MARCH/APRIL 2010 VOL. 82 | NO. 3 JournalNEW YORK STATE BAR ASSOCIATION Also in this Issue The Opportunity to 2009 Trust and Estate Law Judge Manton’s Rise and Fall Be Part of the World ADR for Dental Claims Consumer Protection in 2009 Legal Cases for Gender Equality by Karen DeCrow BESTSELLERS NEW YORK STATE BAR ASSOCIATION FROM THE NYSBA BOOKSTORE Journal February 2010 BOARD OF EDITORS EDITOR-IN-CHIEF David C. Wilkes Debt Collection and the Enforcement of NEW! Tarrytown Money Judgments, Second Edition (2008) e-mail: [email protected] Attorney Escrow Accounts – Rules, Monetary awards determined in court cases involve an Mary Grace Conneely array of procedures that attorneys must know. The new Regulations and Related Topics, Monticello second edition, under the editorship of Paul A. Peters, 3rd Edition Philip H. Dixon This new edition provides useful guidance on Esq., not only updates case and statutory law but also Albany escrow funds and agreements, IOLA accounts addresses new issues within this field, providing in-depth Elissa D. Hecker and the Lawyers’ Fund for Client Protection. The Irvington topical analyses. greatly expanded appendix features statutes, Jonathan Lippman PN: 40308 / Member $125 / List $170 / 548 pages regulations and forms. New York City PN: 40269 / Member $45 / List $55 / 330 pages Eileen D. Millett Foundation Evidence, Questions and New York City Best Practices in Legal Courtroom Protocols, Second Edition Gary A. Munneke Management White Plains (2009) The most complete and exhaustive treatment of Thomas E. Myers The second edition, along with its collection of the business aspects of running a law firm avail- Syracuse forms and protocols, has four new chapters: Pro Se able anywhere. John B. Nesbitt Defendants, Courtroom Closure, Burdens of Proof and PN: 4131 / Member $139 / List $179 / 498 pages Lyons Summations. Gary D. Spivey Colorado Springs, Colorado PN: 41078 / Member $50 / List $60 / 172 pages Consumer Bankruptcy, 2nd Edition This new edition covers consumer bankruptcy Sharon L. Wick from both debtor and creditor perspectives. It Buffalo Medical Malpractice in New York, provides official and procedural forms, as well as MANAGING EDITOR Third Edition the local bankruptcy rules for New York’s federal Daniel J. McMahon This book provides advanced insight into many districts. Albany e-mail: [email protected] aspects of the trial of a medical malpractice case. PN: 40456 / Member $125 / List $170 / 770 PN: 41309 / Member $95 / List $125 / 654 pages pages ASSOCIATE EDITORS Bran Noonan New York Lawyer’s Deskbook New York City and Formbook (2009–2010) Model Partnership Agreements (2009) Philip C. Weis Award-winning and packed with new information Here is a guide for solo and small-firm practitioners Oceanside who wish to establish a partnership or other business and forms for use in over 25 practice areas. form, or to formalize relationships in a law practice Deskbook PN: 4150 / Member $295 / List $375 Formbook PN: 4155 / Member $295 / List $375 PUBLISHER that has no formal structure. Patricia K. Bucklin PN: 41358 / Member $50 / List $60 / 142 pages New York Practice Monograph Executive Director Series 2009–2010 New York Residential Landlord-Tenant This 16-book set comprises chapters excerpted NYSBA PRODUCTION STAFF from the 2009-2010 edition of the New York Law and Procedure (2009–2010) ASSISTANT EDITOR Covers the fundamentals of residential landlord-tenant law Lawyer’s Deskbook and Formbook. It is an invalu- Joan Fucillo and offers a guide to the procedural mechanics practitio- able reference for practitioners who work in or are new to these areas. DESIGN ners face in landlord-tenant disputes. Greatly expanded for Lori Herzing 2009–2010, with numerous samples of judicial forms. PN: 4009GP / Member $400 / List $500 Erin Corcoran PN: 41699 / Member $72 / List $80 / 366 pages NYSBA Practice Forms on EDITORIAL OFFICES CD-ROM 2009–2010 One Elk Street The Plaintiff’s Personal Injury Action in More than 600 of the forms from Deskbook and Albany, NY 12207 New York State Formbook used by experienced practitioners in (518) 463-3200 FAX (518) 463-8844 This treatise answers the tough questions faced by their daily practice. The advanced installation pro- gram allows forms to be used in Adobe Acrobat® www.nysba.org the plaintiff’s personal injury attorney every day – Reader,™ Microsoft Word® or WordPerfect.® liens, special needs trusts, structures, Medicare and PN: 615010/ 2009-2010 / Member $280 / ADVERTISING REPRESENTATIVE Medicaid, conflicts of interest, workers’ compensation, List $315 Network Media Partners no-fault, bankruptcy, representing a party in infancy, Bruce Tackett incompetency and wrongful death. Executive Plaza 1, Suite 900 PN: 4181 / Member $175 / List $225 / 1,734 pages 11350 McCormick Road Hunt Valley, MD 21031 (410) 584-1960 e-mail: [email protected] EUGENE C. GERHART (1912 – 2007) Expand your professional knowledge Editor-in-Chief, 1961–1998 1.800.582.2452 www.nysba.org/pubs Mention Code: PUB0716 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. CONTENTS MARCH/APRIL 2010 THE OPPORTUNITY TO BE PART OF THE WORLD Legal Cases for 10 Gender Equality BY KAREN DECROW DEPARTMENTS 5 President’s Message 24 2009 New York State Legislative Session 8 CLE Seminar Schedule Changes Affecting Trust and Estate Law 20 Burden of Proof BY JOSHUA S. RUBENSTEIN BY DAVID PAUL HOROWITZ The Rise and Fall of 44 Metes & Bounds 28 BY MICHAEL RIKON Martin Thomas Manton 48 Attorney Professionalism Forum BY MARVIN V. A USUBEL 49 Presentation Skills for Lawyers Peer Review BY ELLIOTT WILCOX 34 An Alternative Dispute Resolution Process 50 Empire State Counsel to Dentistry Malpractice Claims 56 Language Tips BY JODY ERDFARB, JEFFREY GALLER AND JUDITH SHUB BY GERTRUDE BLOCK 58 Index to Advertisers 40 New York State Consumer Protection 58 Classified Notices Law and Class Actions in 2009: Part I 63 2009–2010 Officers BY THOMAS A. DICKERSON 64 The Legal Writer BY GERALD LEBOVITS New Members Welcomed – please visit www.nysba.org/welcomemembers 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 © 2010 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 | March/April 2010 | 3 PRESIDENT’S MESSAGE MICHAEL E. GETNICK Membership Challenge 2010: The Not-So-Impossible Dream rom our bank accounts to our despite a historic downturn in the 401ks to our business ledgers, economy that has negatively impacted Fwe’ve all been watching the bot- the legal profession, speaks volumes tom line for quite some time now, out about the tremendous value that mem- of concern for what the numbers will bership in the State Bar provides. show. The situation is no different at the State Bar. We’ve been closely Annual Meeting Is a Success! watching our investments, tracking The challenges associated with mov- our expenses, and working hard to do ing Annual Meeting to a new location, more with less. When I took the oath of coupled with the down economy, were office last June, I pledged to maintain among our concerns as we planned There were so many phenomenal the first-class level of services that our the State Bar’s 133rd Annual Meeting. moments during Annual Meeting members have come to depend upon, Fortunately, I am pleased to report week, and it is impossible to share as well as focus on the relevant, practi- that our Annual Meeting, which was them all, but here are some highlights: cal programs and initiatives that our attended by about 5,000 people who We were honored that Court of members need during these difficult collectively registered for more than Appeals Chief Judge Jonathan Lippman economic times. I am proud to report 10,000 events, was a tremendous suc- joined us at many events, includ- that, due in large part to these efforts, cess. Nearly 1,100 attended the Tax ing our House of Delegates meeting, we are seeing evidence of sustained Section luncheon – what I am told where he spoke passionately about membership growth. is the largest gathering of tax attor- the Judiciary’s budget request, which In 2007, then-President Kate neys in the nation. Notably, the event includes a desperately needed $15 mil- Madigan issued an ambitious featured Internal Revenue Service lion appropriation for civil legal servic- Membership Challenge, with the goal Commissioner Douglas Shulman, who es and funds for the long-overdue judi- of increasing State Bar membership by chose our venue to make the signifi- cial pay increase. As President-elect 5% and section membership by 10% by cant announcement that the IRS would Steve Younger stated, our Executive 2010. It is Kate’s foresight and leader- begin requiring large corporations to Committee voted unanimously to ship that put us on track to achieve the disclose on their tax returns that they stand side by side with the Judiciary in sustained growth we are seeing today.