OCTOBER 2009 VOL. 81 | NO. 8 JournalNEW YORK STATE BAR ASSOCIATION The Modernized, Streamlined Contract Electronic Contracts Also in this Issue and Signatures – Redux E-Discovery Why Arbitrate? by Bran Noonan Navigating in PowerPoint 866-FUNDS- NOW Pre-Settlement Finance BESTSELLERS FROM THE NYSBA BOOKSTORE October 2009 Construction Site Personal Injury New York Lawyer’s Deskbook, NEW! Litigation — New York Labor Law Second Edition (2008–2009) The Practice of Criminal Law under §§ 200, 240(1), 241(6) (2008 Revision) WINNER OF THE ABA’S CONSTABAR AWARD the CPLR and Related Civil Procedure Perhaps no single scheme of statutory causes of action The Second Edition consists of 27 chapters, each Statutes, Fifth Edition has initiated more debate. This text provides a road covering a different area of practice that provides A book that pulls together the rules and provi- map through this at-times confusing area of law. advice within that particular area of law. PN: 4150 / Member $250 / List $325 / 2,490 pages sions of law not covered in NY’s CPL or Penal Law. Includes a summary of key case developments. PN: 40698 / Member $45 / List $55 / 206 pages PN: 4047 / Member $80 / List $110 / 480 pages New York Lawyer’s Formbook, Second Edition (2008–2009) Debt Collection and the Enforcement Medical Malpractice in New York, The Formbook is a companion volume to the Third Edition of Money Judgments, Second Edition New York Lawyer’s Deskbook and includes 21 This book provides advanced insight into many sections, each covering a different area of practice. (2008) aspects of the trial of a medical malpractice case. PN: 4155 / Member $250 / List $325 / 3,256 pages Monetary awards determined in court cases involve PN: 41309 / Member $95 / List $125 / 654 pages an array of procedures that attorneys must know. The new second edition, under the editorship of Paul A. New York State Physician’s New York Residential Landlord-Tenant Peters, not only updates case and statutory law but also HIPAA Privacy Manual FFormsorms oonn CDCD Law and Procedure (2008–2009) addresses new issues within this field, providing in-depth A hands-on tool for health care providers New York residential landlord-tenant law is topical analyses. and their legal counsel, this publication daunting to newcomers and the experienced alike. PN: 40308 / Member $125 / List $170 / 548 pages provides guidance for a physician’s office This monograph introduces the fundamentals of to respond to routine, everyday inquiries residential landlord-ten ant law and offers a guide Foundation Evidence, Questions and about protected health information. to the procedural mechanics practitioners face in PN: 4167 / Member $75 / List $95 / 288 pages Courtroom Protocols, Second Edition landlord-tenant disputes. (2009) PN: 4169 / Member $72 / List $80 / 108 pages The second edition, along with its collection of Practitioner’s Handbook for forms and protocols, has four new chapters: Pro Se Appeals to the Court of Appeals, Public Sector Labor and Employment Defendants, Courtroom Closure, Burdens of Proof Third Edition Law, Third Edition (2009 Supplement) and Summations. This new edition updates topics on taking and PN: 41078 / Member $50 / List $60 / 172 pages This landmark text has been revised to include perfecting criminal and civil appeals, alternative recent developments in case and statutory law that procedures for selected appeals, and how to write Impasse Resolution (2008) are useful to practitioners representing public sector and present the appeal. employees, unions or management. This publication provides both an overview and PN: 4017 / Member $48 / List $57 / 234 pages PN: 42057 / Member $150 / List $185 / 1,550 pages in-depth discussion of the impasse resolution proce- dures under the Public Employees Fair Employment Real Estate Titles, Third Edition Act, commonly known as the Taylor Law. The Plaintiff’s Personal Injury Action An all-time bestseller, this edition is edited by James M. in New York State PN: 4122 / Member $30 / List $40 / 124 pages Pedowitz, Esq., a nationally renowned expert in real This treatise answers the tough questions faced by estate law and title insurance, and authored by some the plaintiff’s personal injury attorney every day – Legal Careers in New York State of the most distinguished practitioners in the field. It’s liens, special needs trusts, structures, Medicare and Government, Ninth Edition (2008) an essential guide to the many complex subjects sur- Medicaid, conflicts of interest, workers’ compensa- For law students and lawyers considering careers rounding real estate law. tion, no-fault, bankruptcy, representing a party in and/or work experiences in public service with the PN: 521007 / Member $150 / List $180 / 1,632 pages infancy, incompetency and wrongful death. State of New York, this expanded edition includes PN: 4181 / Member $175 / List $225 / 1,734 pages comprehen sive information on employment NYSBA Practice Forms on FFormsorms opportunities with the various levels of state CD-ROM—2008–2009 oonn CCDD government. Access nearly 800 forms for use in PN: 41298 / Member $30 / List $50 / 264 pages daily practice. PN: 61509 / Member $280 / List $315 Model Partnership Agreements (2009) Here is a guide for solo and small-firm practitioners who wish to establish a partnership or other business form, or to formalize relationships in a law practice that has no formal structure. PN: 41358 / Member $50 / List $60 / 142 pages Expand your professional knowledge 1.800.582.2452 www.nysba.org/pubs Mention Code: PUB0568 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 Tarrytown e-mail: [email protected] Mary Grace Conneely Monticello Philip H. Dixon Albany Elissa D. Hecker Irvington Jonathan Lippman New York City Eileen D. Millett New York City Gary A. Munneke White Plains Thomas E. Myers Syracuse John B. Nesbitt Lyons Gary D. Spivey Colorado Springs, Colorado Sharon L. Wick Buffalo MANAGING EDITOR Daniel J. McMahon Albany e-mail: [email protected] ASSOCIATE EDITOR Philip C. Weis Oceanside My membership with the New York State Bar Association has brought me PUBLISHER many useful benefits like networking—including interacting with judges, Patricia K. Bucklin Executive Director participating in CLE, and making life-long friends. I highly recommend membership in the NYSBA to all attorneys. NYSBA PRODUCTION STAFF ASSISTANT EDITOR Joan Fucillo DESIGN Stephen P. Younger Lori Herzing NYSBA member since 1983 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 Renew today for 2010. Bruce Tackett Executive Plaza 1, Suite 900 www.nysba.org/renew2010 11350 McCormick Road Hunt Valley, MD 21031 (410) 584-1960 Thank you for your membership support. e-mail: [email protected] EUGENE C. GERHART (1912 – 2007) Editor-in-Chief, 1961–1998 CONTENTS OCTOBER 2009 20 Why Arbitrate? The Benefits and Savings BY EDNA SUSSMAN DEPARTMENTS 5 President’s Message 8 CLE Seminar Schedule 18 Burden of Proof BY DAVID PAUL HOROWITZ 26 Planning Ahead BY ILENE S. COOPER AND ROBERT M. HARPER 30 Point of View BY BRADLEY D. KAY 36 Arbitration BY PAUL BENNETT MARROW THE MODERNIZED, 40 Presentation Skills for Lawyers BY ROBERT LANE AND BRUCE A. OLSON STREAMLINED 44 E-Discovery CONTRACT BY STEVEN C. BENNETT 48 Attorney Professionalism Forum Electronic Contracts and 53 Language Tips BY GERTRUDE BLOCK Signatures – Redux 54 New Members Welcomed BY BRAN NOONAN 60 Classified Notices 60 Index to Advertisers 10 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 | October 2009 | 3 PRESIDENT’S MESSAGE MICHAEL E. GETNICK Social Media: The Good, the Bad and the Ugly or law firms promoting their speak. When in doubt, don’t say any- practices and attorneys selling thing. Remember that anything you Ftheir skills, social media sites like post should be considered permanent LinkedIn, Facebook and Twitter can be and searchable; it can be copied, pasted essential tools. In fact, our Lawyers in and e-mailed to a wide audience. Transition Committee recently spon- Attorneys using social media sored a free Webinar on the benefits of also can run afoul of the Rules of social networking in the down econo- Professional Conduct. Anecdotally, I my.1 The “good”: In a time where we have heard of instances where attor- are all concerned about the bottom neys were communicating with their line, social media can be an attractive clients through Facebook, and these requirement of posting a disclaimer. I marketing tool due to its relatively posts were ultimately read by oppos- am certain that the use of social media low cost.