fuller versity and opportunity in the profession. Executive Plaza 1, Suite 900 11350 McCormick Road Hunt Valley, MD 21031 O N T HE C OVER (410) 584-1960 e-mail: [email protected] This cover illustration for this issue displays a montage of illustrations from the article on the medicolegal aspects of whiplash injuries. ON THE WORLD WIDE WEB: 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. 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Journal | October 2003 3 If you can’t get rid of the skeleton in your the panels would review the qualifi- closet, you’d best teach it to dance. cations of persons who wish to run George Bernard Shaw (1856–1950) PRESIDENT’S for judicial office, and thereafter only those who are found well-qualified When choosing between two evils, I al- MESSAGE ways like to try the one I’ve never tried would be eligible for nomination to before. Mae West (1892–1980) run in the election. Clearly, imple- menting this concept would require I don’t make jokes. I just watch the statutory amendment, if not constitu- government and report the facts. tional change, and I will leave to oth- Will Rogers (1879–1935) ers to prognosticate on the likelihood his past month, I testified at the of either. first hearing of the Commission Within the past several months, Tto Promote Public Confidence the Fund for Modern Courts, which in Judicial Elections. Unfortunately, has also long been a supporter of the that body is operating under restric- merit selection process, expressed the tions about the issues under consid- view that the constitutional and leg- eration, and it is unable to hear com- islative changes necessary to imple- ments which go to the heart of the ment that process were not likely in issue. Instead, it is starting with the the foreseeable future. Instead, Mod- premise that judicial elections will ern Courts is operating on the as- continue, and it is trying to find ways sumption that the elective process to make the public more confident in will be with us for some time to that process. come, and it is proposing that we im- The members of the Commission prove that process by instituting a are dedicated, hard-working people, A. THOMAS LEVIN merit qualification process to deter- who are sincerely trying to fulfill mine who will be eligible to run for their mandate. They are holding Skeleton Dance judicial office in those elections. hearings in different locations After my testimony and that of around the state, and they are expected to issue a report several others, I left the hearings with in early 2004. Based on the testimony during the time I the uneasy sense that this was not the way to make was present, the Commission is going to focus on progress. It was some time afterward that I was able to changes in the process by which candidates for judicial identify why I felt that way, because so many knowl- election are selected, improvements in the process of in- edgeable people had testified, and so many ideas and forming the public about the various candidates for ju- statistics had been bruited about, in discussions about dicial office. Other subjects that received substantial at- how to change the way judicial elections are conducted. tention were the public financing of judicial elections In the end, I concluded that while all of these sugges- and holding judicial elections on a non-partisan basis. tions are well-meaning and thoughtful, none of them re- ally comes to grips with the real issues. In my remarks, I adhered to the Commission’s ad- monition that it would not hear testimony regarding al- What is the goal the Commission seeks to fulfill? Ac- ternative methods for selecting judges. Nevertheless, I cording to its title, it is to foster public trust and confi- did observe that the State Bar Association has long been dence in the state’s elected judges, and in the process by on record in support of a merit selection process for se- which they are elected. Inherent in this focus is the as- sumption that the public’s trust and confidence in lection of judges. Having made that point, I moved on elected judges, and judicial elections, is either dimin- to the issues that the Commission did want to hear ished or needs to be bolstered. about. If the comments I have been receiving about our ju- My testimony focused on the screening process that dicial system are any indication, there is little doubt that is part of the NYSBA merit selection proposal, and on the public’s trust and confidence in the judicial system whether it could be adapted to the election process. are diminishing. This is truly regrettable, because the NYSBA’s recommendations for merit selection include functioning of a judiciary that is considered fair and im- the establishment of merit selection panels, composed of partial is at the heart of the American legal system. outstanding members of the Bar and distinguished pub- lic representatives, that would generate a list of well- A. THOMAS LEVIN can be reached at Meyer Suozzi English qualified candidates for appointment to the bench. If & Klein, PC, 1505 Kellum Place, Mineola, N.Y. 11501, or this approach were to be applied to the elective system, by e-mail at [email protected]. Journal | October 2003 5 PRESIDENT’S MESSAGE the function and independence of the third branch, and What is causing this public attitude? After consider- more legislation and administrative directives that fur- able thought, I submit that it is not the details of the ther infringe on the ability of the courts to perform their process by which judges are elected, rather it is the adjudicative functions. In the long run, the integrity of process itself. This should in no way be taken as criti- the judicial branch may be at stake. cism of the many fine judges who serve on the bench It is my sense that the public’s distrust of the judi- after having been elected to their positions. Those of us ciary and the judicial process is based on the belief that who practice in the courts know the quality of our the judicial election process is riddled with politics, and elected judiciary. money. This belief supports the common public percep- The public perception, however, derives from other tion that judicial candidates are hand-picked by political sources. Sometimes it is personal experience in the leaders as a form of patronage, and that those who are courts, either as a litigant, witness or juror. More often political sponsors of, or contribute money to, judicial than not, it is from the media, either due to the tendency candidates expect to, and do, receive favored treatment.