JULY/AUGUST 2009 VOL. 81 | NO. 6 JournalNEW YORK STATE BAR ASSOCIATION The Caines Identities The Faces of America’s First Also in this Issue Official Reporter An Insider Revisits Disney by Gary D. Spivey Arbitrating Commercial Issues: Do You Really Know the Out-of-Pocket Costs? The New York City Civil Rights Restoration Act Grows Teeth 866-FUNDS- NOW Pre-Settlement Finance BESTSELLERS FROM THE NYSBA BOOKSTORE July/August 2009 Construction Site Personal Injury New York State Physician’s NEW! Litigation — New York Labor Law HIPAA Privacy Manual FFormsorms §§ 200, 240(1), 241(6) (2008 Revision) A hands-on tool for health care providers oonn CCDD The Practice of Criminal Law under the CPLR and Related Civil Procedure Perhaps no single scheme of statutory causes of action and their legal counsel, this publication Statutes, Fifth Edition has initiated more debate. This text provides a road provides guidance for a physician’s office to respond to routine, everyday inquiries A book that pulls together the rules and provi- map through this at-times confusing area of law. about protected health information. sions of law not covered in NY’s CPL or Penal Law. Includes a summary of key case developments. PN: 4167 / Member $75 / List $95 / 288 pages PN: 40698 / Member $45 / List $55 / 206 pages PN: 4047 / Member $80 / List $110 / 480 pages Practitioner’s Handbook for Medical Malpractice in New York, Debt Collection and the Enforcement Appeals to the Court of Appeals, Third Edition of Money Judgments, Second Edition This book provides advanced insight into many Third Edition aspects of the trial of a medical malpractice case. (2008) This new edition updates topics on taking and PN: 41309 / Member $95 / List $125 / 654 pages Monetary awards determined in court cases involve perfecting criminal and civil appeals, alternative an array of procedures that attorneys must know. The procedures for selected appeals, and how to write new second edition, under the editorship of Paul A. New York Lawyer’s Deskbook, and present the appeal. Second Edition (2008–2009) Peters, not only updates case and statutory law but also PN: 4017 / Member $48 / List $57 / 234 pages addresses new issues within this field, providing in-depth WINNER OF THE ABA’S CONSTABAR AWARD topical analyses. Public Sector Labor and The Second Edition consists of 27 chapters, each PN: 40308 / Member $125 / List $170 / 548 pages covering a different area of practice that provides Employment Law, Third Edition (2008) advice within that particular area of law. Entertainment Litigation It’s the leading reference on public sector labor and PN: 4150 / Member $250 / List $325 / 2,490 pages employment law in New York State. Everyone will This reference covers the fundamental issues that are benefit from its comprehensive coverage, whether New York Lawyer’s Formbook, central to a creative artist’s career. It is a basic, practi- they represent employees, unions or management. cal guide that gives creative artists and their represen- Second Edition (2008–2009) Practitioners new to the field, as well as seasoned The Formbook is a companion volume to the tatives insight as to how to avoid the courtroom. attorneys, will benefit from the book’s clear, well- New York Lawyer’s Deskbook and includes 21 PN: 4087 / Member $35 / List $55 / 230 pages organized coverage of what can be a very complex sections, each covering a different area of practice. area of law. PN: 4155 / Member $250 / List $325 / 3,256 pages Impasse Resolution (2008) PN: 42057 / Member $150 / List $185 / 1,568 pages This publication provides both an overview and New York Residential Landlord-Tenant in-depth discussion of the impasse resolution proce- Real Estate Titles, Third Edition Law and Procedure (2008–2009) dures under the Public Employees Fair Employment An all-time bestseller, this edition is edited by James M. New York residential landlord-tenant law is Act, commonly known as the Taylor Law. Pedowitz, Esq., a nationally renowned expert in real daunting to newcomers and the experienced alike. PN: 4122 / Member $30 / List $40 / 124 pages estate law and title insurance, and authored by some This monograph introduces the fundamentals of of the most distinguished practitioners in the field. It’s residential landlord-ten ant law and offers a guide Legal Careers in New York State an essential guide to the many complex subjects sur- to the procedural mechanics practitioners face in Government, Ninth Edition (2008) rounding real estate law. landlord-tenant disputes. PN: 4169 / Member $72 / List $80 / 108 pages For law students and lawyers considering careers PN: 521007 / Member $150 / List $180 / 1,632 pages and/or work experiences in public service with the The Plaintiff’s Personal Injury Action State of New York, this expanded edition includes Representing People with Disabilities, in New York State (2009) comprehen sive information on employment Third Edition This treatise answers the tough questions faced by opportunities with the various levels of state A comprehensive reference that covers the myriad the plaintiff’s personal injury attorney every day – government. legal concerns of people with disabilities, it is the liens, special needs trusts, structures, Medicare and PN: 41298 / Member $30 / List $50 / 264 pages ideal reference for those who want a “one-stop” Medicaid, conflicts of interest, workers’ compensa- source for a thorough overview of the legal frame- tion, no-fault, bankruptcy, representing a party in Model Partnership Agreements (2009) work affecting individuals with disabilities. infancy, incompetency and wrongful death. Here is a guide for solo and small-firm practitioners PN: 42158 / Member $160 / List $200 / 1,588 pages PN: 4181 / Member $175 / List $225 / 1,734 pages who wish to establish a partnership or other business form, or to formalize relationships in a law practice NYSBA Practice Forms on Foundation Evidence, Questions and that has no formal structure. CD-ROM—2008–2009 FFormsorms Courtroom Protocols, Second Edition PN: 41358 / Member $50 / List $60 / 142 pages The second edition, along with its collection of Access nearly 800 forms for use in oonn CCDD forms and protocols, has four new chapters: Pro Se daily practice. Defendants, Courtroom Closure, Burdens of Proof PN: 61509 / Member $280 / List $315 and Summations. PN: 41078 / Member $50 / List $60 / 172 pages Expand your professional knowledge 1.800.582.2452 www.nysba.org/pubs Mention Code: PUB0535 Free shipping and handling within the continental U.S. The cost for shipping and handling outside the continental U.S. will be added to your order. Prices do not include applicable sales tax. NEW YORK STATE BAR ASSOCIATION JournalNEW YORK STATE BAR ASSOCIATION BOARD OF EDITORS EDITOR-IN-CHIEF David C. Wilkes Annual Meeting Tarrytown e-mail: [email protected] Mary Grace Conneely Monticello location has been Philip H. Dixon Albany Elissa D. Hecker Irvington moved— Jonathan Lippman New York City Eileen D. Millett New York City Gary A. Munneke White Plains Hilton New York Thomas E. Myers Syracuse John B. Nesbitt 1335 Avenue of the Americas Lyons Gary D. Spivey New York City Colorado Springs, Colorado Sharon L. Wick Buffalo MANAGING EDITOR Daniel J. McMahon January 25-30, 2010 Albany e-mail: [email protected] ASSOCIATE EDITOR Philip C. Weis Oceanside PUBLISHER Patricia K. Bucklin Executive Director NYSBA PRODUCTION STAFF ASSISTANT EDITOR Joan Fucillo DESIGN Lori Herzing Erin Corcoran EDITORIAL OFFICES One Elk Street Albany, NY 12207 (518) 463-3200 FAX (518) 463-8844 www.nysba.org ADVERTISING REPRESENTATIVE Network Media Partners Bruce Tackett Executive Plaza 1, Suite 900 11350 McCormick Road Hunt Valley, MD 21031 (410) 584-1960 e-mail: [email protected] EUGENE C. GERHART (1912 – 2007) Editor-in-Chief, 1961–1998 CONTENTS JULY/AUGUST 2009 THE CAINES IDENTITIES The Faces of America’s First Official Reporter by Gary D. Spivey 10 DEPARTMENTS 5 President’s Message 24 Plaintiff Expert Reports: 8 CLE Seminar Schedule An Insider Revisits Disney 20 Burden of Proof by H. STEPHEN GRACE, JR. by David Paul Horowitz 38 Point of View 30 Arbitrating Commercial Issues: by Robert W. Wood Do You Really Know the 43 Law Practice Management Out-of-Pocket Costs? by Gary A. Munneke 46 Environmental Law by RONALD J. OFFENKRANTZ by Philip Weinberg The New York City Civil Rights 49 Language Tips 34 by Gertrude Block Restoration Act Grows Teeth 50 Attorney Professionalism Forum by JYOTIN HAMID and MARY BETH HOGAN 56 New Members Welcomed 60 Index to Advertisers 60 Classified Notices 63 2009–2010 Officers 64 The Legal Writer by Gerald Lebovits Cartoons © CartoonResource.com The Journal welcomes articles from members of the legal profession on subjects of interest to New York State lawyers. Views expressed in articles or letters published are the authors’ only and are not to be attributed to the Journal, its editors or the Association unless expressly so stated. Authors are responsible for the correctness of all citations and quotations. Contact the editor-in-chief or managing editor for submission guidelines. Material accepted by the Association may be published or made available through print, film, electronically and/or other media. Copyright © 2009 by the New York State Bar Association. The Journal ((ISSN 1529-3769 (print), ISSN 1934-2020 (online)), official publication of the New York State Bar Association, One Elk Street, Albany, NY 12207, is issued nine times each year, as follows: January, February, March/April, May, June, July/ August, September, October, November/December. Single copies $20. Periodical postage paid at Albany, NY and additional mailing offices. POSTMASTER: Send address changes per USPS edict to: One Elk Street, Albany, NY 12207. NYSBA Journal | July/August 2009 | 3 PRESIDENT’S MESSAGE MICHAEL E. GETNICK The Membership Bottom Line: What’s in It for You uring these tough economic The LPM Committee sponsors lun- times, when some of our mem- cheon telephone seminars on various Dbers have lost their jobs and topics, including marketing, social net- even more are struggling to save their working and practice management.