COUNTY LAWYER NEW YORK
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Persuasive Legal Writing: You Can Do It with a Few Tips from a Former Editor
Be Brief A succinct argument is a compelling one. Choose your words with purpose and clearly say what you mean. When you have made your point, stop. A busy judge has no time to weed through vague and redundant prose.
By Shira Laskin, Esq.
Legal writing need not be considered a daunting and tedious task. Minor changes to your approach can yield spectacular results and up your chances of getting the relief that you seek. With a little effort and some ground rules, you can achieve clear and compelling written advocacy.
Tell a Good Story A good storyteller has a captive audience and that is precisely what you seek in your judge. Compellingly present your facts, emphasizing the good while acknowledging and minimizing the bad. Avoid dry recitation of dates and details.
Through description, allow the court to visualize what happened to your client. As you paint this picture, develop the emotion in the case. Enable the judge to see your client as a person and not just a party to a lawsuit. Quickly and Persistently Present your Theme Your theme should be clear from the first paragraph of your papers and evident throughout their remainder. Make your
point quickly so the reader is not bored looking for it. Then relate your theme to each expressed idea so that your papers are cohesive.
A good theme provokes an emotional response, not merely an intellectual one. It allows your audience to identify in some way with your client’s circumstances. While some emotion is beneficial, avoid presenting exaggerated drama to maintain the reader’s trust.
Simplicity is key. Take note of areas that seemingly require more explanation and reflect on them to refine your message. Eliminate phrases that can be replaced by a single word and groups of sentences that express a single idea. Elect common words to achieve clarity instead of longer ones designed to display your knowledge.
Find your Flow Good legal prose has a rhythm that seamlessly carries a reader from one sentence to the next. Use language and logic that flow to keep your reader focused on your message instead of distracted by how you deliver it.
Vary your word choice, how you begin each sentence and your sentence length to
Whether contemplated in the context of dispute resolution or deal-making, “the entire objective of entering into a given negotiation is to achieve a set of outcomes that is better than those that you would achieve without the negotiation.”1 Thus, a primary role of lawyers representing clients in negotiation is to utilize structure and rationality to maximize the benefits resulting from engaging in the process. In this regard, the lawyer must remember, and explain to the client, that a carefully negotiated agreement may have more value than winning a case in court or looking for another deal in the market. Lawyers may increase the effectiveness of their representation by adopting a collaborative approach the attorney-client relationship,which encourages dialog about the issues at stake and promotes clients’ participation in the process in a meaningful way.2 By implementing systemic techniques of interviewing and counseling designed to identify interests and priorities, find feasible tradeoffs, and formulate
creative solutions, lawyers can develop better strategies for achieving best results. This checklist is a start toward that goal.
Improve Communication The client interview is the best opportunity to fully explore the client’s situation, interests, concerns, and legal positions. Many negotiators learn about their client’s true preferences too late, or at inopportune times. One way to avoid this is to elicit key information using the “empathy loop.” This technique entails: (1) listening to the client by focusing on his/her words, body language, and tone; (2) asking open ended questions to get the big picture; and (3) confirming your understanding by summarizing and paraphrasing back to the client what you have heard.3 Demonstrating that you are listening is also necessary to establish rapport and trust.
Gather Strategic Information Be prepared for your meetings with the client. Lawyers’ questions should be designed to gather information helpful in defining issues to be negotiated and devel-
I N S I D E
Payment Disputes.....2 Domestic Violence ....2 Copyright Liability....10 Attorneys’ Guide .....13 Q&A with NYCLA’s
New President...........3 T A B L E O F C O N T E N T S Attorneys’ Guide.............................13 Book Review.....................................6
(See Persuasive Legal Writing on page 13)
The Effective Negotiator: Interviewing and Counseling Clients By Clara Flebus, Esq.
Volume 7 / Number 23
oping options favorable to the client that are acceptable to the other side. Questions lawyers might focus on include: (1) what happened, who did what, and who said what; (2) how does the client feel about the situation, and how might the counterpart be feeling; (3) what does the client fear about the situation; and (4) are there external issues, such as damage to the client’s reputation.4 By structuring the interview around facts, feelings, and potential “identity” issues, lawyers may discover facets in the competing positions that might not be obvious to the client.
Identify Interests Discern positions and interests; the difference between these two factors is crucial in negotiation. Assume two girls are fighting over an orange, one asserting that the orange should be hers because she is older, and the other because she asked for it first. However, when the mother asks each girl why she wants the orange, she might discover that one needs the peel for a school project and the other wants the (See The Effective Negotiator on Page 14)
Copyright Liability .........................10 Domestic Violence ............................2 Electronic Research Center CLEs ..10 Ethics Hotline .................................11 Negotiating ................................Cover Payment Disputes .............................2 Persuasive Legal Writing ..........Cover Upcoming Events..............................9 What’s Tweeting .............................11 Q&A with NYCLA’s New President............................................3
June 2013 / The New York County Lawyer
Warning to Property Owners: Exercise Caution in Handling Payment Disputes Between Your Contractor and its Subcontractors and Suppliers By Matthew D. Stockwell, Esq.
One of the most effectual remedies an unpaid contractor can have is the mechanic’s lien. It allows the contractor (in most circumstances) to place a lien on an owner’s property, even if the contractor has no contractual relationship with the property owner. On public projects, a lien attaches to the funds payable by the public entity rather than to the public property. The filing of a mechanic’s lien can have a number of effects, aside from irritating the owner. If the lien is filed by a subcontractor or supplier, the company that has contracted with the owner will usually be required to satisfy the lien or file a bond to discharge it. Rather than risk being responsible for the owner’s costs and fees associated with bonding the lien off itself, most companies will file a discharge bond, to avoid making payment to the contractor until the dispute is worked out, and to resume the flow of progress payments from the owner. Few, however, pay attention to the actual discharge bond. Once the clerk has accepted the discharge bond for filing, it is generally assumed that the bond is compliant with the Lien Law and valid.
A recent decision in Westchester County should give property owners pause about what they say to contractors in the face of a mechanic’s lien, as well as releasing funds to a contractor in reliance upon discharge bonds.
The decision resulted from Bergassi Group, LLC v. Consolidated Edison Co. of N.Y., Inc.,1 in which two of the plaintiffs were subcontractors to
Qualcon, the general contractor on a road improvement project in the Bronx.2At the time the plaintiff filed its public improvement lien, Consolidated Edison Co. of N.Y. Inc. (Con Ed) allegedly owed Qualcon more than $480,000. A number of other liens were served upon Con Ed, and as a result, Con Ed filed a CPLR 5239 petition to deposit the funds it owed to Qualcon in Supreme Court, Bronx County, until the dispute could be resolved.Con Ed’s counsel also allegedly informed the plaintiffs that there was enough money being withheld from Qualcon in retainage to satisfy the liens, that Con Ed would be depositing the funds in court, and that the plaintiffs would eventually be paid.
Approximately two weeks later, Qualcon provided Con Ed with discharge bonds issued by Oceanic Indemnity Ltd., and Con Ed released the funds that it was holding from Qualcon. Shortly afterward, Qualcon filed for Chapter 11 bankruptcy protection. Unfortunately, the discharge bonds were fraudulent, because Oceanic was not licensed to conduct insurance business in New York, and the bonds were missing statutorily required items, including a corporate financial statement and certificate of qualification.
Left with no immediate remedy against Qualcon,3and worthless bonds, the plaintiffs alleged that Con Ed should have known the bonds were insufficient, and that Con Ed negligently released the funds to Qualcon. The plaintiff asserted several additional causes of action,
including an allegation that Con Ed diverted trust funds, by releasing the money to Qualcon.
Con Ed filed a motion to dismiss, contending among other things that it released the funds to Qualcon because the plaintiffs’ liens were defective, and that it could not justify withholding funds from Qualcon any further. Con Ed also argued that, as a project owner, it could not be considered a “trustee” in accordance with the Lien Law. Con Ed asserted that once the county clerk accepted the discharge bonds for filing, it had no grounds to dispute that the bonds were “effective,” and at that point, Con Ed became obligated to release the funds it was holding from Qualcon. The court agreed with Con Ed that as a general proposition, an owner holding funds due to a contractor does not become liable as an Article 3-A trustee to subcontractors. However, the court found that Con Ed’s institution of the CPLR 5239 interpleader action and acknowledging to plaintiffs’ attorneys the validity of the liens and providing assurances that the funds were being retained, caused a trust to be set up with the subcontractor plaintiffs as the beneficiaries. Essentially, the court found that a claim for trust fund diversion could lie against Con Ed because of its direct dealings with plaintiffs’ attorneys and the assurances it made.
Additionally, and somewhat surprisingly, the court held that the plaintiffs adequately alleged a claim of negligence against Con Ed, for allegedly failing to exercise reasonable care in ensuring that the lien
discharge bonds at least satisfied the requirements of Lien Law § 19(4)(a). The court did not cite to any authority in support of this holding.
Although the court’s decision was on a motion to dismiss at the early stages of the litigation, the holding (at least for now) has substantial implications for property owners and tenants—both public and private—who are withholding funds on a construction project as a result of mechanic’s or public improvement lien filings. First, the owner must exercise caution in making statements and providing assurances to contractors concerning payment. Second, a discharge bond should be carefully examined to determine whether it complies with the Lien Law.4 A discharge bond must consist of the following:
• The bond, issued by a surety authorized to conduct business in New York, in the amount of 110 percent of the lien that the bond is to discharge; • Power of attorney to execute the discharge bond and certified authorization from the surety’s board of directors; • Certificate of Solvency from the Department of Financial Services; and • Financial statement from the surety.
Additionally, the discharge bond must be served upon the lienor. It is also good practice to include a Certification of Non-Revocation, attesting that the surety’s authority to conduct business has not been revoked. The New York State Department of Financial Service’s website has a search feature that allows the
(See Exercise Caution on page 15)
What’s Love Got to Do with It: Violence at Home By Sherri Donovan, Esq.
The Valentine’s Day murder of Reeva Steenkamp at her boyfriend Oscar Pistorius’s home in South Africa sparked an international discussion on domestic violence. Just a few days later, it was reported that a New York news anchorman allegedly choked his wife in their home following a history of domestic disputes. Flipping through my local paper on the same day the anchorman and Steenkamp stories were reported revealed a shocking number of similar stories: a 24 year old woman’s body washing ashore on the Rockaways, her body bruised and bound after having disappeared from the home she shared with her boyfriend after a fight; a woman stabbed to death in her home by her boyfriend who then stabbed himself and slit his wrists in a suicide attempt; a husband’s fatal stabbing of his wife in front of the couple’s grandchild. As many commentators have remarked, domestic violence can occur anywhere and to anyone, regardless of wealth, beauty, education, fame, age or vocation. Case in point, Reeva Steenkamp, a model and law school graduate, died of gunshot wounds at the home of her boyfriend, a high profile star athlete. Ms. Steenkamp’s
death also shed a light on South Africa’s particularly great struggle with domestic violence, a subject she had tweeted about a few days before her death. Studies have shown that South Africa has one of the highest reported rates of domestic violence and rape in the world, even with a Domestic Violence Act in place for five years and progressive laws in areas of sexual equality, having legalized same sex marriage in 2006.
In the United States, just two days before the Steenkamp murder, the Senate had voted to expand the Violence Against Women Act of 1994. This legislation was approved by the House of Representatives on February 28th and signed into law by President Obama on March 7th. As the President urged the House to act quickly, he said in a statement: “Delay isn’t an option when three women are still killed by their husbands or boyfriends every day. Delay isn’t an option when countless women still live in fear of abuse, and when one in five have been victims of rape.” The new legislation offers new protections for gay, bisexual and transgender victims of domestic violence and sexual abuse, allows American Indian women who are assaulted by non-Indians on reservations to take their
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case to tribal courts, and enhances federal programs to better assist local law enforcement and aid victims of domestic and sexual abuse.
In New York, our legislature is continually expanding state laws in an effort to better address domestic violence. (See http://www.opdv.state.ny.us/law/summ_y ear/index.html to review annual legislative summaries.) In addition, the Intimate Partner Sexual Assault Court (IPSA) has recently been established in New York City, focusing exclusively on felony and misdemeanor criminal cases involving sexual assault perpetrated by intimate partners. This court was established in collaboration with The Center for Court Innovation, Safe Horizon, the Crime Victim Treatment Center at St. Luke’s-Roosevelt Hospital and the New York County District Attorney’s Office. While domestic violence courts have long existed in New York, the IPSA Court is unique in that domestic violence and sexual assault services have been historically bifurcated, both for victims and perpetrators, thus failing to address the distinct and complex dynamics and needs involved in an intimate partner sexual assault case.
We hope that new laws and specialized courts can help decrease the violence, however even as a culture of self help, life coaching, yoga and meditation flourishes, violence between intimate partners continues. Domestic violence not only
includes physical and sexual abuse, but emotional, mental and verbal abuse as well. Because of the psychological aspect of domestic abuse, victims will often look to themselves to find ways to change. Our clients may not be prepared to define emotional or sexual abuse as such, or may be hesitant to reveal details of abuse out of fear or shame. Failure to understand our client’s relationship with his or her partner may put this client in danger and hinder our ability to achieve a good resolution. If there are indications of any type of abusive situation, it may help to spend some one on one time with your client asking open ended questions. We may be able to uncover behavior that constitutes abuse and help our clients see it for what it is. Other clients may be so affected by a history of abusive treatment that it is difficult for them to proceed with a divorce. Referrals to mental health or other specially trained professionals may be warranted. See http:// www.nyc.gov/html/ocdv/html/services/se rvices.shtml to access information on New York City’s domestic violence relief programs. Sherri Donovan, a NYCLA and Matrimonial Law Section member, is the owner of Sherri Donovan & Associates and is a family and matrimonial attorney with over 25 years of experience. Ms. Donovan is also a professor of forensic psychology and family law, neutral evaluator for New York State courts, mediator, and parenting coordinator.
June 2013 / The New York County Lawyer
MESSAGE FROM BARBARA MOSES PRESIDENT OF NYCLA
a law professor, I sometimes have to remind my students that such a world ever existed. As President of NYCLA, I welcome the challenge of reaching out to lawyers of every vintage, as well as the law students and law graduates who are looking for a professional home as they navigate the passage from student to member of the bar.
After serving on NYCLA’s Board of Directors for five years, I was inducted as President of the Association last month. During my Board service, I was privileged to observe the work of the presidents who came before me — Stewart Aaron, Jim Kobak, and Ann Lesk — and to assist them as they drove the organization forward. It is now my responsibility to continue that momentum during my presidency.
In order to do that, NYCLA must engage today’s young attorneys — the leaders of tomorrow — and provide programs and services tailored to their needs and to the needs of lawyers who never practiced in a world without electronic research, without e-mail, without e-filing, without Skype, Twitter, and Siri, and without the Internet instantly within reach, at all times, on their iPhones. The needs and expectations of this group are in some obvious ways very different from those of older lawyers. But the values we share as attorneys remain the same, and the goals we set for
Barbara Moses President, New York County Lawyers’ Association
ourselves are not affected by even the most dramatic leaps in technology: professional integrity, high ethical standards, a strong and independent judiciary, access to justice regardless of income, and collegiality among members of our Association and throughout the bar. As a lawyer for almost 30 years, I remember the pre-Internet world well. As
If I haven’t already met you, I look forward to seeing you at an upcoming program—or meeting you online. You can telephone me, email me, or follow me on Twitter (@NYCLAPres). However you connect, your ideas and insights are important to NYCLA, and I encourage you to provide feedback on the Association’s offerings and share your views on what we can do to improve your member experience. Barbara Moses President New York County Lawyers’ Association
Meet NYCLA’s 59th President, Barbara Moses On Thursday, May 23, NYCLA held its Annual Meeting with the induction of Barbara Moses as NYCLA’s 59th President. The other officers inducted were: Lewis F. Tesser as President-Elect, Carol A. Sigmond as Vice President, Stephen C. Lessard as Treasurer, and Donald M. Zolin as Secretary.
Challenge Task Force, to look at the new 50-hour pro bono mandate for bar admission, develop recommendations to help all of the stakeholders in the New York legal community get ready for that mandate, and — most importantly — work to ensure that bar applicants are able to comply with the mandate both efficiently and effectively. We have also approved two new pro bono Watch clips from NYCLA’s Annual Meeting at projects. One project will help youtube.com/NYCountyLawyersAssoc veterans suffering from PTSD and related disorders to obtain Moses, who serves as Counsel at discharge upgrades. The second involves Morvillo Abramowitz Grand Iason & assisting small-business owners, especially Anello PC and Visiting Clinical immigrants, with state and local filing Professor at Seton Hall School of Law, requirements so as to prevent the need for has been a member of NYCLA for over criminal prosecutions. 18 years, serving in various capacities including as Chair of the Federal Courts Also in the works is a revamped dues Committee and most recently as structure that will make NYCLA more President-Elect and President of the affordable to young lawyers just starting NYCLA Foundation. out in their careers. The dues structure has not been touched since 2007. Instead A graduate of Harvard Law School and of raising rates across the board, we are Dartmouth College, Moses taught lowering dues for young lawyers not yet Lawyering at New York University School well established in their careers. Newly of Law from 2009 to 2011, then joined the admitted lawyers will receive a complifaculty at Seton Hall University School of mentary membership from the Law, where she directs the Civil Rights Association, just as they do now, during and Constitutional Litigation Clinic. From the first year they are licensed to prac2007 through 2009, Moses was an Adjunct tice. Thereafter, dues will start at $75 for Professor at Seton Hall, teaching lawyers admitted one to two years—only Persuasion and Advocacy. $50 if they were NYCLA members while in law school or before admission to the From 2002 to 2011, before shifting gears bar. That’s a substantial reduction from to focus on academia, Moses was a partthe dues we have been charging young ner at Morvillo Abramowitz, handling lawyers since 2007. complex business disputes in state and federal courts nationwide, in arbitration, We’re also happy to announce that we are and in administrative proceedings. adding a senior category, at a reduced Before that, she was a partner at Orrick, rate, for attorneys who are no longer Herrington & Sutcliffe, both in San licensed to practice or who are licensed as Francisco and in New York. Moses has an Emeritus with the New York State Bar. extensive experience in securities fraud and shareholder rights litigation, securiQ. What projects/programs already in ties regulatory proceedings, class and place at NYCLA would you like to derivative actions, partnership and concontinue? tract disputes, and copyright, trademark and trade secrets litigation. A. The Judicial Budget Cuts Task Force, chaired by Michael Miller and Judge We sat down with Moses, who weighed Stephen Crane, was formed in 2011 to in on her plans for her upcoming presilook at state and federal budget cuts. dency and shared some insight into why After holding an all-day public hearing her work at NYCLA is personally and in late 2011 that brought together leadprofessionally meaningful: ers from the New York legal community to testify on the impact of budget cuts, Q. What new initiatives do you have the Task Force released its Public planned for the Association? Hearing Report on the Effects of A. We are launching the Meeting the Judicial Budget Cuts on the New York
State and Federal Courts. This detailed report tracked the actual, real-world consequences of the $170 million in cuts imposed on the New York State judicial budget the year before: shorter courthouse hours, longer waits for trial, and a reduced ability to track and monitor individuals on bail or on parole. Witnesses provided revealing data and first hand observations into the impact of the budget cuts and explained how cuts not only jeopardize progress but significantly reduce access to justice and public safety in fundamental ways, all outlined in the report. Unfortunately, none of those budget cuts has been restored, making access to justice a significant issue for New Yorkers. And now the federal courts are suffering from sequestration, which some observers think could jeopardize their ability to carry out their constitutionally required responsibilities. The Task Force is now looking at the real-world effects of sequestration, and reexamining the lasting impact of the cuts in the state court system. As always, the Task Force is focusing on how these cuts impact indigent and low-income New Yorkers. It is also mindful of the potential longterm effects of the cuts on New York’s reputation as an efficient forum to resolve sophisticated business disputes. Q. What drives you to lead NYCLA in its efforts to build a better legal and greater community? A. I am drawn to the inclusive, principled, and energetic nature of NYCLA,which is constantly striving to change the legal and greater community for the better. Since its founding in 1908, Association and Committee membership has been open to all New York lawyers, period. We’re now making it even easier to become part of NYCLA by stepping up outreach to the law schools, adding social and networking programs through our active Young Lawyers’ Section, and reducing dues for lawyers recently admitted to practice. NYCLA has never been afraid to speak out on issues important to the profession or the administration of justice. In 1943, NYCLA walked out of the American Bar Association — temporarily — because (See Q & A with Barbara Moses on page 15)
COUNTY LAWYER Stewart D. Aaron President
Sophia J Gianacoplos Executive Director
Toni Valenti Director of Marketing and Membership Development
Ariella Greenbaum Editor Senior Communications and Social Media Manager
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Photo Credits Dana Burr Ariella Greenbaum
June 2013 / The New York County Lawyer
Spring and Early Summer at the CLE Institute Winning Cases in Federal Court Returns to the CLE Institute: Program Chair Joel Silverstein, Stern & Kilcullen, LLC and this year’s Judicial Chair Hon. Paul A. Crotty, SDNY, have assembled an all-star faculty of federal litigators to walk you through trying a case in federal court on consecutive Thursday evenings June 20 and 27. Topics to be covered include: Day 1: Pre Trial, Trial and Post Trial Procedure • Commencing an Action in federal Court • Responding to a Complaint in federal Court • Seeking and Opposing Summary Judgment • Trial of a Civil Case in Federal Court • Overview of Post-Trial procedure Day 2: Discovery and Experts • Overview of Discovery Methods and Motions • Non-Party Discovery • Electronic Discovery • Taking and Defending Depositions • Experts Advice From More Experts: More Successful Strategies for Winning Commercial Cases in New York State Courts: Back by popular demand — but with new topics and faculty! Join Program Chair Robert Haig, Kelley Drye & Warren LLP, and an unparalleled faculty from the bench and bar for a full day program exploring how to win commercial cases in New York State Courts on Tuesday, June 11. Registrants paying the full member/non-member fee receive a copy of the critically acclaimed 6-volume Commercial Litigation in New York State Courts, published by NYCLA and Thomson Reuters, and a CD-ROM containing forms and jury instructions – a $660.00 retail value. To see a complete
breakdown of topics to be discussed and the outstanding faculty to be speaking at the program, see the full page ad for the program on the opposite page. Construction at the World Trade Center and Other Large Construction Projects: Insurance, Defects/Disasters and Superstorm Sandy: Join NYCLA’s Insurance Law and Construction Law Committees on Wednesday, June 26 as a panel of experts address the issues surrounding construction at the World Trade Center and other large construction projects, including: • a discussion of insurance issues, • dealing with defects and disasters and • how construction projects coped with the aftermath of Hurricane Sandy. Interested in a Program, But Can’t Make it to the Live Lecture? NYCLA’s CLE Institute has formed a strategic partnership with Lawline.com, a leading distributor of online content, to stream live webinars of many of our live programs. Be sure to check the nycla website for a list of upcoming webinars, or visit the NYCLA branded on-demand and live webinar page at http://nycla.furthered.com/cle/index.php
June and Early July Programs Saving the Distressed Homeowner: A View From the Homeowner’s and the Bank’s Side Monday, June 3, 2013; 6-9 p.m. 3 NY Credits: 1 Ethics; 1 Skills; 1 PP; Transitional and Non-transitional; 3 NJ Credits: 1 Ethics; 2 General e-Discovery and Social Media Tuesday, June 4, 2013; 6-9 p.m. 3 NY Credits: 1 Ethics;1 PP; 1 Skills; Transitional and Non-transitional; 3 NJ Credits: 1 Ethics; 2 General
Understanding and Complying with the Regulatory and Tax Implications of the Affordable Care Act Wednesday, June 5, 2013; 7-8:30 p.m. 1.5 NY Credits: 1 PP; .5 Skills; Transitional and Non-transitional; 1.5 NJ Credits: 1.5 General U Visas – Temporary Legal Status for Crime Victims and Aid to Law Enforcement Thursday, June 6, 2013; 6-8 p.m. 2 NY Credits: 2 PP; Transitional and Non-transitional; 2 NJ Credits: 2 General Everything You Need to Know About Reverse Mortgages: What They Are; When and How to Get One; Pitfalls and Advantages Monday, June 10, 2013; 6-8 p.m. 2 NY Credits: 1 PP; 1 Skills; Transitional and Non-transitional; 2 NJ Credits: 2 General Advice From More Experts: More Successful Strategies for Winning Commercial Cases in New York State Courts Tuesday, June 11, 2013; 9 a.m.-5 p.m. 8 NY Credits: 1 Ethics; 4 Skills; 3 PP/LPM; Transitional and Non-transitional; 8 NJ Credits: 1 Ethics; 7 General Wall St. and the Law: Asset Protection in Today’s Regulatory Environment for the Financial Industry Tuesday, June 18, 2013; 6-8 p.m. 2 NY Credits: 0.5 Ethics; 1.5 PP; Transitional and Non-transitional; 2 NJ Credits: 2 General Winning Cases in Federal Court Thursdays, June 20 and 27; 6-9 p.m. 6 NY Credits: 2 Ethics; 2 Skills; 2 PP; Transitional and Non-transitional; 6 NJ Credits: 2 Ethics; 4 General An Overview and Prospective on the Key Provisions of the American Taxpayer Relief Act of 2012: What it Means for You… What it Means for Your Clients
Tuesday, June 25, 2013; 6-9 p.m. 3 NY Credits: 3 PP; Transitional and Non-transitional; 3 NJ Credits: 3 General Construction at the World Trade Center and Related Legal issues Wednesday, June 26, 2013; 6-8 p.m. 2 NY Credits: 2 PP; 2 NJ Credits: 2 General An Introduction to US Immigration Law: The Basics and More Wednesday & Thursday, July 10 & 11, 2013; 6-9 p.m. 6 NY Credits: 2 Ethics; 2 Skills; 2 PP, Transitional and Non-transitional; 6 NJ Credits: 2 Ethics; 4 General Bridge the Gap 1 Consecutive Fridays, July 12 & 19, 2013: 9 a.m.-5 p.m. 16 NY Credits: 3 Ethics; 7 PP/LPM; 6 Skills; transitional and Non-transitional; 16 NJ Credits: 3 Ethics; 13 general New Jersey Bridge the Gap Monday and Tuesday, July 15 & 16, 2013; 9 a.m.-5 p.m. 15 NJ Credits in 5 of 9 specified practice areas; 16 NY Credits; breakdown tbd NYCLA’s CLE Institute courses now available for New Jersey MCLE Credit New York County Lawyers’ Association’s CLE Institute is currently certified as an Accredited Provider of continuing legal education in the State New Jersey.. NYCLA’s CLE Institute now Approved as a Provider of Continuing Professional Education for accountants and CPAs. Check our website at www.nycla.org for applicable courses. Please note that Tuition Assistance is available for qualified attorneys for live programs offered by the CLE Institute. Check our website at www.nycla.org for more information and how to apply for Tuition Assistance. Check our website for course details, faculty, complete program descriptions and pricing.
June 2013 / The New York County Lawyer
June 2013 / The New York County Lawyer
MESSAGE FROM LEWIS TESSER PRESIDENT OF THE NYCL A FOUNDATION Why did you become a lawyer? Many of you who have been in CLE courses with me know that I like to ask, “Why did you become a lawyer?” By now, we have had many thousands of responses, and, of course, the responses have varied. “I had a role model who was a lawyer,”“I thought it would be a good way to make a living,”“I liked to argue,”“It was a good way to make use of my analytical skills,”etc. But, by far, there was one answer that predominated: THE #1 ANSWER I wanted a job where I could help people.
we asked it at NYCLA or would that answer be so often given if asked of all lawyers? My guess is— both. Lawyers, I think, are attracted to the profession because of a generosity of spirit and the belief that we are all enhanced by the rule of law. NYCLA, in particular, was founded over 100 years ago as the great inclusive bar association. It has been dedicated for all these years to helping people and I believe that we members have been drawn to NYCLA because we share that client-oriented approach.
Wow! Does that answer resonate because
The NYCLA Foundation is a major component of our ability to continue our mission. What is the Foundation? It is a fund-raising arm of NYCLA and I am honored to serve as its President this year. HERE’S ONE THING THE FOUNDATION SUPPORTS — The Edith I. Spivack Fund for Women in Law and Society. Established in 2005, it supports activities sponsored by NYCLA that further equal opportunity for women. The Foundation has many other projects (which I’ll highlight in future articles).
PLEASE LET ME HEAR FROM YOU Why did you become a lawyer? Write to me at Ltesser@tesserryan.com. I’m told that I’ll have this column for a while. Let’s have a discussion. I’m happy to include some of your answers and comments in future articles. And in the meantime, please go to www.nycla.org and choose “Giving to NYCLA.” It doesn’t matter how much you give. What does matter is that you say, “I want a job where I can help people.” Go Team.
Zubulake’s e-Discovery: The Untold Story of My Quest for Justice By Yitzy Nissenbaum, Esq.
Laura Zubulake, a name associated with the most renowned e-discovery decisions, wrote a book giving an intimate view as to her motivations and experiences concerning her gender discrimination lawsuit against the Wall Street Bank UBS. She clearly delineates in her book that her goal in bringing the lawsuit was not to change the legal landscape, but rather it was a choice to seek the vindication of her career, as her highly successful career on Wall Street was cut short because of her termination from UBS. Nevertheless, her David versus Goliath story led to the transformation of the legal landscape with respect to discovery, specifically ediscovery.
Ms. Zubulake provides an interesting birds-eye view of her viewpoint of the case. She very vividly describes the intricacies of Wall Street culture and her personal experience working on the emerging market, Asia (excluding Japan), sales desk. The author walks the reader through her decisions to file an EEOC complaint, to file a lawsuit, and the reasons for each step in her litigation decisions. Throughout the book she describes her experiences through trial and settlement, including discussions of her perspective and reactions to each of the Zubulake decisions. Though, overall the book provides valuable lessons for both lawyers and anyone entering into high stakes litigation, the book is not without flaws or seeming peculiarities. For example, although she acknowledges her attorney, James R. Hubbard, in her preface, she only refers to him as her Lead Trial Attorney throughout her description of the trial events, which seems a bit odd. Neither does she mention the firm or names of the attorneys who represented her during discovery. Additionally, in describing her involvement in the case she acknowl-
edges that her lawyers made important decisions predetermining her responses, yet, she doesn’t really describe what those decisions were. Moreover, the author, at times, seems compelled to add information to simply fill the pages, whether it is needlessly referring to Plato (mythology), commenting on how she allowed herself two glasses of Chilean wine per day throughout litigation, or by attempting to add sophistication to her book by attaching a historical quotation to each chapter.
A point worthy of mention is that Ms. Zubulake’s description of a “claw-back” agreement. While her description was correct at the time of her case, it is presently, and at the time the book was published, more akin to what is now considered solely a “quick peek” agreement. A “claw-back” agreement is now considered as a different type of agreement. Her description correctly aligns with one of the Zubulake decisions, Zubulake v. UBS Warburg, Inc., 216 F.R.D. 280, 290 (S.D.N.Y. 2003), that a “claw-back” agreement would allow parties to forgo privilege review with an understanding that any inadvertently produced privileged documents be returned. Nowadays, litigants enter into “claw-back” agreements so that any inadvertently produced privileged document can be clawed back without waiving privilege. A “claw-back” agreement does not mean that the party will forgo any privilege review, and in line with Ms. Zubulake’s assessment of a “quick peek”agreement there is a heightened risk to that type of agreement. See “The Sedona Conference Cooperation Guidance for Litigators & In-House Counsel,” Cooperation Point # 12, at p. 15 (March 2011). On the whole the book teaches some valuable lessons and dismisses some myths surrounding the case. She elaborates on how involved she was at every stage of the discovery process, which is
an extremely important consideration for both lawyers and clients. As she points out, no one has a better understanding of the key players, elements or etc. regarding internal documents more than the plaintiff itself. However, despite this exhortation, it is more likely advisable that not all clients should be involved, as the author was in her case, in which she performed the review of documents, attended numerous depositions, and essentially directed every step of the litigation.
Ms. Zubulake also points out that the Court’s adverse inference instruction to the Jury had played no role in the Jury’s decision, dismissing the myth that she only won because of the adverse inference. This is significant because the verdict was the ultimate vindication of her decision to sue UBS, since by filing suit she effectively knew she would be unable to get another job.
While Ms. Zubulake describes each of her victories throughout the book, she does not shy away from describing her setbacks and low points during the litigation, specifically the Zubulake IV decision. She notes that her decision to pursue an adverse inference at that stage had been conducted prematurely and without fully understanding the criteria necessary for such an inference. The result put her in a position of weakness and hurt her chances, at that point in the litigation, of achieving a favorable settlement. Her account of that mistake offers an invaluable lesson to attorneys seeking an adverse inference. It seems all too common an occurrence nowadays for a party to seek an adverse inference, but unless the party can prove that evidence was destroyed willfully, a party must be wellprepared to show the relevance of the missing/lost evidence. On the whole, the book does offer other important lessons and pitfalls that liti-
gants can avoid. One specific lesson is the all too common error that seems to be perpetuated with respect to AttorneyClient Privilege. Often organizations and individuals rubber-stamp a communication as being Attorney-Client Privileged, in order to protect the communication, when there is no attorney on the communication, and alternatively when there is nothing privileged concerning the communication. Logically, this error can be extended to where an attorney is added onto a non-privileged communication, in an effort to protect the communication. In summation, the book provides Ms. Zubulake’s particularly interesting perspective, demonstrating her struggles throughout the litigation, and on the whole provides several worthwhile and valuable considerations and lessons.
Yitzy Nissenbaum, Esq., a NYCLA member, is a practicing attorney in New York, and chairs the E-Discovery Subcommittee of NYCLA’s Federal Courts Committee.
June 2013 / The New York County Lawyer
Forum on Marriage Equality: Will the Defense of Marriage Act and California’s Proposition 8 be Invalidated? By Laury A. Betha, Esq.
On Monday, April 29, NYCLA’s Federal Courts, Lesbian, Gay, Bisexual and Transgender (LGBT), and Matrimonial Committees held a forum, The Supreme Court’s Arguments in Windsor and Hollingsworth and the Future of Marriage Equality, on the marriage equality cases argued on March 26 and 27, 2013 in the United States Supreme Court.
At issue in United States v Windsor, Docket No. 12-307, is whether section 3 of the Defense of Marriage Act (DOMA)(1 U,S.C. §7) violates the Equal Protection Clause of the Fifth Amendment because, without even a rational basis, DOMA denies married samesex couples the benefits of the complete federal estate tax relief enjoyed by heterosexual married couples. (see Pamela S. Karlan, Resp. Br., United States v Windsor, 4, Same-sex Marriage Deep Dive, available at http://www.oyez.org, last visited May 6, 2013).
In 2009, Edie Windsor was required to pay $363,053 in estate taxes upon the transference of the estate of her late spouse Thea Spyer. As explicated in respondent’s brief, she otherwise would not have paid these federal estate taxes, but for the fact that she was married to a woman rather than a man. (see id). Both the Southern District of New York and the Court of Appeals for the Second Circuit ruled in favor of Ms. Windsor and ruled that DOMA was unconstitutional. Ms. Windsor seeks an affirmance of the Second Circuit decision, and a tax refund of $363,053 plus penalties and interest.
Hollingsworth v. Perry, 133 S. Ct. 786 (2012) (Mem.) involves the constitutionality of the
2008 California statute known as Proposition 8, which was passed by voter initiative and added a new article to the California Constitution, Article I § 7.5, providing that marriage is between a man and a woman only. Proposition 8 has been challenged as violative of the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the U.S. Constitution because it requires that the State of California deny marriage to same-sex couples based on sexual orientation classification. (see David Boies, Resp. Br. on the Merits, Hollingsworth v Perry, at 5, Same-Sex Marriage Deep Dive, available at http://www.oyez.org, last visited May 6, 2013).
Proposition 8 was invalidated in a decision by Judge Vaughn Walker, Jr., formerly of the Northern District Court of California, which decision was affirmed by the Ninth Circuit. Perry v Brown, 671 F.3d 1052 (9th Cir. 2012). Respondent seeks an affirmance from the U.S. Supreme Court.
In introducing the panel, Vincent Chang, Esq, the moderator, and a partner in the litigation and dispute resolution group at Wollmuth Maher & Deutsch, LLP, said that the purpose of this forum is “to salute” the lawyers who briefed the marriage equality cases before the Supreme Court, and to recognize NYCLA’s long public commitment to being in the “forefront of civil rights and gay rights in particular.”
The panel consisted of Richard J. Bettan, Esq., of counsel at Boies Schiller & Flexner, LLP, Joshua D. Kaye, Esq., an associate in litigation at Paul Weiss, LLP, Ria Tabacco Mar, Esq., assistant counsel in the Economic Justice Practice at the NAACP Legal
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Defense and Educational Fund (NAACPLDF), Susan Sommer, Esq., Director of Constitutional Litigation at Lamda Legal in New York and Director of Youth Programs to Prevent Homelessness among LGBT Youth, and Jeffrey S. Trachtman, Esq., litigation partner at Kramer Levin Naftalis & Frankel LLP and former head of Kramer Levin’s Pro Bono Committee.
The panelists briefed the issues for respondents in Windsor or Hollingsworth. All have been involved with civil rights litigation and most LGBT litigation for years. Ms. Sommer of Lambda filed the amicus curiae brief in support of Hollingsworth. (see Gary D. Busek, Br. Amici Curiae Lambda Legal Def. and Educ. Fund Inc. and Gay & Lesbian Advocates & Defenders, available at http://scotusblog.com/casefiles/cases/hollingsworth-v-perry, last visited May 6, 2013)
In many respects, this panel can be referred to as the “lawyers’ lawyers” when it comes to litigation of LGBT issues at the state, and federal, trial and appellate courts. First, Mr. Chang asked the panelists for the highlights of litigating the marriage equality cases.
Mr. Bettan was on the pre-trial and trial teams representing defendant Perry in Perry v Schwarzenegger 704 F.Supp.2d 921 (N.D. Cal. 2010), as well as one of the brief writers for the appeal to the Ninth Circuit in Perry v Brown. (Perry v Brown became Hollingsworth v Perry when Governor Brown refused to defend Proposition 8.) Mr. Bettan worked closely with firm partner David Boies, Esq. in developing key aspects of the trial strategy, and in crafting the appellate briefs. Mr. Bettan believes that
while there was “criticism for bringing the [district court] case at that time,” now there has been a significant shift in public opinion regarding the acceptance of LGBT marriage equality rights as constitutionally based, and he believes that the “district court case helped usher in the change in attitudes on marriage and LGBT [couples].”
Joshua D. Kaye was on the litigation team at Paul Weiss for Windsor. He was one of the brief writers on the certiorari petition to the Supreme Court, and on the brief for respondent. Mr. Kaye stated that his case and legal strategy were affected when the executive branch decided not to defend DOMA, but he also believes that “public opinion is friendly” in comparison to the previous litigation at the trial and appellate courts. His chief concern in this matter is for his client, Ms. Windsor, who is now 83. He states, “she deserves to see a decision on her case.” Ria Tabacco Mar filed an amicus brief on behalf of the NAACP-LDF. (see Sherrilyn Ifill, United States v Windsor, Br. Amicus Curiae NAACP Legal Def. & Educ. Fund Inc., available at http://scotusblog.com/casefiles/cases/windsor v united states (last visited May 6, 2013). She stated that the LDF has been out front on LGBT issues since 1996 filing amici briefs in Romer v Evans, and challenging the prevailing opinions among Americans, in general, and AfricanAmericans in particular, regarding LGBT equality.
She analogizes Hollingsworth to Loving v Virginia, 388 U.S. 1 (1967) because “the same legal arguments regarding [negative outcomes] for children” and issues of
(See Defense of Marriage Act on page 12)
June 2013 / The New York County Lawyer
RECENT EVENTS Supreme Court Committee Hosts Law Day Luncheon
On Friday, May 10 at the Association’s annual Law Day Luncheon at Cipriani Wall Street, Hon. Robert S. Smith, Associate Judge of the New York Court of Appeals, was presented with the Justice Louis J. Capozzoli Gavel Award.
Left to right: NYCLA Supreme Court Committee Co-Chairs Brian Graifman and Pamela Gallagher; Hon. James M. McGuire, Partner, Dechert LLP, Former Associate Justice, Appellate Division, First Judicial Department; Justice Louis J. Capozzoli Gavel Award Honoree, Hon. Robert S. Smith, Associate Judge, New York State Court of Appeals; Stewart Aaron, Partner, Arnold & Porter LLP, immediate past NYCLA President; and Hon. Zachary W. Carter, Partner, Dorsey & Whitney LLP, Former U.S. Attorney for the Eastern District of New York, who delivered Law Day remarks.
Over 800 Connections Made at NYCLA Speed Networking Event At NYCLA’s Speed Networking event hosted by its Young Lawyers’ Section on April 17, nearly 100 attorneys were matched up and met with one another during eight rounds of six minute meetings and a networking reception.
The Justice Louis J. Capozzoli Gavel Award is presented to Hon. Robert S. Smith, Associate Judge, New York State Court of Appeals by Hon. James M. McGuire, Partner, Dechert LLP, Former Associate Justice, Appellate Division, First Judicial Department.
Gavel Award Honoree, Hon. Robert S. Smith, Associate Judge, New York State Court of Appeals is congratulated by Hon. Jenny Rivera, Judge, New York State Court of Appeals.
Members Meet and Greet at Cinco de Mayo Event On May 6 the Young Lawyers’ Section hosted a Mexicanthemed meet and greet event in celebration of Cinco de Mayo where attendees enjoyed cocktails featuring Don Julio tequila.
Supreme Court Marriage Equality Cases Discussed at Forum Ria Tabacco Mar, Assistant Counsel in the Economic Justice Group at the NAACP Legal Defense and Educational Fund, Inc. participates in panel discussion at the April 29 forum, The Supreme Court’s Arguments in Windsor and Hollingsworth and the Future of Marriage Equality. This program, co-sponsored by NYCLA’s Federal Courts and LGBT Committees, and Matrimonial Law Section, provided attendees with an insider view on the Supreme Court cases of United States v. Windsor and Hollingsworth v. Perry, both of which challenge the laws that define the institution of marriage as it has traditionally been understood: as a union between one man and one woman.
June 2013 / The New York County Lawyer
UPCOMING EVENTS All events, unless otherwise noted, will be held at NYCLA Home of Law, 14 Vesey Street. Visit the Association’s website, nycla.org for more details, schedule changes and additions, and to R.S.V.P. for events, which are subject to change.
Non-Profit Opportunities – General Counsel and Board Member June 11 - 6 p.m. Sponsored by the Non-Profit Organizations and Women’s Rights Com mittees and the Young Lawyers’ Section This educational event will feature guest speaker Lesley Rosenthal, best selling author of the recent book, Good Counsel: Meeting the Legal Needs of Non-Profits. Ms. Rosenthal’s book is a first-of-its kind comprehensive roadmap about finding career pathways in law, arts and non-profit management. Attend and learn from an expert about how to become a general counsel in a non-profit or a candidate for the board of directors, plus have the exclusive opportunity to buy her newest book and get it signed.
Federal Courts Committee Summer Party June 17, 2013 – 6 p.m. Battery Gardens Restaurant at Battery Park Sponsored by the Federal Courts Committee Purchase of tickets ($65) includes an open bar and a full three course dinner overlooking the New York Harbor. Reserve your space with Vince Chang (firstname.lastname@example.org) and simultaneously mail your check to Vince Chang, Wollmuth Maher & Deutsch LLP, 500 Fifth Avenue, New York, NY 10010. Be sure to make all checks payable to NYCLA.
Asian Americans on the Bench: A Celebration June 19 - 6 p.m. Sponsored by NYCLA’s Federal Courts Committee and the American Bar Association of New York (AABANY) This special event will honor two newly appointed Asian American federal judges, Lorna Schofield and Pamela Chen. Hon. Lorna Schofield is the first Filipino American appointed to the federal bench and Hon. Pamela Chen is the first only gay Asian American appointed to the federal bench.
Summer Kickoff 2013 June 21-6 p.m. Sky Room, 330 W 40th Street Sponsored by NYCLA; Brooklyn Bar Association; the Asian American Bar Association of New York; the Puerto Rican Bar Association of New York Join us as we kickoff the summer season at Sky Room, the highest roof deck bar in NYC! Meet up with old friends and make new ones while enjoying beverages, appetizers, and an unparallel view of the greatest city in the world. Be sure not to miss out on the networking event of the year! Reserve your space today! Payment will not be accepted at the door. $26 for members of the sponsoring organizations; $35 for non-members (includes admission, two drink tickets, and appetizers).
Civil Court Practice Section Annual Dinner June 27-6-9 p.m. Fino Wall Street, 1 Wall Street Sponsored by NYCLA’s Civil Court Practice Section Reserve your space for this event that will celebrate and honor the supervising and administrative judges of the civil court, past and present. Hon. Sheila Abdus-Salaam, Justice, Court of Appeals and Hon. Fern A. Fisher, Deputy Chief Administrative Judge for NYC Courts will present awards honoring: Hon. Darcel D. Clark, Justice, Appellate Division, First Department; Hon. Paul G. Feinman, Justice, Appellate Division,
First Department; Hon. Judith J. Gische, Justice, Appellate Division, First Department; and Melvin C. Levine Distinguished Service Award Recipient, Antonella Tropea, Associate Court Clerk, Civil Court of the City of New York, New York County. Tickets: $155 per person; $85 per person for Public Service Sector; Table of 10: $1,550.00
July Lunch with a Judge: 21st Annual Program for Summer Associates Tuesdays, June 18, June 25, July 2, July 9, 12:30 – 2 p.m
Sponsored by NYCLA’s Young Lawyers’ Section Topics include: • Arguing A Motion and Settlement Techniques: The Road Not Taken; • Ethical Issues for Young Lawyers: How to Avoid Reading About Your Disbarment in the Law Journal; • Appropriate Courtroom Behavior: Law and the Real Order-T.V. Fiction vs Reality; and Cross Examining a Witness: • To Ask or Not to Ask, What is the Right Question?
10 June 2013 / The New York County Lawyer
LIBRARY NOTES To make suggestions about books, databases or other NYCLA Library matters, please contact Dan Jordan, Director of Library Services, by email at email@example.com or by phone at 212267-6646, ext. 204.
Feeling Stressed? Fearing Burnout? These topics cross our minds from time to time, either in relation to ourselves or in regards to our co-workers and professional friends.
Work-Life Balance: There is no dearth of literature out there addressing the topic but many of us can hardly find the time to read some of the many blogs, articles, books or other items available. Below are short descriptions of some items I looked up to prepare this edition of Library Notes.
Professionals and Work-Life Balance From WebMD www.webmd.com/balance/guide/5-strategies-for-life-balance 1. Build downtime into your schedule
2. Drop activities that sap your time and energy 3. Rethink your errands 4. Exercise 5. Remember that a little relaxation goes a long way
Work Life Balance: Tips to Reclaim Control - From MayoClinic.com http://www.mayoclinic.com/health/worklife-balance/WL00056 1. Married to your work? Consider the cost. Fatigue Lost time with friends and family Increased Expectations 2. Strike a better work-life balance Track your time Take advantage of your options Learn to say no Leave work at work Manage your time Bolster your support system Nurture yourself 3. Know when to seek professional help
JD Bliss - Balancing Life and Law www.envoyglobal.net/jdbliss/test/calculator2.htm Attorney Work Life Balance Calculator Calculates office hours needed to reach your billable hours goal. Work/Life Balance Makes People Cry - ByDavid Lat above the law.com/2013/04/worklife-balance-makes-people-cry/ The usually snarky but entertaining David Lat recently wrote a gentle article about participants at a NALP Conference Session on this topic. His article began by quoting, and praising, Sonia Sotomayor’s memoir, My Beloved World, “having it all, career and family, with no sacrifice to either… is the myth we would do well to abandon, together with the pernicious notion that a woman who chooses one or the other is somehow deficient.” The article then covers the NALP session and some of the comments from the participants.
Six Steps for Creating Greater WorkLife Balance for Lawyers – By Jatrine Bentsi-Enchill, J.D. www.expertlaw.com/library/practice_ma nagement/work_balance.html 1. Begin your balance journey by figuring out what your values and priorities are 2. Identify your balance “blockers” 1. Living for the expectations of others at work and at home 2. Consistently putting the needs of others before your own 3. Fear of change 4. Hung up on appearances 5. Perfectionism 3. Balance your mind 4. Create “non-negotiable” time blocks in your schedule at least twice per week 5. Consider hiring a professional coach 6. Create a vision I ask any NYCLA members who has achieved Work-Life balance to drop me a note at DJordan@nycla.org. Once I
(See Library Notes on page 14)
Electronic Research Center CLE Programs Unless otherwise noted, courses are free and open to the public. Register at nycla.org. Questions? Contact Irina Chopinova at firstname.lastname@example.org or 212-267-6646 x203. June
Lexis: I June 4 – 11:00 a.m. – 12:00 p.m. 1 MCLE Credit: 1 Skills; Transitional
Lexis: Research Update June 4 – 12:30 – 1:30 p.m. 1 MCLE Credit: 1 Skills; Transitional Lexis: Expert Witness Research June 4 - 2:00 - 3:00 p.m. 1 MCLE Credit: 1 Skills; Transitional
Westlaw: Introduction to Westlaw Next June 11 – 10-11 a.m. 1 MCLE Credit: 1 Skills; Transitional
Westlaw: Introduction on Business Law on Westlaw Next June 11 - 11:30 a.m.-12:30 p.m. 1 MCLE Credit: 1 Skills; Transitional
U.S. Bankruptcy Court Electronic Case Filing System June 19 – 10 a.m.-12:30 p.m. 2.5 MCLE Credits: 2.5 Skills; Transitional (Also NJ) Member: $65 Non-member: $85 Non-legal Staff: $35
Using Bloomberglaw.com for Litigation June 20 – 10 - 10:50 a.m. 1 MCLE Credit: 1 Skills; Transitional (Also NJ)
Using Bloomberglaw.com for a Corporate Transactional Practice June 20 - 11:05 - 11:55 a.m. 1 MCLE Credit: 1 Skills; Transitional (Also NJ)
Westlaw: Advanced Research on Westlaw Next June 26 - 1:30 - 2:30 p.m. 1 MCLE Credit: 1 Skills; Transitional
Westlaw: Real Property Law Research on Westlaw Next June 26 – 3 - 4 p.m. 1 MCLE Credit: 1 Skills; Transitional
Lexis: II July 23 – 12:00 – 1:00 p.m. 1 MCLE Credit: 1 Skills; Transitional Lexis: Litigation July 23 - 1:30 - 2:30 p.m. 1 MCLE Credit: 1 Skills; Transitional
Westlaw: Introduction to Westlaw Next July 10– 10-11 a.m. 1 MCLE Credit: 1 Skills; Transitional
U.S. Bankruptcy Court Electronic Case Filing System July 24 – 10 a.m.-12:30 p.m. 2.5 MCLE Credits: 2.5 Skills; Transitional (Also NJ) Member: $65 Non-member: $85 Non-legal Staff: $35
Lexis: I July 23 – 10:30– 11:30 a.m. 1 MCLE Credit: 1 Skills; Transitional
Westlaw: NY Materials Law Research on Westlaw Next July 30 – 3 - 4 p.m. 1 MCLE Credit: 1 Skills; Transitional
Westlaw: Trusts & Estates Law Research on Westlaw Next July 10 - 11:30 a.m.-12:30 p.m. 1 MCLE Credit: 1 Skills; Transitional
Westlaw: What’s New on Westlaw Next July 30 - 1:30 - 2:30 p.m. 1 MCLE Credit: 1 Skills; Transitional
The “Volitional Conduct” Requirement for Direct Copyright Liability of Internet Service Providers
By Alicia Tuckfelt, Esq.
The relevance of copyright law parallels the exponential and infinite growth of technology. Among the pillars of such growth are online and Internet service providers. As a general definition, service providers are entities that connect users of a website to share and transmit digital online materials, which materials are of the users’ choosing, and which the entity does not modify. See 17 U.S.C. §§ 512(k)(1)(A) & (1)(B). YouTube, Google, and Verizon are just some examples of service providers. This article considers the liability of service providers for ride copyright infringement in the absence of the Digital Millennium Copyright Act (DMCA).1
Direct copyright infringement occurs when one, without authorization, reproduces, distributes, displays, or performs a copyrighted work, or prepares a derivative work based on a copyrighted work.2 See17 U.S.C. § 106. In the case of liability arising on the Internet, service providers may be liable for direct copyright infringement for their copying of
copyrighted materials, which actions they take on behalf of their users. However, service providers are not liable for such direct copyright infringement based on those unauthorized acts, alone. See Wolk v. Kodak Imaging Network, Inc., 840 F.Supp. 2d 724, 742 (S.D.N.Y. 2012).
Rather, in order to be held liable, the defendant service providers must have engaged in some “volitional conduct” in connection with the infringing conduct. See Religious Tech. Ctr. v. Netcom On-Line Commc’n Servs., Inc., 907 F. Supp. 1361, 1370 (N.D. Cal. 1995). Conceivably, in Religious Tech. Ctr., this concept was based on the notion that the traditional strict liability of copyright law would cause the entire Internet to commit an act of direct infringement for activities that cannot reasonably be deterred, especially where there is already a party directly liable for causing the unauthorized copies to be made—the user of the service provider’s website. See Id. at1372.3
Thus, the crux of service providers’ liability lies in the definition of “volitional conduct,”
in contrast to a passive role. Unsurprisingly, this is a nuanced area. The Second Circuit, in deciding the highly influential case of Cartoon Network v. CSC Holdings, (colloquially known as the “Cablevision case”), adopted the volition requirement from other Federal Circuits. See Cartoon Network, LP LLLP v. CSC Holdings, Inc., 536 F.3d 121, 131 (2nd Cir. 2008); see also Religious Tech. Ctr., 907 F.Supp. at 1370; costar Group, Inc. v. LoopNet, Inc., 373 F.3d 544, 550 (4th Cir.2004). Under the standard articulated in the Cablevision case, volitional conduct is that which “causes” an infringing act to occur. Cartoon Network, 536 F.3d at 131.This requires some conduct that “actively” violates a plaintiff’s exclusive rights. Arista Records, LLC v. Usenet.com, Inc.,633 F.Supp. 2d 124, 148 (S.D.N.Y. 2009). In Cablevision, an issue arose when Cablevision’s customers made unauthorized copies of materials by using Cablevision’s recording devices. The Second Circuit found that although
Cablevision had “design[ed], hous[ed], and maintain[ed]” the recording devices, it was Cablevision’s customers who “made” the copies and therefore directly infringed the plaintiff’s reproduction rights. Cartoon Network, 536 F.3d at 131. Cablevision’s customers made these copies by causing a command to be issued directly to Cablevision’s system, which automatically obeyed that command; and therefore, the court reasoned, Cablevision engaged in no volitional conduct. In the absence of human volition by Cablevision, there was no direct copyright infringement by Cablevision. See Id.at 131. That is, the ownership and providing of the recording device is insufficient to give rise to direct infringement. Id.at 130 (internal citations and quotations omitted) .It was only Cablevision’s customers who were directly liable.Id.at 131-32.
Similarly, in Wolk, the court found that there was no volitional conduct where defendant service providers’ subscribers used the defendants’ automated software to create (See Copryright Liability on page __)
June 2013 / The New York County Lawyer 11
NYCLA Comments on and Supports Issues NYCLA frequently reports, comments on, and supports issues affecting the New York City legal community and has recently commented on or supported the following issues: • NYCLA President and President Elect respond to NY Daily News article on Judge Scheindlin and Stop-and-Frisk
• Justice Center Advisory Board Issues Summary Report on 2013 U.N. Commission on the Status of Women Meeting • NYCLA issues statement on Miranda and Other Rights of Dzokhar Tsarnaev
• Justice Center Advisory Board Sends Letter to Members of the Working Group on the Issue of Transnational Corporations and Other Business Enterprises on the Subject of Trafficked Persons
• Matrimonial Law Section Submits Comments to OCA on the Proposed Amendment of 22 NYCRR 202.16(g) regarding expert disclosure
• Civil Rights & Liberties Committee and Criminal Justice Section Send Letter to New York State Senator Bill Perkins in Support of Video Taping of All Police Interrogations
Learn more on the News & Publications section of nycla.org.
NYCLA In The News NYCLA in the News A roundup of recent national and local news stories featuring NYCLA and its members
New York Law Journal and nylj.com Incoming President Pledges to Nurture NYCLA’s ‘Inclusive’ Role May 22, 2013 The New York Law Journal profiled NYCLA’s incoming President, Barbara Moses, and covered her background and her goals for her upcoming term. Associated Press NY ‘Frisk’ Judge Calls Criticism ‘Below-the-Belt’ May 19, 2013 NYCLA was included as a thoughtleader in this story, about criticisms around Judge Scheindlin’s rulings, that was picked up by outlets across the country.
New York Law Journal and nylj.com Judge in Stop-and-Frisk Lawsuit Relishes Her Independence May 17, 2013 Media outlets have recently attacked stop-and-frisk rulings by Judge Shira Scheindlin. This Law Journal article covers the latest on this topic and includes mention of a letter NYCLA sent to the Editor of the New York Daily News. It says, “The New York County Lawyers’ Association wrote to the New York Daily News on May 15 to protest an article reporting that an “internal report” by the mayor’s office purporting to show that Scheindlin is biased against law enforcement because she has ruled against the police in nine of 15 written search-and-seizure opinions she has issued since 1994. In its letter, NYCLA argued that the report was misleading because it did not consider her suppression decisions from the bench. Moreover, NYCLA wrote, “Judges are not supposed to grade on the curve. They are supposed to decide cases on their merits,” and the report didn’t consider the merits of Scheindlin’s rulings.”
New York Law Journal and nylj.com NYCLA Hosts Essay Contest Winner May 16, 2013 This article features a photo from NYCLA’s Annual New York City High School Essay Contest Awards ceremony.
Law360.com NY The Likely Loser As Strike Pits Lawyer Against Lawyer May 15, 2013 The Co-Chair of NYCLA’s Taskforce on Judicial Budget Cuts, Michael Miller, is quoted in this article about anger over cuts to legal services budgets and unionized attorneys representing low-income clients who went on strike.
New York Law Journal and nylj.com NYCLA Honors Judge Smith May 14, 2013 This article features a photo from NYCLA’s May 10 Law Day Luncheon during which Court of Appeals Judge Robert S. Smith was honored with the Justice Louis J. Capozzoli Gavel Award.
New York Law Journal and nylj.com Forensic Evaluator Proposals Attract Wide Range of Opinions May 14, 2013 NYCLA’s Matrimonial Law Section is quoted in this cover story about the three competing proposals on who should have access to forensic evaluation reports in child custody cases, and under what terms, since it submitted its opinion to the Office of Court Administration on this topic. The article says, “The New York County Lawyers’ Association’s Matrimonial Law Section told OCA that “allowing any child to review or read the forensic report would be detrimental to the child. Accordingly, if any rule is to be implemented regarding the child’s access to the forensic materials, it should preclude the child from reading such materials.”
The Committee on Professional Ethics accepts both written and telephone inquiries on ethics matters and provides advisory opinions. For additional information, call the members listed below. June 1-15 Alison Parker 352-215-5400 June 16-30 Bruce Kelly 212-715-1080
July 1-15 Ronald Minkoff 212-705-4837 July 15-31 Joseph Vogel 212-997-7634
Please Note: Assignments are subject to change.
Questions to the Hotline are limited to an inquiring attorney’s prospective conduct. The Hotline does not answer questions regarding past conduct, the conduct of other attorneys, questions that are being litigated or before a disciplinary committee or ethics committee, or questions of law. This notation shall not be construed to contain all Hotline guidelines. For a full discussion of Ethics Hotline guidelines, please see the article below, “Guidelines on NYCLA’s Ethics Hotline,” published in the September 2006 issue of New York County Lawyer.
12 June 2013 / The New York County Lawyer
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(Continued from page 7)
“stigmatization” are present in Hollingsworth. Ms. Tabacco Mar argued that heightened scrutiny is the proper review
She stated that the line of cases from Loving forward has also developed the equal protection law for marriage rights which is important to any decision on the merits in Hollingsworth. In response to a question about the significance of slavery to equal protection law, Ms. Tabacco Mar noted that while “slavery was sui generis to African Americans,” she stated that Brown v. Board of Education, 347 U.S. 483 (1954) is nonetheless relevant to gays and lesbians because it laid the foundation for equal protection law and the development of the four-factor equal protection test.
Susan Sommer is a veteran litigator in the area of LGBT equality. She was involved in the litigation of Lawrence v Texas, 529 U.S. 558 (2003) which struck down state sodomy laws and overturned Bowers v Hardwick, 478 U.S. 186 (1986). She was counsel before the New York State Court of Appeals in Hernandez v Robles, 7 N.Y. 3d 338 (2006), the marriage equality case predating the passage of the New York State marriage equality statute.
Before filing an amicus brief in Hollingworth, she assisted with the development of a line of employment law cases, Pedersen v Office of Personnel Management, 881 F. Supp. 2d 294, 318 (D. Conn. 2012); Gill v Office of Pers. Mgmt., 699 F. Supp.2d 374 (D. Mass. 2010); and Golinski v Office of Personnel Management, 824 F.Supp.2d 968 (N.D.Cal. 2012) challenging the application of DOMA to tax laws, social security, pension and federal health insurance benefits for same-sex spouses. She stated that the Supreme Court could have accepted certiorari on either the marriage cases or the employment law cases. According to Ms. Sommer, the employment law cases have been stayed pending a decision in Windsor.
Jeffrey S. Trachtman, was co-counsel with Lambda on Hernandez cases, as well as several other New York cases concerning recognition of out-of-state marriages. He was involved with a number of other LBGT pro bono matters earlier in his career. He noted that the founding named partner Arthur Kramer was the brother of Larry Kramer of “The Normal Heart,” Act-UP, and one of the founders of the Gay Men’s Health Crisis (GMHC). Thus, Kramer Levin’s commitment to LGBT issues is both personal and professional. Mr. Trachtman filed an amicus brief that challenged the religious opposition to marriage equality. He argued that there has been a change in mainstream religion, and that no religious institution should impose sacred views on the secular institution of marriage. Mr. Trachtman stated that many mainline religions including Episcopalians, and Lutherans have clerics at churches who signed-on to the amicus brief lending further credibility to the religious challenge at the federal level.
A continuous theme throughout the forum was the change in attitudes in the direction of marriage equality, and away from religious and moral arguments and acceptance of nebulous civil unions or domestic partnerships. Consistent with the legal arguments made in respondents’ and amici curiae briefs, there was substantial debate at the forum on the technical legal issues of statutory review. Is rational basis review enough to strike down DOMA and Proposition 8, or should the statutes be subject to heightened scrutiny because marriage is a fundamental legal right and because LGBT persons have been subject to classifications based on ani-
mus? (see Boies, Resp. Br. Hollingsworth v Perry, 27-51). There was agreement among the panelists that the time is now for the high court to weigh in on the marriage equality cases.
According to Ms. Sommer, while DOMA became law in 1996, its application did not become relevant until 2004 when the Massachusetts Supreme Court ruled that its state marriage laws could not discriminate against LGBT couples seeking marriage licenses in Massachusetts. According to Ms. Sommer, there are so many issues that are “simple, [and] straightforward [that] people can easily grasp.” She gave the example of the failure to notify the surviving spouse when the other spouse dies in military combat. The breadth of DOMA is “distinct” and can have broad application, she stated.
Of course, there was the elephant in the room. The panel chose to spend little time on the arguments for and against standing or Article III requirements for prosecuting an action in federal court. (see INS v Chadha, 462 U.S. 911, 919, 935-36 (1983). In oral argument, the Supreme Court required significant presentation on whether the petitioners had Article III standing. (see United States v Windsor, oral argument, available at available at http://scotusblog.com/casefiles/cases/windsor v united states (last visited May 6, 2013). The Bipartisan Legal Advisory Group of the House of Representatives (BLAG), comprised of certain congressional leaders, may not have a legally cognizable injury necessary to bring an action in federal court. Pursuant to the power delegated by Congress, the Attorney General and the Department of Justice of the Executive Branch are charged with enforcing the laws. BLAG as part of the Legislative Branch may not meet the jurisdictional requirements to defend DOMA, leaving the controversy without the requisite adverseness. In this instance, the court would not reach the merits of the case, and would reverse the decisions of the Second Circuit and the Southern District Court of New York for lack of standing. Hollingsworth is different because the California District Court decision could stand based upon California’s interpretation of standing regarding voter initiatives. A group representing the voters can challenge the reversal of the state law in federal court. Also, California Governor Jerry Brown did file a brief at the district court stating that the California executive branch would continue to enforce Proposition 8 until ordered not to enforce the statute. (see Boies, Resp. Br. Hollingsworth v Perry, at 18).
Recognizing this difficulty, Mr. Bettan stated that it could be a win for marriage equality on “narrow grounds.” Proposition 8 would be stricken, but the Hollingsworth decision would be limited to California.
All the panelists agreed that speculation on the outcome of the cases is not helpful, and that it is best to wait for the high court’s decision rather than guessing at the outcome.
In response to the question, where will marriage equality cases be in ten years, Mr. Trachtman and Ms. Sommer stated that there are more cases to be argued regarding DOMA, should the statute stand. Also, in the next ten years there will be a “state-by-state evolution on marriage equality” and LGBT civil rights in general. Indeed, in the short period since the forum several states have enacted, or are strongly considering the enactment of, marriage equality laws. Laury A. Betha, Phd., Esq. is a member of NYCLA’s Federal Courts and LGBT Committees. She is a solo-practitioner with the Law Office of Laury A. Betha in Fort Lee, NJ. She works collaboratively in New York with George Bundy Smith & Associates, P.C.
June 2013 / The New York County Lawyer 13 By Pamela Gallagher, Esq. and Brian D. Graifman, Esq.
The 2013 Attorneys’ Guide to Civil Practice
The Committee on the Supreme Court is pleased to have issued, for the 18th time, its annual publication, the Attorneys’ Guide to Civil Practice in the New York County Supreme Court. It is our Committee’s view that every serious practitioner in this court, especially new attorneys, should have a copy of this year’s edition of the booklet.
As the court itself acknowledges, New York County Supreme Court is quite a complicated place. It has a large caseload, but filings in the court are not processed in a central clerk’s office because the layout of the courthouse has prevented the establishment of such an office. Indeed, the court is compelled to function out of four separate facilities. Thus, there are many separate “back offices” with which attorneys must deal every day, not to mention various additional offices of the County Clerk. Also, the court remains the principal venue for implementation of the state court system’s electronic filing program, which has an impact on dealings between the Bar and the court. The court operates a number of programs, such
Thus, there is much information about court operations and procedures with which the practitioner needs to be familiar in order efficiently and effectively to navigate through the courthouse and its many parts and the County Clerk’s Office. This is where the Attorneys’ Guide comes in.
The Guide endeavors to provide virtually everything the practitioner needs to know in order to master the existing complexities and deal with the court in a painless but effective way. The Guide contains a comprehensive listing of the locations and phone numbers of all the Justices of the court and their assignments, as well for all the offices of the court and the Office of the County Clerk. The Guide describes each back office and its role in overall operations, as well as key programs and procedures. It explains, for example, how an attorney should commence a case, both in paper (where allowed) and electronically; how a Request for Judicial Intervention should be filed; what
leaving a desire for more detail. Highlight injustice suffered by your client and why he or she deserves the relief sought.
Persuasive Legal Writing (Continued from page 1)
find language flow. Excessive repetition is boring and diverts the reader from your argument.
Achieve logical flow by preventing your audience from making assumptions about what you mean. Transitional words, such as although and however, can guide the court through your thoughts. Use them to link together sentences, paragraphs and sections and keep your reader moving forward toward your conclusion. Invite with your Introduction The introduction is so important that, despite its place at the head of your papers, you should write it last. Writing the body of your papers first allows you to reflect on your arguments, consider your position’s strengths and cohesively bring them out in your introduction.
A powerful introduction is an essential component of compelling papers. It introduces your theme, grabs the reader’s attention and prepares the reader for the arguments that follow.
Put yourself in the judge’s position and consider what would convince you to keep reading beyond that initial paragraph. Briefly reference your most salient facts,
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as Mediation I and Mediation II and the Differentiated Case Management effort, that significantly affect how cases move through the courthouse to trial.
Put your Best Foot Forward Determine which of your arguments is the most compelling and put it up front. Like a good introduction, a strong first point will encourage the reader to continue. If you start with your weakest argument, you risk having the reader lose interest in your papers, and trust in you, before you have had a chance to show your hand. If possible, end with your secondstrongest argument and place the weakest in between them. People tend to best remember what they hear first and last. Cushion a weaker argument between two stronger ones to give it support and control what is memorable. Construct Purposeful Paragraphs The purpose of your paragraphs is to organize and explain your arguments. Paragraphs guide your reader through larger ideas by breaking them down into smaller, digestible parts.
Begin each paragraph with a powerful introductory sentence. Follow that with sentences that explain the idea introduced. Conclude each paragraph with a sentence that reminds the reader of the paragraph’s point and includes a transition into the next.
or e-mail us at email@example.com
should be done about cases thought to be related; how to file a proposed order to show cause; jury selection; how correctly to file motion papers; and the like. The configuration and structure of individualized court Parts and judicial assignments are explained. This year, we have included new chapters on references and Article 81 cases. The Guide also highlights a number of important recent developments that will directly affect practitioners, such as changes to the e-filing program and new procedures regarding notification of case events.
graphs of the Justices of the court, including those who recently joined the court. In addition, there are appendices of important documents.
The Guide once again provides extensive biographical information about and photo-
Pamela Gallagher, Esq. and Brian D. Graifman, Esq. are the Co-Chairs of the
Further, the Guide describes the court’s approach to preliminary conferences and other conferences, Differentiated Case Management and the discovery process, pre-trial proceedings generally, Mediation I and II, and other ADR projects. It explains all of the key litigation-related functions of the County Clerk’s Office, including such important things as how to commence a case under seal or an anonymous caption and how to obtain a judgment and have it entered.
Each paragraph should contain a single, cohesive idea. Avoid cramming in an idea only tangentially related just for the sake of getting it into the papers. Take the time to flesh out a separate paragraph about that idea. Stay organized or risk distracting your reader from your points. Command Credibility with your Tone As your tone of voice influences how people react to you in conversation, the tone of your writing will influence your credibility with the court. Too much aggression, hyperbole or condescension can distance the court from you. Too informal an approach might leave the court feeling disrespected.
A successful tone is relaxed yet formal, poised but conversational. Leave the court with the impression that it is being invited into a discussion about the subject at hand, one about which you just happen to have a convincing argument.
Advocate as you Break Up your Text Topic headings, distinguished from body text by a larger font or bold type, are a perfect place to advocate. Assume that your reader will glance at them prior to fully reading your papers. Instead of using general headings that might apply to an issue from either side, construct headings that advocate your client’s position. Use them as one-liners to get the reader on your side.
The Committee urges all NYCLA members who handle civil cases in New York County Supreme Court to obtain a copy of the Guide. We are sure practitioners will find it worth their while. Ordering is easy - - one need only go to NYCLA’s website (www.nycla.org) and follow the directions given there. Despite the wealth of information made available in this booklet, the cost is only $ 50 ($100 for non-members), which is, frankly, a very good deal. Ordering a copy is a winning strategy all the way around—the Guide benefits practitioners and, indirectly, their clients; it conserves the time of court and County Clerk staff, who are saved from having to address the questions answered by the Guide; and, last but by no means least, it is a wonderful way to support NYCLA. Please order a copy today. We greatly appreciate your support.
Topic headings can also help to visually break up your text. A lengthy set of papers is more attractive to read when presented in clearly divided sections that can be individually absorbed.
Organize and Edit Take the time to organize and edit your work before you deem it your final draft. Go back and review your arguments, looking for holes to fill and anticipating roadblocks to acceptance of your position. Think about the structure that you have created and ask yourself whether it best compels your desired result.
Make sure that your spelling, grammar and sentence structure are proper. Revisit your paragraphs to ensure cohesiveness and eliminate redundancy. If anything is unclear, rewrite it! Give the proper attention to these details to ensure that you maintain credibility with the court and help your papers stand out from the crowd.
Shira Laskin, Esq. is a litigator with an emphasis on family and estate law. Her background includes editorial work for educational publishing house Rosen Publishing. Shira is an avid writer both inside and outside of the legal community and provides legal writing services to other attorneys in addition to her own practice. Shira can be reached at firstname.lastname@example.org.
14 June 2013 / The New York County Lawyer
The Effective Negotiator (Continued from page 1)
juice to drink.5 When parties focus on asserting positions, the negotiation process generally reaches a quick impasse because conflicting positions are hard to reconcile. The story about the orange shows that while stated positions are often irreconcilable, the interests underlying those positions may be shared or compatible. Thus, lawyers may facilitate the negotiation process by helping clients look behind explicit and concrete positions to find underlying interests or concerns that are unexpressed and intangible. A basic technique to identify interests is to examine each position a client is taking by asking “why.” Establishing the “empathy loop,” as discussed above, will help in acquiring information from clients that are reluctant to reveal their true interests. The same exercise should be repeated to figure out the possible interests underlying the positions stated by the negotiating counterpart.6 Understanding what the other side really wants will provide you with leverage in the actual negotiation.
Evaluate Priorities In almost every negotiation each side will have multiple interests and concerns. The most powerful interests are basic human needs, such as: security, economic wellbeing, a sense of belonging, recognition, and control over one’s life.7 The chances of reaching an agreement are considerably increased by taking care of these fundamental concerns that motivate all people. Parties may also be interested in continuing a business relationship with the counterpart, avoiding litigation costs or setting a legal precedent, avoiding bad publicity that may come from a trial, etc. After sorting out the various interests of each side in separate lists, lawyers should ask clients to prioritize their interests and provide input on what the priorities might be for the other side. Since the real conflict between parties resides in competing interests, rather than positions, opportunities for leverage or finding a mutually agreeable solution may reside in the level of importance clients attribute to interests that appear to be in conflict. Analyze Your Client’s BATNA BATNA, or best alternative to a negotiated agreement, is a good base line against which any proposed agreement may be measured. Helping clients discover and understand their BATNA is important because it will protect them from accept-
Library Notes Continued from page 10)
receive it, I may share your secret with our fellow NYCLA members.
********************************* Interesting legal research Tid-Bit: The book, Municipal Tort Actions, has a handy chart in Table 4, page 215. The chart includes information on 26+ municipal entities in the New York City area, listing the time periods for the Notice of Claim and time periods for initiating actions for personal injury and wrongful death with reference to the specific statute for the each particular entity. If you are wondering about these matters in relation to the Staten Island Rapid Transit Operating Authority (SIRTOA), the NYC Water Board, the
ing terms that are too unfavorable, or rejecting terms that they should accept.8 In the deal-making context, lawyers should inquire what efforts the client has made to explore available business alternatives and why any alternatives found would be less attractive.When negotiating to settle a dispute, lawyers should provide clients with information about the likelihood of success of their claims. An assessment of the expected value of a case is generally obtained by calculating “the sum of possible outcomes, each weighed by the odds that a particular outcome will in fact be the result.”9 That figure should then be measured against litigation fees and expenses as well as other transactional costs. Clients should also be counseled about potential reputation damage deriving from a trial, and whether, in fact,they would be able to collect any damages awarded.
Consider the Other Side’s BATNA Lawyers should work with clients to identify the other side’s BATNA.The alternatives available to the other side provide a measure of that party’s perceived leverage and potential willingness to cooperate during the negotiation. In deal-making, considerable information can be learned before the negotiation by contacting sources in the industry, reviewing relevant business publications and annual reports, asking questions informally of people working for the counterpart, or asking your clients what interests, preferences, and needs they would have if they were in their counterpart's position.10 Remember, you are the lawyer, but your client is the professional in the industry; that knowledge is critical to assessing the BATNA.
Set Specific Goals and Bottom Lines Lawyers should counsel clients in setting target points for selling, buying, or settling that are specific, optimistic, and justifiable. Targets that are specific will keep the negotiator more focused on his/her interests, than on the game played by the negotiating counterpart. In addition, optimistic targets are effective vis-à-vis the other side as a means to project power and show confidence, butonly if they can be justified according to some independent standards.11Remember that the client on the other side is also in the industry. Unrealistic goals may sound offensive or betray weakness. Lawyers can help clients identify objective criteria to buttress optimistic targets by researching market value, legal precedent, professional standards, industry practices, etc. Equally important is setting a reservation point or LIRR, or a myriad of other entities, this is the list for you.
********************************* Fee-Based Services Are you looking for Records and Briefs? Do you need to reconstruct NYCRR provisions from 1985? You have a citation to an old treatise and don’t know where to find a copy of the book? Do you need legislative history materials on a New York or other state Statute? Do you need some legal research services to help you get started on a project? Do you need to find an expert witness or some expert testimony? Do you need a search of Public Records or a DnB report on a business? Do you need and old case or today’s “decision of interest” from the New York Law Journal?
bottom line, that is, the minimum acceptable level the client requires to say “yes” in a negotiation.12 However, when your counterpart says the words “this is our bottom line,” it is unlikely that you will be hearing the truth. That is why thorough research into the other party’s BATNA, as discussed above, is critical. Discuss “Anchoring” Lawyers should also explain clients the technique of “anchoring,” which consists of fixing the focus of discussion around a certain point or value simply by asserting it.13 This technique plays on the human tendency to be influenced by what someone says. As a result, an extremely high or low figure is likely to frame the negotiation even if it cannot be justified. Clients should be aware that they, or the other side, can be subject to this technique, which may yield strong psychological advantage. However, the efficacy of making a first offer should be evaluated on a case-by-case basis.
Generate Value-Creating Options When clients perceive negotiation as competing over the distribution of a fixed sum of value, their goal is to claim as much of that value as possible, at the expense of the other side. However, lawyers can change clients’ perception of negotiation as a zerosum game by generating options that add value to a negotiated agreement for both sides. In the story about the orange, each girl would have ended up with less of what she really wanted if the mother had simply cut the orange in half instead of taking into account the girls’ underlying interests. Lawyers may use the information gathered about the parties’ interests, concerns, and priorities and design tradeoffs to claim the things their clients value the most, while giving up items that are less critical. Of course, interests cannot always be integrated in a perfect and efficient way. However, lawyers may counsel clients in generating creative options that would benefit the negotiating counterpart by satisfying that party’s needs, at little cost to their client.14 A classic example would be offering an apology. Often clients are mired in positions because they think that the other side is “wrong.” The satisfaction of receiving an apology may be a powerful incentive to settlement. Interviewing the client purposefully will often reveal if this is the problem creating an impasse. Prepare for the Execution of the Negotiation. Most negotiators develop a strategy for the negotiation by contemplating a mix of problem-solving and competitive bar-
Just call the NYCLA Library at 212-2676646, x204 or send us an email at Reference@NYCLA.org. Day in and day out, the NYCLA Library staff offers fee-based services to NYCLA members and the wider bar. Library Services are not inexpensive but offer good value and timely service.
On-site services at 14 Vesey Street include free access to Westlaw and Lexis and there is no charge for computer printing. The library has an extensive collection of print, digital, and microform resources. Twenty-three terminals are available from 9 a..m until 8 p.m., Monday through Thursday, and from 9 a.m. until 6 p.m. on Fridays. Experienced and knowledgeable staff members are available during most hours of Library operations. Contact Djordan@nycla.org if
gaining techniques tailored to their clients’ goals and leverage. If the client will participate in the negotiation, lawyers should discuss roles at the table ahead of time. In addition, clients should be counseled on how to use their emotions strategically, that is, by stating how the other side’s actions made them feel rather than making accusatory statements which would only create tension. Lawyers also need to advise clients on what information they should or should not disclose to the other side.
Finally, lawyers should prepare a list of questions to improve their understanding of the other side’s interests and priorities, and be prepared to consider any new tradeoffs that may lead to a negotiated agreement based on mutual gain. Learning to interview clients, using their knowledge as an asset, and proper preparation are integral parts of successful negotiations. Clara Flebus, Esq., LL.M., a NYCLA member, is an Appellate Court Attorney in New York Supreme Court, and Secretary for Arts for Peace, a 501 (c) (3) charity, for which she negotiates on a regular basis. She is a member of NYCLA’s Appellate Courts, Arbitration and ADR, and Foreign & International Law Committees, and Young Lawyers’ Section.
References: 1 Colleen M. Hanycz, Strategic Negotiation:Moving Through the Stages, in COLLEEN M. HANYCZ, TREVOR FARROW & FREDERICK ZEMANS, THE THEORY AND PRACTICE OF REPRESENTATIVE NEGOTIATION, 11 (Emond Montgomery Publications 2008). 2 See Leonard L. RISKIN& JAMES E. WESTBROOK, DISPUTE RESOLUTION AND LAWYERS, 88-89 (West Publishing 2009). 3 See Rober H. MNOOKIN, SCOTT R. PEPPET& ANDREW S. TOLUMELLO, BEYOND WINNING – NEGOTIATING TO CREATE VALUE IN DEALS AND DISPUTES, 63-65 (Harvard University Press 2000). 4 See Douglas STONE, BRUCE M. PATTON & SHEILA HEEN, DIFFICULT CONVERSATIONS – HOW TO DISCUSS WHAT MATTERS MOST, 7-9 (Penguin Books 2010). 5 SeeHanycz,supra note 1, at 13-14. 6 See Roger FISHER, WILLIAM URY& BRUCE PATTON, GETTING TO YES, 42-46 (Penguin Books 2011). 7 Id. at 50. 8 See Fisher, supra note6,at 102. 9 MNOOKIN, supra note 3, at 109. 10 See Michael WATKINS, HARVARD BUSINESS ESSENTIALS - NEGOTIATION, 18-19 (Harvard Business School Publishing 2003). 11 See G. RICHARD SHELL, BARGAINING FOR ADVANTAGE, 28-30 (Penguin Books 2006). 12 Id. at 30. 13 See Gary Goodpaster, A Primer on Competitive Bargaining, 1996 J. DISP. RESOL.325, 351 (1996). 14 See Fisher, supra note 6, at 58-61.
you would like a tour or an opportunity to chat about how the NYCLA Library can help your practice.
Advice and training are available concerning off-site services that are available to qualifying NYCLA members. Send Dan Jordan a note if you want more information about these services, email@example.com. Questions of the week: “I am looking for a copy of the Pakistani Constitution.” Request satisfied within ten minutes.
“I am looking for a list of American state and local Bar Association s.” Request satisfied within ten minutes. What is your question?
June 2013 / The New York County Lawyer 15
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Copyright Liability of ISPs (Continued from page 10)
unauthorized copies of plaintiff’s photographs. There, the subscribers selected photographs to be uploaded and printed, and the defendants’ software automatically created the prints. The court found that the automated conduct of software was not “volitional.” Id. at 733.
On the other hand, a service provider may be liable for direct infringement where its “contribution to the creation of an infringing copy [is] so great that it warrants holding that party directly liable for the infringement, even though another party has actually made the copy.” Capitol Records, LLC v. ReDigi Inc., No. 12 Civ. 95 (S.D.N.Y. March 31, 2013). In the very recent case of Capitol Records, the Southern District found direct liability
Exercise Caution (Continued from page 2)
user to determine whether a surety is authorized to conduct business in the State of New York.
Unless all the requirements are followed, a property owner or municipality may end up having to pay twice.
In the Bergassi Group, LLC matter, Con Ed now faces exposure to Qualcon’s subcontractors for the amount of their respective
Meet Barbara Moses (Continued from page 3)
the ABA did not admit black lawyers. In 1997, we spearheaded the campaign to raise the fees of 18(b) lawyers, which was necessary to improve the quality of defense afforded to indigent defendants, and in 2000 filed a lawsuit to make that happen. In 2003, we called for marriage equality for same-sex couples, and in 2010, NYCLA spoke out forcefully in favor of the right of all faiths, including Islam, to build houses of worship near the World Trade Center site, in the same neighborhood as the Home of Law. In March of this year we issued a timely and clear-eyed white paper analyzing pending federal gun control legislation. Our report, authored principally by Jacqueline Wolff, who is a member of our Board of Directors, asked two key questions on each proposal: could it have prevented one or more of the many mass shootings that have horrified the nation in recent
of ReDigi, whether the system is programmed specifically to select only protected materials.
against ReDigi, an online marketplace that allowed for the resale of lawfully acquired digital music. Id. A ReDigi user could upload her lawfully obtained music onto ReDigi’s system, and during that process, the user’s copy was simultaneously deleted from the user’s computer. ReDigi’s software would then scan the user’s computer for any additional copies of the music, and it would suspend the user’s account if any additional copies were found. Id. at 1. There, the court found that this was unlawful copying and that ReDigi acted with volition, i.e., its contribution to the infringement was sufficient. Although that process itself was automated, ReDigi had programmed its software to specially select the copyrighted material, which rendered the case “indistinguishable” from “human review of content.” Id. at 12. The court emphasized that ReDigi’s service allowed only for the resale of copyrighted works (unlike the Cablevision case where the programming offered a mix of both protected
and public television), that ReDigi brokered the sales among the users who were seeking to purchase music and potential sellers, and ReDigi made a profit on the sales. Id.
liens, in addition to the funds already paid to Qualcon. The outcome may have been different had the plaintiffs been served with the discharge bonds, and if Con Ed waited the 10 day statutory period that a party has to challenge the Certification of Qualification/Solvency. Arguably, if Con Ed should have noticed deficiencies within the discharge bonds, then the plaintiffs should have. In this case, however, Con Ed made payment to Qualcon before the 10day period expired, and also did nothing to ensure that the plaintiffs were served with copies of the discharge bonds, before making payment to Qualcon.
Matthew D. Stockwell, Esq., is Counsel to Lowenstein Sandler LLP in New York and New Jersey. He specializes in construction litigation, with a particular focus on contract negotiations and preparation, payment disputes, defects/faulty workmanship and insurance coverage. He can be reached at 212.262.6700 or firstname.lastname@example.org.
did not submit any documentation concerning the project, and therefore the court could not determine whether Con Ed had a contract with a public entity to perform the work. If not, the plaintiffs would not have any lien rights, because a private improvement lien cannot be filed on public property. 3 Plaintiffs, of course, could still pursue claims for trust fund diversion, which renders any actively involved officer or director of the offending company individually liable for the unpaid contractor’s loss, and is generally not dischargeable in bankruptcy. 4 Section 19, which addresses the discharge of private liens, and Section 21, public improvement liens, contain identical requirements for a discharge bond.
days after issuance, was cited favorably by the Attorney General of the United States. Meanwhile, NYCLA’s Committees, Sections, and Task Forces are busy studying developments in the law, commenting on proposed rule changes, presenting CLE programs, hosting social and networking events, and otherwise providing the processional camaraderie members expect, and get, at NYCLA. It’s an exciting place to be at an exciting time in history.
stump me. Luckily, my husband is a mathematician, so he can keep up with that side of the curriculum at least. I love to travel with my family, and we try to take a trip together at least once a year. Sometimes I combine family and professional activities. In June, my 11-year-old is coming to Cooperstown with me for a meeting of the House of Delegates of the New York State Bar Association. She won’t be voting, but I think she will love the Farmer’s Museum and some of the other local attractions. And sometimes, when I need to let it all go, I work on my skills on the flying trapeze. I discovered this sport on a vacation a few years ago, and although I will never qualify for the big top — I think I started a bit too late in life — I got hooked on the challenge and the excitement that comes from defying gravity, even temporarily. I think everyone needs to go beyond their comfort zone from time to time, and for me, the trapeze definitely qualifies!
years, and is it constitutional? Even more recently, two days after Boston Marathon bombing suspect Dzokhar Tsarnaev was apprehended, NYCLA issued a statement strongly defending the rule of law and explaining why it would be a mistake in this (or any other) case to deny an American citizen the due process rights written into the Constitution. NYCLA is quick to respond to issues in a principled manner, and stands behind the causes it cares about. For example, our Rapid Response Team does just what its name advertises: it responds rapidly — usually within a single news cycle — to improper ad hominem attacks on judges, often in politically fraught cases. Most recently, the Rapid Response Team rebuked one of the tabloids for its unfair personal attacks on judges who have ruled adversely to the Police Department in stop-and-frisk cases. The recent gun control report was researched, written, vetted by the full board and approved in a matter of a few months—and within
In all, the line between volitional and passive conduct appears blurry, as the cases struggle to keep pace with technology. Clearly, knowledge of infringing acts does not amount to volition, nor does developing and maintaining a system that can be readily used to directly violate copyright law, or knowledge that the system is being so used. An important factor is whether the service provider’s programming is automated, although the fact of an automatic system (as opposed to a human-operated one) does not exonerate a defendant from direct liability. Although this seems to be a dynamic distinction, the most clear-cut difference among the cases seems to be whether the defendant’s system is capable of copying both protected and non-protected materials, or, as in the case
References: 12013 NY Slip Op 30398(U). 2 The work was being performed on a public road. However, there was insufficient evidence in the record for the court to determine whether this was a public or private project, since Con Ed
Q. The NYCLA community knows you as a lawyer and a professor. What do you like to do when you’re not working or volunteering at the Association? A. I do have a life outside of work and NYCLA! But I admit that sometimes something has to get short shrift—and it is usually sleep. My husband and I have two daughters in middle school, and that means parent-teacher nights, piano recitals, and homework assignments that, I confess, are beginning to
Alicia Tuckfelt, Esq. is a member of several NYCLA committees, including Cyberspace Law, Entertainment, Intellectual Property & Sports Law, and Young Lawyers Section. She is a founding partner of Ontell & Tuckfelt, LLC. Her focus is on copyright, trademark, and small business practice. You can reach her at email@example.com.
1 The DMCA avoids changing the underlying law, and in many cases, the DMCA’s safe harbors may not apply. 2 “The word ‘copying’ is shorthand for the infringing of any of the copyright owner’s exclusive rights, described” in 17 U.S.C. § 106. S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081, 1085, n.3 (9th Cir. 1989). 3 This sentiment was codified in the DMCA which immunizes service providers from liability when the service providers play a passive role and otherwise qualify for certain safe harbors. See 17 U.S.C. §512.
16 June 2013 / The New York County Lawyer
Newspaper for lawyers, judges, and law students in the New York City area