COUNTY LAWYER NEW YORK
Visit us at www.nycla.org
Year In Review
Well, the first year of my Presidency has come to a close. I have been honored and privileged to serve as President of NYCLA and am very much looking forward to next year and building upon all that has been accomplished during this past year. Over the past year, NYCLA has focused on increasing member satisfaction and value, as well as assisting its members in career building in these tough economic times. The Association also has made efforts to help the legal community network with one another, learn about relevant topics, and accomplish meaningful pro bono work. Within this issue, you’ll read about accomplishments achieved in 2011-2012 within our Membership programs, Continuing Legal Education; Pro Bono, and Justice Center programs; Research and Technology services; Public Policy initiatives; and our Task Forces and Working Groups, Foundation, and Committees. We improved our publications and developed new communications channels (such as LinkedIn groups), fostered our existing Committees and developed new ones, and enhanced and added new programs to our roster including networking events, Meet-Ups, Public Forums, WorkLife Balance programs, Practice of Law Series, and special events. To aid you in keeping up-to-date on relevant topics in the legal field, our Continuing Legal Education Institute not only partnered with other organizations to develop programs in specialty areas, but also developed training programs on
judges, court personnel, and practitioners; published two reports last August; conducted an electronic survey; and held an all-day public hearing and issued a Hearing Report. Through the great efforts of the Task Force, it has become clear to the New York legal community that the public’s access to justice had declined and efforts need to be made to restore funding. Stewart D. Aaron President, New York County Lawyers’ Association
technological advances to help you keep up with the latest advancements in the legal field. In the Library, NYCLA installed 25 new computers with wireless access and expanded its Westlaw subscription with new resources to help you meet your clients’ needs. NYCLA aims to advance the science of jurisprudence, and promote the administration of justice and legal reforms. It carried on in that tradition during 2011-2012 by advocating for justice for a variety of groups and individuals and through our pro bono projects, such as the Manhattan CLARO project and free walk-in clinics that provide advice on self-representation strategies. We advocated for an increase in judicial salaries by testifying at a public hearing, issuing statements, and adopting a resolution through our Judicial Section. Our Task Force on Judicial Budget Cuts made enormous efforts in shedding light on how the budget cuts are affecting the operation of the courts. It conducted extensive interviews with administrative
Our Committees and Sections, which deliver your membership experience to your individual practice areas, provided opportunities for our members to interact with one another and consider issues within their jurisdictions. With over 50 Committees and Sections, there is a group for everyone to join. At the 2012 Annual Meeting, the NonProfit Organizations Committee received the 2012 Eppler Award for its Report on Proposed Revisions to the New York Not For-Profit Corporation Law. Also, the 2012 Kobak Prize was awarded to the Young Lawyers’ Section for the development of engaging programs that combine legal education, career development, and networking. Finally, I am pleased to share that the NYCLA Foundation continued its fine work in fundraising for NYCLA’s programs and objectives. I thank the NYCLA Officers, the members of NYCLA’s Board of Directors, members, and NYCLA staff for helping to bring us to where we are today. I am certain that with optimism in the air and the drive of our staff and members, we will continue to achieve success in the year ahead, and make the legal community a better place for all of us and for our clients.
Volume 7/ Number 13
I N S I D E
Annual Meeting 11 Foundation Board Elects New Members
Meet the New Board of Directors 1 Year in Review 6 T A B L E O F C O N T E N T S Annual Meeting...............................11 CLE Programs...................................4 Committee News.............................12 Electronic Research Center CLEs...10 Energy Clause .................................13 Ethics Hotline....................................2 Events Calendar ................................2 Featuerd CLE Courses ......................4 Fee Dispute Amendment.................13 Foundation Board Elects New Members ...................................3 Library Notes ..................................10 Lunch with a Judge .........................14
Meet the New Board of Directors
Managing and Motivating Millennials.......................................12 Meet the New Board of Directors.....1
Elected at the May 2012 Annual Meeting were Stewart D. Aaron for another term as President; Barbara Moses for another term as President Elect; Lewis F. Tesser for another term as Vice President; Susan J. Walsh for another term as Secretary; and Carol A. Sigmond, who previously served as a Board Member, as Treasurer. New Board members elected to three-year terms are Adrienne B.
Koch, Felix Shipkevich, Asha Smith, Daniel K. Wiig and Alison Wilkey, while Jonathan Pressment was elected to a two-year term. We congratulate the incoming Board members and introduce the new members to you: Adrienne B. Koch Adrienne B. Koch, Partner at Katsky Korins LLP (formerly Esanu Katsky Korins & Siger, LLP) has been with the litigation department at the firm
since 1993, and has been a member of the firm since 1998. Her practice focuses primarily on business and commercial disputes, and in that connection she has appeared in federal and state courts in New York and in numerous other states and before arbitration panels both domestically and abroad. Koch received her B.A., with distinction, in 1987 from Cornell University, where she was elected to Phi Beta Kappa. She received her J.D. (cum laude) from (See New Board on Page 5)
Message from Barbara Moses, President of the NYCLA Foundation .3 Message from Stewart Aaron, President of NYCLA.........................1 NYCLA in the News.......................11 Predictive Coding............................10 Recent Events....................................8 What’s Tweeting................................2 Year in Review ..................................6
May 2012 / The New York County Lawyer
EVENTS CALENDAR All events, unless otherwise noted, will be held at NYCLA Home of Law, 14 Vesey Street. Visit the Association’s web site, nycla.org for more details, schedule changes and additions, and to R.S.V.P. for events, which are subject to change.
ing motion practice, preliminary conferences, pre-trial conferences, settlement conferences, and during trial.
Matrimonial Law Section Spring Cocktail Party June 6 – 6 p.m. Battery Gardens Restaurant, Battery Park NYCLA’s Matrimonial Section will honor the non-profit activist organization Lambda Legal and Susan Sommer, Lambda Legal’s Senior Counsel and Director of Constitutional Litigation, in recognition of their key roles in achieving same-sex marriage in the State of New York, at the Spring Cocktail party. The cost to members of the Matrimonial Law Section is $125.00 and to non-members, $175.00. Included are an open bar and hors d’oeuvres. Contact Charlotte Lee at email@example.com to reserve space.
Federal Courts Committee Summer Party June 18 – 6 p.m. Battery Gardens Restaurant, Battery Park Purchase of tickets ($65) includes open bar and dinner overlooking New York harbor. Tickets can be purchased by sending a check, made payable to NYCLA, to Gregg Kanter, Gregg H. Kanter Law Office LLC, 2222 Pine Street, Philadelphia, PA 19103.
Practice of Law Series: What Judges Want You to Know June 7 – 6 p.m. Hear insights from experienced attorney, Jeffrey Kimmel, Esq., on proper courtroom etiquette and behavior, and get important tips on what judges expect dur-
Young Lawyers’ Section and LGBT Committee Summer Kick-off June 19 – 6:30 p.m. Sky Room Times Square, 330 W. 40th Street, 33rd floor Enjoy complimentary appetizers and happy hour drink specials while meeting and mingling with other lawyers and law students at this rooftop members-only event sponsored by Kaplan Bar Review. Civil Court Practice Section Annual Dinner June 20 – 6 p.m.
SPQR, 133 Mulbery Street Hon. Fern A. Fisher, Deputy Chief Administrative Judge for NYC Courts will present awards honoring Appellate Term Justice, Hon. Martin Schoenfeld, Justice, Supreme Court, Appellate Term, First Dept; Supervising Judges of the Housing Court, New York County, Hon. Jean T. Schneider, Supervising Judge, Housing Court, New York County, Hon. Pam Jackman-Brown, Justice, Supreme Court, Queens County; Hon. Ernest J. Cavallo, Judicial Hearing Officer, Melvin C. Levine Distinguished Service Award Recipient, and Carol Alt, Chief Clerk, Civil Court of the City of New York.
July Lunch with a Judge NYCLA’s Young Lawyers’ Section is sponsoring this 20th annual program for Summer Associates, co-chaired by Hon. Helen Freedman, Associate Justice of the Supreme Court, Appellate Division, First Department, and Hon. Joan Madden, Justice of the Supreme Court, First Judicial
District. Cost: $50/lunch; *$180/series; Includes one year of NYCLA student membership. July 10 - 12:30-2 p.m. Appropriate Courtroom Behavior: Law and the Real Order - T.V. Fiction vs. Reality Speaker: Hon. Loretta A. Preska, Chief Judge, United States District Court, Southern District of New York July 17 – 12:30-2 p.m. Cross Examining a Witness: To Ask or Not to Ask, What is the Right Question? Speaker: Hon. Shirley Werner Kornreich, Supreme Court, New York County July 24 – 12:30-2 p.m. Ethical Issues for Young Lawyers: How to Avoid Reading About Your Disbarment in the New York Law Journal Speaker: Hon. Sidney Stein, United States District Court, Southern District of New York July 31 – 12:30-2 p.m. Career Paths: The Road Not Taken Speaker: Hon. Debra A. James, Supreme Court, New York County
NYCLA Calls for Security Pavilion Outside Courthouse In a resolution adopted at its May 14 Board Meeting, NYCLA is urging the federal government to provide adequate funding for the construction of a security pavilion outside the Moynihan Courthouse and to quickly implement the construction project. The security pavilion is being proposed because the United States Court for the Southern District of New York has unique security concerns and chal-
Ethics Hotline 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 July 1-15 Ron Minkoff Anne Loranger 212-705-4837 212-458-3174 June 16-30 Jim Kobak 212-837-6757
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 “Guidelines on NYCLA’s Ethics Hotline,” September 2006, New York County Lawyer, Vol. 2, No. 7. To view the article, visit NYCLA’s website at www.nycla.org, click on Ethics (on the left-hand side of the page) and then on Ethics Hotline.
lenges as it is the district in which two terrorist attacks have occurred and a number of high-profile terrorism cases have been prosecuted. It experiences 13,000 filings a year and 2,500 visitors a day. The District proposed in 2001 that a visitor security screening pavilion outside the Moynihan Courthouse be designed and such a design was prepared in 2009 but the federal funds to implement this project have not been provided.
May 2012 / The New York County Lawyer
MESSAGE FROM BARBARA MOSES PRESIDENT OF THE NYCL A FOUNDATION
In his annual Law Day address this year, Chief Judge Jonathan Lippman focused on the growing—and unmet—need among low-income New Yorkers for civil legal services. Hit with the “triple whammy” of a recession, a wave of foreclosures and evictions, and diminishing government funding for legal services, New York’s most vulnerable population is turning in ever-increasing numbers to bar associations, non-profits, and other public interest organizations for assistance.
NYCLA’s pro bono programs are designed to assist clients with a wide variety of
urgent legal problems. The Tax Court Pro Bono Project provides counseling to clients facing proceedings in U.S. Tax Court. Manhattan CLARO (Civil Legal Advice and Resource Office) is a freeweekly walk-in clinic, where volunteers provide advice to pro se litigants with consumer debt matters. Project Restore helps ex-offenders obtain vocational licenses. And the Legal Counseling Project provides counseling four times a month, by appointment, in the areas of family, employment, consumer bankruptcy and landlord/tenant law. Training is free to NYCLA members who have the requisite bar admissions. Volunteers learn new skills, make new contacts, and experience the very real satisfaction of helping vulnerable clients navigate the legal system.
Unfortunately, your dues do not pay all of the costs of NYCLA’s pro bono programs. That’s where the NYCLA Foundation comes in. Our mission is to support NYCLA, which we do, in part, by soliciting your contributions. The Foundation is recognized by the IRS as a 501(c)(3) organization and your donations are tax-deductible to the extent provided by law. You can make donations—in any amount you choose—simply by going to www.nycla.org and clicking on “Giving to NYCLA.”You can also mail a check, payable to “NYCLA Foundation,” to NYCLA Foundation, 14 Vesey Street, New York, NY 10007. We are grateful for every contribution, and are pleased to say “thank you” with a selection of DVDs, books, prints, and other gifts described on our web site. NYCLA needs both your support and your ideas. Please do not hesitate to contact me with suggestions for fundraising or related topics. You can reach me at firstname.lastname@example.org. Sincerely,
Barbara Moses President of the NYCLA Foundation
New Members Elected to NYCLA Foundation Board In the May 2012 issue, we welcomed the eight new and returning members to the NYCLA Foundation Board of Directors. Here, we would like to introduce the new members of the Foundation Board, Dyan Finguerra-Ducharme; Henry J. Kennedy; John J. Kenney; Michael J. McNamara; and Veronica E. Rendon: Dyan Finguerra-DuCharme Finguerra-DuCharme, Counsel at White & Case LLP, focuses her practice on intellectual property litigation, with an emphasis on trademark, trade dress, false advertising, and copyright disputes. In addition to her litigation practice, Finguerra-DuCharme manages large scale trademark vigilance programs, prosecutes trademarks globally and provides opinions regarding the availability of trademarks in the United States. She represents clients in a variety of industries, including luxury goods, pharmaceuticals, consumer products, power equipment, computer software, financial services, ecommerce and automobiles. She was recognized this year as a leading trademark professional in New York by World Trademark Review and has served on the Board of Directors of NYCLA for two terms and frequently speaks on NYCLA panels relating to trademarks and work/life balance issues. Finguerra-DuCharme is a graduate of Brooklyn Law School. Henry J. Kennedy Kennedy, Managing Attorney at Wilkie Farr & Gallagher LLP, provides procedural advice and counsel to attorneys in his firm’s litigation, bankruptcy, and private client departments. He currently serves as a NYCLA delegate to the NYS Bar Association House of Delegates and is a member of NYCLA’s Membership, Supreme Court, and Federal Courts Committees. Last fall, he chaired
One of the solutions that Chief Judge Lippman proposed—mandatory pro bono work as a precondition of admission to the New York bar—remains controversial. But the New York County Lawyers’ Association has long recognized both the need for and the importance of volunteer pro bono work by it members. Indeed, pro bono service is embedded in NYCLA’s mission statement, which commits our Association to promoting the public interest by “[e]nsuring access to justice for all” and “[a]rranging for the provision by its members of free legal services for indigent, low income and other persons in need.”
the Federal Courts Committee’s annual Edward Weinfeld Luncheon and he recently co-chaired the Supreme Court Committee’s Judicial Reception. He is also a member of the New York City and Richmond County Bar Associations. Kennedy is active with the Managing Attorneys and Clerks Association and has served on its Executive Committee for over 20 years. He has a continuing interest in court administration especially as it concerns electronic filing. He has served on a number of federal and state court committees regarding electronic filing, including OCA’s Attorney Advisory Committee. He is also a member of the Magistrate Selection Committee for United States District Court for the Eastern District of New York. Kennedy graduated from the University of Dayton and the Jacob D. Fuchsberg Law Center, Touro College. John J. Kenney Kenney, Partner at Hoguet Newman Regal & Kenney, is a former President of the Association and remains active. He is a trial lawyer, handling complex civil and criminal matters, generally involving banking, securities and business related transactions. He is formerly, the Executive Assistant U.S. Attorney in the Southern District of New York and a former litigation partner at Simpson Thacher & Bartlett. He is a fellow in the American College of Trial Lawyers. Kenney is a graduate of Fordham Law School. Michael J. McNamara McNamara is a Partner at Seward & Kissel LLP and Co-Head of the Litigation Department. He handles securities, employment, and commercial disputes for public and private companies, including banks and broker-dealers, in litigated matters in courts, arbitrations and
regulatory proceedings. He also advises companies and senior executives on executive compensation and employment law issues and he has lectured and written on those subjects. He currently serves on the Board of Directors of NYCLA, is a member of the House of Delegates of the New York State Bar Association, and a member of NYCLA’s Task Force on Judicial Budget Cuts. McNamara attended Columbia College and Fordham University School of Law where he was a Member of the Law Review. McNamara is admitted to the Bar in New York and has been admitted to practice in numerous courts, including the United States Supreme Court, the United States Court of Appeals for the Second Circuit, and the United States District Courts for the Southern and Eastern Districts of New York. Veronica E. Rendón Rendón is a partner in Arnold & Porter’s securities enforcement and litigation practice. She concentrates her practice on litigation, enforcement, and white collar criminal matters, with a primary focus on securities, professional liability, and financial transactions. She has successfully defended federal and state securities class action litigations; breach of fiduciary duty, suitability, and common law fraud claims; accountant and auditor liability matters; partnership disputes; minority shareholder disputes; as well as receiver, liquidator, and trustee actions, which often implicate the in pari delicto doctrine. Rendón has also efficiently and effectively defended investigations and enforcement actions brought by the U.S. Securities & Exchange Commission, the U.S. Department of Justice, and State Attorneys General, as well as the Public Company Accounting Oversight Board and the American Institute of Certified Public Accountants. She has a J.D. from the University of California, Hastings College of the Law and a B.A. from the State University of New York at Albany.
Stewart D. Aaron President
Sophia J Gianacoplos Executive Director
Ariella Greenbaum Editor Senior Communications and Social Media Manager
New York County Lawyer is published by Long Islander Newspapers under the auspices of the New York County Lawyers’ Association. For advertising information, call 631-427-7000. Mailing address: 149 Main Street, Huntington, NY 11743. Copyright © 2012 New York County Lawyers’ Association. All rights reserved. New York County Lawyers’ Association grants permission for articles and other material herein or portions thereof to be reproduced and distributed for educational or professional use through direct contact with clients, prospective clients, professional colleagues and students provided that such use shall not involve any matter for which payment (other than legal fees or tuition) is made and provided further that all reproductions include the name of the author of the article, the copyright notice(s) included in the original publication, and a notice indicating the name and date of the Association publication from which the reprint is made. Subscription rate: $10.00 per year for non-members New York County Lawyer is published monthly (except January and August) for $10 per year by New York County Lawyers’ Association, 14 Vesey Street, New York, NY 10007. Periodicals postage paid is mailed at New York, NY and additional mailing offices. POSTMASTER: Send address changes to: New York County Lawyer, 14 Vesey Street, New York, NY 10007-2992. USPS #022-995 ISSN: 1558-5786 $10.00 of membership dues is deducted for a one-year subscription to the New York County Lawyer.
Photo Credits Ariella Greenbaum Rick Kopstein Aurora Mendez
May 2012 / The New York County Lawyer
CLE INSTITUTE June CLE Programs Ethical Considerations in Time Management Wednesday, June 6; 6-8:05 p.m. 2.5 MCLE Credits: 1.5 Ethics; .1 Skills; Transitional and Non-transitional (also NJ) Representing and Doing Business with Chinese State-Owned Enterprises: What U.S. Lawyers Should Know Monday, June 11; 6-8 p.m. 2 MCLE Credits: 2 Professional Practice; Transitional and Non-transitional (also NJ)
E-Discovery and Ethics: Technology Assisted Reviews, Predictive Coding, The Judicial Role and Ethical Considerations Tuesday, June 12; 6-9 p.m. 3 MCLE Credits: 1 Ethics; 1 Skills; 1 Professional Practice; Transitional and Non-transitional (also NJ)
8 MCLE Credits: 2 Ethics; 5 Skills; 1 PP; Transitional and Non-transitional * a networking cocktail “Jamboree” will take place immediately following the program from 4:30-5:30 p.m.
Ethical Issues in Construction Law Practice Wednesday, June 13; 6-8 p.m. 2 MCLE Credits: 2 Ethics; Transitional and Non-transitional
Mentoring for Lawyers: How to Find the Best Mentor/How to Be the Best Mentor – And Become the Best Lawyer You Can Be Tuesday, June 19, 6:30 - 8:30 p.m. 2 MCLE Credits:1 Skills; 1 Professional Practice; Transitional and Non-transitional (also NJ).
Civil Rights Jamboree Friday, June 15; 9 a.m.-4:30 p.m. *
Practicing Law with an iPad Wednesday, June 20; 6:00 p.m. –7:40 p.m.
2 MCLE Credits: 2 Skills: Transitional and Non-transitional (also NJ) Winning Cases in Federal Court Consecutive Thursdays, June 21 and 28; 6–9 p.m. 6 MCLE Credits: 2 Ethics; 2 Skills; 2 Professional Practice; Transitional and Non-transitional Compliance Issues and Strategies: From Start-ups to Multinational Companies Wednesday, June 27; 6–9 p.m. 3 MCLE Credits: 1 Ethics; 2 Professional Practice; Transitional and Non-transitional
Featured CLE Courses In June This June, Winning Cases in Federal Court, co-sponsored by NYCLA’s Federal Courts Committee, returns to the CLE Institute. Joining Program Chair, Joel Silverstein, Stern & Kilcullen, LLC as co-chair this year is Hon. Lewis Kaplan, SDNY. The cochairs have assembled a panel of experts including Arthur Aufses, Kramer Levin Naftalis & Frankel LLP; Scott Berman, Friedman Kaplan Seiler & Adelman LLP; Sue Buckley, Cahill; Charles Cohen, Hughes Hubbard; Paul Hanley, Hanly Conroy Bierstein Sheridan Fisher & Hayes LLP; Stephen Hoffman, Wilk Auslander LLP; Gregg Kanter Gregg H. Kanter Law Office LLC; Thomas Marino, Dunnington Bartholow & Miller LLP; Veronica Rendón, Arnold & Porter; and Richard Williamson, Flemming Zulack Williamson Zauderer LLP, to explore the latest issues involved in federal court practice.
In addition, Judge Kaplan will provide his “View from the Bench” after each topic is introduced and discussed. Day 1 – June 21: The Trial • Commencing an action in federal court • Responding to a complaint • Seeking and opposing summary judgment • The trial of a civil case in federal court • An overview of post trial procedures, including post trial motions, commencing an appeal and enforcement of judgments Day 2 – June 28: Discovery • Overview of discovery methods and motions • Discussion of non-party discovery • Electronic discovery • Taking and defending depositions • Deposing experts
Access NYCLA CLE Programs Online, On-Demand Did you miss a live program at the CLE Institute? Access it at http://nycla.marinolegalcle.com. Select the program of interest and watch it at your convenience.
Join NYCLA’s Civil Rights and Liberties Committee for the first Civil Rights Jamboree on Friday, June 15. This full day workshop highlights the important issues and focuses on developing the required skills needed to participate in civil rights litigation. Morning Session: • Pleadings • Defenses, Practical Skills • Retainer Structure and Counseling • Ethics • Non-obvious aspects of civil rights discovery practice Afternoon Session: • Depositions • Depositions of State and Federal Agents • 50-H Hearing • Ethical Issues A Cocktail Jamboree networking reception will follow the program from 4:30 to 5 p.m.
NYCLA’s CLE Institute now an Accredited Provider in New Jersey New York County Lawyers’ Association’s CLE Institute is currently certified as an Accredited Provider of continuing legal education in the State New Jersey. Courses qualifying for CLE credit in New Jersey will be so designated on the NYCLA website. Be sure to consult www.nycla.org for program details and program locations. 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. Be sure to check our website for a complete listing of programs.
May 2012 / The New York County Lawyer
tures in the areas of witness preparation, successful management of litigation teams in large commercial matters and legal ethics, and is regularly asked to provide demonstrations of trial techniques at beginner and advanced trial advocacy workshops. Pressment received his J.D., cum laude, from Tulane University, and his B.A., with honors, from Boston University.
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Harvard Law School in 1990, and thereafter completed a judicial clerkship for the Hon. Mary M. Schroeder of the U.S. Court of Appeals for the Ninth Circuit. She is an active member of NYCLA’s Supreme Court Committee. Jonathan Pressment Jonathan Pressment is Of Counsel in the Business Litigation practice group in the Haynes and Boones LLP New York office. His experience includes the representation of numerous Fortune 500 companies in a variety of complex civil litigation matters. Pressment has extensive experience in all aspects of case commencement, discovery, motion practice, and trial practice in commercial litigation matters. In addition, he has experience as lead trial and appellate counsel for clients in matters pending before both federal and state courts. Pressment’s experience covers an array of practice areas, including breach of contract disputes, intellectual property, civil liberties, securities related litigation, professional liability, entertainment law, products liability, bankruptcy litigation, and cases involving allegations of commercial fraud. He frequently lec-
Felix Shipkevich Felix Shipkevich, Principal at Shipkevich PLLC, concentrates his practice on regulatory, transactional, and enforcement matters in the futures, commodities, and derivatives industries. Before going into private practice, Shipkevich was Vice President and General Counsel at Capital Market Services, LLC, prior to which he was an Associate at Morrison Mahoney LLP. He earned his J.D. from Hofstra University School of Law and his B.A. in Economics and Political Science from SUNY Binghamton. Shipkevich is admitted to practice in New York and Connecticut, as well as before the U.S. District Courts for the Southern and Eastern Districts of New York. He served as NYCLA Futures & Derivatives Regulation Committee Chair from 2008 until 2011. Asha Smith Asha Smith is a Staff Attorney in the Manhattan Office of the Legal Aid Society Criminal Defense Practice. A 2007 graduate of New York Law School, Smith joined
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NYCLA as a law student after being selected as an intern in NYCLA’s Minority Judicial Internship Program. Since becoming a NYCLA member, she has been consistently active at NYCLA, as a member of the Criminal Justice Section, the Justice Center, and as the current Chair of the Committee on Minorities and the Law. Daniel K. Wiig Daniel K. Wiig is an Associate at Mintz & Gold LLP, where his practice focuses primarily on commercial litigation. He began his legal career in the Commercial Division as a law clerk to Hon. Richard B. Lowe III, New York State Supreme Court, Commercial Division. He then served as law clerk to Hon. Eileen Bransten, also in the Commercial Division. Wiig has served as the Co-Chair of the Young Lawyers’ Section since May 2010. Prior to his appointment as Co-Chair, Wiig chaired the Section’s Subcommittee on the Judiciary, where he organized the successful “In Chambers” Program. In addition, he serves as Co-Chair of the New York State Bar Association’s Commercial Division Law Report Committee, which in partnership with the Office of Court Administration, publishes the Commercial Division Law Report. He is a cum laude graduate of Brooklyn Law School, where he was a Fellow of the Center for the Study of
International Business Law. He received an M.B.A. from Fordham University and B.A., cum laude, from St. John’s University. Alison Wilkey Alison Wilkey is currently a senior staff attorney at Youth Represent. Wilkey works with criminal justice system-involved youth—providing legal representation in criminal court, housing hearings, and educational and employment matters—to ensure that they are afforded every opportunity to reclaim lives of dignity, self-fulfillment, and engagement in their communities. She supervises Youth Represent’s legal staff and its Community Youth Reentry Project. Prior to joining Youth Represent in 2008, she worked as a staff attorney at the Criminal Defense Practice of the Legal Aid Society in Manhattan for four years. Wilkey is currently CoChair of NYCLA’s Criminal Justice Section. In that position, she has organized several public forums on issues such as bail and criminal court summons. She has also served on the Task Force on Judicial Budget Cuts and the Purpose and Mission Working Group. Wilkey also served on the Corrections Committee of the New York City Bar Association and currently sits on its Criminal Courts Committee. She is a graduate of Columbia Law School, where she was a Charles Evans Hughes Human Rights Fellow, a Harlan Fiske Stone Scholar, and was awarded the Jerome Michael Jury Cup.
May 2012 / The New York County Lawyer
2011-2012: Year in Review The following was extracted from the 2011-2012 Annual Report. NYCLA aims to keep its nearly 9,000 members—attorneys, judges, academics and law school students—up to date on trends in the field, engaged in professional development, and involved in the legal community, and in 2011-2012, did just that.
Your Career Since our members are interested in tapping into the organization to help build and improve their careers, we made efforts this year to enhance that aspect of membership. We created a career webpage where our members can search for job listings and post their resumes at no cost. In addition, NYCLA members who are employers can search for talent on the Association’s Career Center and receive 20 percent off when posting jobs. We partnered with career experts to provide articles for New York County Lawyer and launched a new series of events. Based on a survey we conducted and our online analytics, we determined that members are interested in technology, career, and work life balance. We launched interactive round tables on these topics and thus far they have proven to be successful, based on positive ratings from attendees and attracting a wide audience of new and experienced attorneys. We continue to expand and build upon our offering of Committees and Sections to deliver the membership experience to your personal practice area. Open to every member regardless of when they were admitted; new committees added this year include Asian Practice, In House/Outside Counsel, and Multilingual Lawyering. This past year we took a deeper look at our communications that keep you, our members, informed, and made numerous improvements to deliver you more targeted and relevant news and announcements. We redesigned our weekly e-newsletter, making it easier to read, and included more links to external resources and experts and articles that focus on career resources and opportunities to meet members’ needs. In addition to improving this newspaper and bringing it online, we published several other publications during 2011-2012 including the Attorneys’ Guide to Civil Practice in the New York Supreme Court, New York City Criminal Courts Manual, and The New York Rules of Professional Conduct.
Getting the Word Out In addition to publishing our own content, we tap into external media outlets to get the word out in the community about the great work being done by our members, including programming, advocacy work, and pro bono programs. We strategically position our members as experts, showcasing NYCLA’s thought leadership. NYCLA has been front and center this year in the media, garnering significant media coverage in national media outlets, including The Wall Street Journal, The New York Times, and Thomson Reuters; local media outlets, including The Daily News, The New York Post, NY1 News, and amNewYork,; industry publications, including the New York Law Journal, Crain’s Insider, Metropolitan Corporate Counsel, and Money Management Executive magazine; and industry blogs such as AABANY and Sui Generis. A great deal of coverage occurred around the Judicial Budget Cuts Taskforce’s efforts to raise awareness about the budget cuts to the federal and state courts. Additionally, over the past two years, NYCLA’s Rapid Response Initiative has enabled the organization to react and respond quickly to negative and unwarranted press attacks on the judiciary. It was designed specifically to respond to politically motivated or overly simplistic and inflammatory media attacks that threaten judicial independence or mislead the public. During 2011-2012, the Rapid Response Initiative enabled NYCLA to respond quickly and effectively to what it believed were inappropriate statements about the difficult decisions judges make, including those regarding bail. While tapping into local and national traditional media out-
lets to raise awareness about NYCLA’s efforts, we also made great strides in 2011-2012 to utilize social media to interact with members and enhance our image. Our LinkedIn group, started in November 2011, has nearly 1,900 professionals who engage in discussion with one another about various topics related to the legal industry and share job opportunities. If you don’t already belong to the New York County Lawyers’ Association group or one of our many Committee and Section subgroups, we encourage you to join. Over 800 people are fans of NYCLA on Facebook (like us at https://www.facebook.com/NYCLAssoc) and we aim to keep our fans informed about the happenings here at NYCLA via our page. Meanwhile, over 350 Twitter users are now following NYCLA on Twitter (@NYCLA), where we keep our followers up-to-date on industry news and Association events and activities.
Continuing Your Legal Education The CLE Institute continued to educate and train attorneys in law practice management, ethics and professionalism, professional practice, and skills. Many new programs were developed in 2011-2012 to keep pace with the changing needs of the legal profession, especially in light of the stagnant economy, advances in technology and the ever present need to sharpen skills. An unparalleled roster of experts from the bench, bar, government, academia, and related disciplines taught the programs, offering their insights, knowledge, tactics, and guidance to attendees. Programs were offered in both substantive law and skill building. While some programs focused on new developments in specific practice areas, others explored new areas of the law. The CLE Institute partnered with other organizations to develop programs in specialty areas, developed programs to assist lawyers in honing both their legal and business skills, and sought to train attorneys on technological advances and the ways technology is changing the practice of law. Along with being an Accredited Provider of Continuing Legal Education programs in New York State, NYCLA’s CLE Institute has also been granted Accredited Provider status in New Jersey. Many live and DVD/CD programs offered by NYCLA qualify for both New York and New Jersey credit. The Ethics Institute continued to offer monthly substantive law CLE programs on diverse topics, each one with a strong ethics component emphasizing how to deal with the ethical questions arising in different practice areas. In addition, NYCLA’s Task Force on Professionalism, has been commenting on issues of professionalism and developing programming aimed at improving attorneys’ professional lives. On October 19, 2011, NYCLA’s Professional Ethics Committee issued Ethics Opinion 744, the first ethics opinion in New York State to interpret a new amendment to Rule 6.4 of the Rules of Professional Conduct, which addresses a lawyer’s involvement in law reform activities. NYCLA’s Mentoring Program, which seeks to enhance the experience of junior attorneys in the legal profession by providing the tools and resources necessary for their professional and personal development, is currently in its third session. In January, the Program was the recipient of the Network of Bar Leaders Innovation Award for Large Bar Associations. Not only is the current “class” of mentees reaping the benefits of the one-on-one mentor/mentee relationships, structured and informal programs, but many “alumni” of the program also continue to have contact with their mentors and have become involved members of NYCLA. Attorneys have online access to selected programs from NYCLA’s CLE Institute available on the website of NYCLA’s strategic partner, MarinoLegal.com. In addition, the Institute continues to offer selected programs as part of its DVD/CD Audio Reference Library, providing experienced attorneys with the option of satisfying their MCLE requirements from the convenience of their home or office.
Making Work Meaningful NYCLA has a long history of providing pro bono legal services that enable the Association to fulfill its core mission of providing free legal services to low-income individuals and make a difference in the lives of hundreds of New Yorkers. With the support of dedicated volunteers and generous support of NYCLA members, the IOLA Fund and the New York Bar Foundation, NYCLA’s Pro Bono programs provided assistance to over 1,500 individuals this past year. NYCLA’s Legal Counseling Project gave the public the opportunity to meet one on one with an attorney to discuss legal problems and explore options and solutions in the areas of landlord/tenant, consumer bankruptcy, employment, and family law. As a result of the sharp downturn in the economy and the growing number of New Yorkers using credit cards to make ends meet, the Civil Courts are being inundated with consumer debt cases. The Manhattan CLARO Project responded by offering free walk-in clinics that provided advice on selfrepresentation strategies. Unemployment is the persistent factor most strongly correlated with recidivism. Obtaining gainful employment, however, is typically difficult for a person with a criminal history, particularly one who seeks to enter a vocation requiring state licenses. NYCLA’s Project Restore provided representation to those individuals who were denied vocational licenses and who challenged the denial. Most taxpayers who appear in front of the Tax Court are unrepresented and cannot afford to pay an attorney to represent them. NYCLA’s U.S. Tax Court Project provided limited legal assistance to those unrepresented pro se petitioners at calendar call. And, in its ninth year of operation, the Part 137 AttorneyClient Fee Dispute Program has continued to ensure that attorneys and clients have an informal and expeditious way of resolving fee disputes through arbitration or mediation. The success of the Program is a tribute to the volunteer arbitrators and mediators.
Conducting Research The Library continues to serve members as the “lawyers’ toolbox” for the 21st century. Today’s “lawyers’ toolbox” contains a mixture of digital, print, and microform resources selected to meet the needs of NYCLA’s onsite users, and the many off-site users who utilize the NYCLA Library’s fee-based services. The Library’s patron computer network continues to be heavily used for research sessions. At the end of 2011, 25 new computers replaced the 14 old patron computers in the Library, an 80 percent increase. The NYCLA Library provides members with complimentary on-site access to Lexis, Westlaw, and Bloomberg Professional at the Library. The NYCLA patron Westlaw subscription has been expanded and includes additional resources in Entertainment Law (with Intellectual Property enhancements); Immigration Law (with the Fragomen treatises and a formfinder function); Uniform Commercial Code Law; Employment Law materials; and New York Civil Pleadings, Motions, and Memoranda.
Obtaining Justice The dedicated Justice Center Advisory Board continued to make substantive contributions to issues such as civics education and access to justice. The High School Essay Contest has been sponsored for many years by the Law-Related Education Committee, chaired by Hon. Richard Lee Price. In May 2012, the Committee presented cash prizes and certificates to public high school students who wrote essays on the topic: “You caught Derek Jeter’s 3,000th hit ball and the Commissioner of Major League Baseball has written you a letter asking you to turn the ball over to him. What are the arguments in support of keeping and turning over the ball? What would you do and why?”
May 2012 / The New York County Lawyer
Bringing the Community Together In 2011-2012, NYCLA hosted a wide range of events to meet the needs of its membership. Practice of Law Series events, designed by experienced attorneys, helped members maintain their skills, manage their practice, and develop professionally; Meet-Ups, professional development programs, were held for members to meet industry leaders, learn today’s legal In December 2011, the Justice Center co-sponsored a forum organized by the NYCLA Criminal Justice Section, When Bail Means Jail—Are NYC Criminal Courts Setting Bail Appropriately? Panelists discussed the effects of pre-trial detention, research on the efficacy of bail in rates of return to court, current litigation about the forms of bail, and alternatives to customary practices in New York City Courts. On the recommendation of Justice Center Advisory Board member Justice Marcy S. Friedman, a planning committee was set up to develop a proposal for a major conference on racial disparities in the New York City criminal justice system. Plans are well underway for a three-day conference at NYCLA in October 2012, co-sponsored by the Brennan Center for Justice at New York University Law School, National Association of Criminal Defense Lawyers, Association of Prosecuting Attorneys, and Center for NuLeadership on Urban Solutions. The goal of the conference is to bring together prosecutors, defense attorneys, judges, scholars, community leaders, law enforcement officials, and formerly incarcerated advocates to develop a menu of practical reforms to reduce racial disparities at different stages of criminal proceedings from arraignments through sentencing. The Justice Center is also focused on the issue of local, national, and international trafficking of women and girls for commercial sex purposes. Over the past year, representatives of NYCLA as a Non-Governmental Organization (NGO) at the United Nations, have served on the Stop Trafficking in Persons Committee (STIP) of the Commission on the Status of Women/NY and attended programs and briefings on the issue of trafficking. In October 2012, the Justice Center will co-sponsor, with the Feerick Center for Social Justice, a conference at Fordham Law School to assess the effectiveness of various anti-trafficking laws and programs and recommend reforms to strengthen them. In partnership with Hon. Richard Lee Price, chair of the NYCLA Law-Related Education Committee, and Debra Lesser, Executive Director of the Justice Resource Center, the NYCLA Justice Center hosted its fifth high school student conference utilizing the NYC Youth Law Manual, published by NYCLA. Hosted by New York Law School, the conference featured skits illustrating confrontations with school safety officers and the police and engaged students in small group discussions about social justice issues and careers in the law.
Advocating for Reform Several Task Forces and Working Groups have been established to bring about change in the New York legal community. This year, the Task Force on Family Court, Task Force on Judicial Budget Cuts, Task Force on Judicial Independence, Task Force on Judicial Selection, and Working Group on Court Reorganization and Mandatory Judicial Retirement were particularly active. The Task Force on the Family Court, co-chaired by Hon. Howard Miller and Professor Jane Spinak, had recommended, and the Family Court initiated, a pilot project on the use of affidavits instead of direct testimony. To focus more attention on this practice, in use in the Commercial Division of the New York State Supreme Court and the federal courts, Hon. Richard Berman, a member of both the Task Force and the NYCLA Justice Center, organized a CLE program, cosponsored by the New York State-Federal Judicial Council and the Second Circuit Judicial Council, held in September 2011 at the Daniel Patrick Moynihan United States Courthouse, which attracted over 500 registrants. Another Task Force that was active this past year was the Task Force on Judicial Budget Cuts, which was established only a year ago. With a mandate to prepare an initial assessment within 60 days, the Task Force conducted extensive
hot topics, and stay on the cutting edge of the profession; Work-Life Balance programs were organized to help members maintain a balance between their work and personal lives; The Lunch with a Judge Series was designed for summer associates, who enjoyed lunchtime panels with members of the bench discussing various topics related to the law; and Networking Events, hosted by the Young Lawyers’ Section, were held in 2011-2012 to connect members of the legal community with one interviews with administrative judges, court personnel, and practitioners and published two reports in August— Preliminary Report on the Effect of Judicial Budget Cuts on New York State Courts and Preliminary Report on the Effect of Judicial Budget Cuts on the U.S. District Court for the Southern District of New York, both highlighting how budget cuts affected the operations of the courts, particularly the effects on litigants, lawyers, and the public. In November, the Task Force conducted an electronic survey about state judicial budget cuts, which generated 759 responses from attorneys, court system employees, judges, government attorneys, lawyers with legal services organizations, and non-lawyers. Nearly 85 percent of respondents either “strongly agreed” or “agreed” that the court’s efficiency had been compromised and almost 70 percent “strongly agreed” or “agreed” that the public’s access to justice had declined. As the third component of its action plan, the Task Force conducted an All-Day Public Hearing on December 2, 2011, at the Home of Law. Five panels of Task Force members, NYCLA officers, and other NYCLA leaders heard testimony from 17 presenters, including the chief judges of the U.S. Courts for the Eastern and Southern Districts of New York, about how budget cuts affected issues from court security to arraignments. The Hearing Report, issued in January, provides details about the consequences of severe budget cuts on the administration of justice. To honor non-judicial court personnel of both the state and federal systems who have labored under difficult circumstances to serve the public, the Task Force created an Unsung Heroes Award which was presented at the 2012 NYCLA Annual Meeting to honor non-judicial members of the court system who have distinguished themselves in the exemplary performance of their duties during these difficult times of reduced resources and increased caseloads. Meanwhile, to address whether judicial disciplinary hearings should be open or closed, as well as what the press’s responsibility is to ensure balanced reporting of public accusations against a judge, the Task Force on Judicial Independence co-sponsored, with the NYCLA Judicial Section, a forum last November on judicial independence. The Task Force on Judicial Selection continued to focus on the performance of administrative law tribunals in New York City, including the Office of Administrative Trials and Hearings (OATH), the composition of judicial screening committees, and legislation to permit a ten-year term for Housing Court judges upon reappointment. It also considered bills to raise the mandatory retirement age for judges and approved a recommendation from NYCLA’s Election Law Committee, subsequently adopted by the NYCLA Board, to increase ballot access by adding a filing-fee alternative to the current nominating petition requirement for judicial candidates. In response to a new effort to reform the New York State court structure, NYCLA’s President established a Working Group on Court Reorganization and Mandatory Judicial Retirement. Working group members have attended meetings of a coalition formed by the Fund for Modern Courts to consider a simplified court structure and develop a strategy for passing a bill in two successive sessions of the New York State Legislature so that a constitutional amendment can be presented to New York State voters.
another to make new connections, expand their networks, and stay current, while opening the door to professional and personal opportunity. Meanwhile, many valuable programs and events —forums, lectures, special events, and award ceremonies were held in 2011-2012, organized by Committees and Sections, and NYCLA staff.
Rallying for Public Policy NYCLA launched several public policy initiatives in 2011-2012 including the filing of several Amicus Briefs and efforts it made by litigating. Examples of Amicus Briefs filed included the brief the NYCLA Entertainment Intellectual Property and Sports Section submitted on June 13, 2011 in the matter of Grosz v. the Museum of Modern Art, an amicus brief asking the U. S. Court of Appeals for the Second Circuit to grant a writ of certiorari for guidance in resolving disputes over Nazi-looted art. In the matter of Lino v. City of New York, NYCLA submitted an amicus brief on April 6, 2012 to the Appellate Division, First Department, in support of a private right of action to enforce sealing statutes. Litigation efforts included the notice of appeal filed regarding the 3-2 decision in the Matter of New York County Lawyers’ Assn. v Bloomberg, during which the Appellate Division, First Department denied the county bars’ appeal of the lower court decision upholding the City’s proposed revisions to its Indigent Defense Plan. Dozens of other initiatives to develop or improve public policy were acted on this year by NYCLA and its Committees. Examples include the report, prepared by the Non-Profit Organizations Committee, calling for reform of New York’s not-for-profit corporation law, eliminating Type C classifications and limiting the scope of organizations required to seek the Department of Education’s consent to various filings. Additionally, on June 15, 2011, The Supreme Court Committee issued a report opposing S. 5212, as it imposes significant and unwarranted burdens on the Appellate Court while permitting intrusive second guessing of certain functions of trial courts. See the 2011-2012 Annual Report for a full listing of 2011-2012 Public Policy Initiatives.
Awarding Committee Work The Non-Profit Organizations, which concerns itself with the legal questions raised by the operation and formation of nonprofit organizations, as well as matters related to the funding of those organizations, received the 2012 Eppler Award at the 2012 Annual Meeting for its Report on Proposed Revisions to the New York Not For-Profit Corporation Law. The first Kobak Award for innovative programs was also presented at the Annual Meeting to the Young Lawyers’ Section for the development of dynamic and varied programs that combine legal education, career development, and networking—not to mention fun—and are having a positive impact on both the law and the Association.
Generating Funding for Tomorrow The Foundation’s Second Century Campaign, which helps support the building and NYCLA projects, raised funds to assist NYCLA with its mission. In addition to contributions to the Public Service Fellowships and Summer Minority Judicial Internship Program, the Foundation obtained a second grant from The New York Bar Foundation for Project Restore, a pro bono project that assists people convicted of misdemeanors and felonies obtain vocational licenses. In November 2011, the Foundation hosted a reception honoring donors to the Centennial Capital Campaign and installed a commemorative plaque in the Lounge at the Home of Law. NYCLA Past President Kenneth J. Bialkin presented special remarks on that occasion. Visit the News & Publications section of NYCLA.org to download a complete version of NYCLA’s 20112012 Annual Report.
May 2012 / The New York County Lawyer
RECENT EVENTS Former Chief Judge Delivers 49th Annual Charles Evans Hughes Lecture Before she gave the Hughes Lecture on the topic of “Interbranch Tangling: Separating Our Constitutional Powers,” on April 26 at the Home of Law, Hon. Judith Kaye, former Chief Judge (center), chatted with NYCLA’s President, Stewart Aaron (left) and former NYCLA President and Partner at Hughes Hubbard, James Kobak, Jr. (right).
NYCLA Unveils Portrait of Former President, Catherine A. Christian The New York County Lawyers’ Association unveiled the portrait of former NYCLA President, Catherine A. Christian at a ceremony held on May 8 at the Home of Law. Ms. Christian (center) was the first African American, the youngest person, and the second woman to be inducted as NYCLA’s President, and poses with her portrait alongside current NYCLA President, Stewart D. Aaron (right) and NYCLA Task Force on Judicial Selection Co-Chair, Hon. Margaret J. Finerty (left).
NYCLA Presents Award to First Judicial District Administrative Judge at Law Day Luncheon On April 27, NYCLA’s Supreme Court Committee hosted its annual Law Day Luncheon at Cipriani Wall Street, during which the Justice Louis J. Capozzoli Gavel Award was presented to Hon. Sherry Klein Heitler, Administrative Judge for Civil Matters, First Judicial District. Hon. Loretta A. Preska, Chief Judge, United States District Court, Southern District of New York, presented Law Day Remarks.
Hon. Betty Weinberg Ellerin, Senior Counsel, Alston & Bird (left) and Morrell I. Berkowitz, Co-Chair, NYCLA Supreme Court Committee (right), present the Justice Louis J. Capozzoli Gavel Award to Hon. Sherry Klein Heitler, Administrative Judge for Civil Matters, First Judicial District (center). Photo credit: Rick Kopstein
Thomas Smith (left) and Morrell Berkowitz (second from left), CoChairs, NYCLA Supreme Court Committee; and Stewart D. Aaron, NYCLA’s President (right), welcome Law Day Luncheon guest of honor, Hon. Sherry Klein Heitler (third from right), Administrative Judge for Civil Matters, First Judicial District; along with Hon. Betty Weinberg Ellerin, Senior Counsel, Alston & Bird (third from left); and Hon. Loretta A. Preska (second from right), Chief Judge, United States District Court, Southern District of New York, who presented Law Day Remarks. Photo credit: Rick Kopstein
Nearly 500 members of the New York legal community joined NYCLA for lunch and presentations at Cipriani Wall Street.
May 2012 / The New York County Lawyer
RECENT EVENTS Leap Year Creative Writing Group Celebrates Anniversary Celebrating its sixteenth anniversary, on May 2, the Leap Year Creative Writing Group (LYCWG) read selected works from First Folio: Fifth Paring. Copies of the group’s fifth publication will be available at the NYCLA Library and copies of the prior four Folios are part of the permanent collection of the Library.
Formed on February 29, 1996, with NYCLA’s generous support, the group is a collection of NYCLA attorneys who write essays, fiction—shorts and novels, plays, poetry, screenplays, and other creative prose. A subcommittee of NYLCA’s Art Committee, the group meets monthly to gently critique and polish their works-in-progress. In addition, they have occasional guest speakers who either write for a living or are involved in the publishing industry who share their experiences with the group. Interested in joining? Contact Monique at email@example.com.
Drug Shortages Discussed at Joint Committee Program On April 12, the Health Law and Insurance Law Committees teamed up and presented, “Challenges to the Pharmaceutical Industry: Drug Shortages,” a program that featured
distinguished panelists who discussed the causes of drug shortages, its impact on public health, and possible solutions.
Health Committee Chair, Beverly Jones (right) and Susan Guercio, Chair of Drugs and Law Committee of New York City Bar (left) thank event panelists, Dr. Dilcia Granville (second from left), Senior Public Affairs Specialist, U.S. Food and Drug Administration; Jason Chheda (center), Pharmacist, New York State Council of Health Systems Pharmacists; and Janet MacLeod (second from right), Ph.D, Partner, Fox Rothschild, LLP.
Panelists Discuss Sports and Intellectual Property at Forum
Steven Olenick, Esq. (right) talks about legal issues commonly involved in representing athletes at the “Lin-tellectual Property” forum held by NYCLA’s Entertainment, Media and Intellectual Property Section and its Sports Law Subcommittee on May 17, moderated by Paul Haberman (second from left). Other panelists included Christopher Chase (left), and Professor Marc Edelman (second from right).
Young Lawyers’ Section Hosts Whisky Tasting A room full of NYCLA and Scottish Bar Association of New York members gathered to sample a fine selection of Scotch whisky and craft beers while enjoying gourmet food parings at a Whisky Tasting event hosted by the Young Lawyers’ Section on May 17.
10 May 2012 / The New York County Lawyer
LIBRARY NOTES To make suggestions about digital or print purchases please contact NYCLA’s Director of Library Services, Dan Jordan, at firstname.lastname@example.org or 212-267-6646, x204.
Featured Internet Sites Are you looking for an online source that gives guidance to help you meet your research needs? Check out Zimmerman’s Research Guide, An Online Encyclopedia for Legal Researchers by Andrew Zimmerman (http://law.lexisnexis.com/infopro/zimmermans/), an online research legal encyclopedia. Originally compiled as Zimmerman’s “black book” of research notes from
his early days as a law librarian, the Research Guide is seen by the author as a collaborative effort and Mr. Zimmerman is genuinely interested in comments from others and in refinements of what this web site has to offer. Mr. Zimmerman has extensive experience working in large law firm libraries, as a legal writer and editor. He holds a B.A. (English) from Vassar College, a J.D. from The Dickinson School of Law and an M.L.I.S from the Pratt Institute. The front page of Mr. Zimmerman’s website has a search box, allowing you to search for the research guidance you seek and has an alphabetical index with hot links to over 1,200 topics of research advice within the Zimmerman Research Guide site. Though hosted through LexisNexis, Mr. Zimmerman does not limit his advice
to works from this publisher. A companion item to the web site is The ZRG Blog, http://zimmermansguide.wordpress.com/. If you are a real research maven you will enjoy being kept abreast by daily updates of changes to the research landscape. Mr. Zimmerman also uses this blog to get comments from users on new developments before updating Zimmerman’s Research Guide.
New Editions of Books and New Supplements The Official Compilation of the Rules of the City of New York New York 2012. REF KFX 2017.4 .A37
The NYCLA Library also has earlier editions of this title. Collier Bankruptcy Pamphlet Edition, 2012 Ed. REF KF 1524 .C64 Wigmore on Evidence, 2012 Cumulative Supplement KF 8935 .W54 Brady on Bank Checks and Fund Transfers . Rev. ed /, new supplement. KF 960 .B34 2001
Many NYCLA members qualify for off-site access to legal research materials through the Internet at no cost. Please contact email@example.com for more information.
Electronic Research Center CLE Programs Unless otherwise noted, courses are free and open to the public 1 MCLE Credit: 1 Skills; Transitional
June Westlaw: Advanced June 5 - 1:30-2:30 p.m. 1 MCLE Credit: 1 Skills; Transitional
Using Bloomberglaw.com for Litigation June 21 – 10-10:50 a.m. 1 MCLE Credit: 1 Skills; Transitional
Westlaw: Intellectual Property Research June 5 – 3-4 p.m. 1 MCLE Credit: 1 Skills; Transitional
Using Bloomberglaw.com for a Corporate Transactional Practice June 21 - 11:05-11:55 a.m. 1 MCLE Credit: 1 Skills; Transitional
Westlaw: Basic June 20 – 10-11 a.m. 1 MCLE Credit: 1 Skills; Transitional Free and open to the public
Lexis: I June 26 – 11 a.m.– noon 1 MCLE Credit: 1 Skills; Transitional
Westlaw: New York Materials June 20 - 11:30 a.m.-12:30 p.m.
Lexis: Update Enhancements Research June 26 – 12:30-1:30 p.m. 1 MCLE Credit: 1 Skills; Transitional
1 MCLE Credit: 1 Skills; Transitional Lexis: Expert Witness June 26 - 2-3 p.m. 1 MCLE Credit: 1 Skills; Transitional U.S. Bankruptcy Court Electronic Case Filing System June 27 – 10 a.m.-12:30 p.m. 2.5 MCLE Credits: 2.5 Skills; Transitional Member: $65 Non-member: $85 Non-legal Staff: $35
July Lexis: I July 11 – 10:30-11:30 a.m.
Lexis: II July 11 – 12-1 p.m. 1 MCLE Credit: 1 Skills; Transitional Lexis: Litigation July 11 - 1:30-2:30 p.m. 1 MCLE Credit: 1 Skills; Transitional Using Bloomberglaw.com for Litigation July 19 - 10-10:50 a.m. 1 MCLE Credit: 1 Skills; Transitional Using Bloomberglaw.com for a Corporate Transactional Practice July 19 - 11:05-11:55 a.m. 1 MCLE Credit: 1 Skills; Transitional
Predictive Coding – Rise of the Machines? By Natalie S. Feher In recent months, countless articles and blogs have repeated time and time again how the industry is abuzz with Magistrate Judge Andrew J. Peck’s discovery order in the class action gender discrimination case Monique da Silva Moore, et al. v. Publicis Group SA, et al,.1 The world of e-Discovery can’t seem to talk about anything else. The problem of course, is that the lawyers and clients with whom we work are not quite as obsessed with computer assisted review as we are. Amidst the chatter, we can’t help but scratch our heads at the reluctance of much of the legal industry to make the switch to Analytics as a means to further
streamline a review. Predictive coding, to us, is simply the next step in the evolution of the e-Discovery process. Many cautious attorneys are concerned that a computerized review leads to the production of documents that were never reviewed by an attorney and that should never be produced. This need not be the case, however. Predictive coding can greatly speed up a document review but there is no reason to release documents to opposing counsel that have not been looked over first. Significant time and energy will still have been saved even when each and every Responsive document is reviewed before it’s produced. For those not already familiar with com-
puter assisted review, the process involves using new technologies to extrapolate a reviewer’s decisions. The best way to understand predictive coding is to think of it more as a project management technique. Through the use of computer analysis and sampling, the system quickly identifies potentially responsive documents. A “seed set” of documents is coded by attorneys familiar with the case and, based on those decisions, the rest of the document universe is then “categorized” by the software. This identification process is conceptually similar to the process of keyword or key concept searching that is currently widely used in eDiscovery reviews. In the case of pre-
dictive coding, the expertise of the attorneys, who normally would determine which keywords to use, is instead used to “train” the computer. As in all reviews, initial data is culled through the use of standard tools that remove duplicates and filter out clearly irrelevant data. Once the data has been processed to the point where traditional human review would begin, the first step of predictive coding takes place; the seed set of documents is created to start the training process. This sample set of documents is coded by attorneys with substantial knowledge of the case so as to ensure maximum accuracy. The computer then codes, categorizes and/or clusters (See Predictive Coding on page 15)
May 2012 / The New York County Lawyer 11
Annual Meeting Attendees Honor, Celebrate, and Reminisce NYCLA members gathered at the Association’s Annual Meeting on Thursday, May 24, during which NYCLA officers and members of the Board were inducted and awards were presented, and The United States District Court for the Southern District of New York: A Retrospective (2000-2010) was announced. The Retrospective includes insight into how the court has evolved over the years and covers notable cases, trials, and decisions in various areas of law. Incoming Directors to its Board of Trustees who were inducted include Thomas G. Draper Jr.; Joseph M. Drayton Jr.; Gordon Eng; Hon. Margaret J. Finerty; Adrienne Koch; Eugene B. Nathanson; Jonathan Pressment; Felix Shipkevich; Asha Smith; Daniel K. Wiig; and Alison Wilkey, led by Stewart D. Aaron, President; Barbara Moses, President-Elect; Lewis F. Tesser, Vice President; Carol A. Sigmond, Treasurer; and Susan J. Walsh, Secretary. The following awards were presented at the Meeting, and members enjoyed a reception and celebrated all the Association accomplished over the past year.
The Non-Profit Organizations Committee received the 2012 Eppler Award for its Report on Proposed Revisions to the New York Not For-Profit Corporation Law. They received a certificate and a $500 stipend to enhance the Committee’s work. The first Kobak Award for innovative programs was presented to the Young Lawyers’ Section for the development of dynamic and varied programs that combine legal education, career development, and networking — not to mention fun. NYCLA’s Task Force on Judicial Budget Cuts, chaired by Michael Miller and Hon. Stephen G. Crane, presented the Unsung Heroes Award to honor non-judicial members of the court system who have distinguished themselves in the exemplary performance of their duties during these difficult times of reduced resources and increased caseloads. Honorees from United States District Court, Southern District of New York: Wayne Bowman; Michael Fitzpatrick, and Edward A. Friedland. Honorees from New York City Supreme Court: Reginald Bouchereau; Yvonne C. Cleland; Jack Dooley;
Achieving Success: 2011-2012 Annual Report Now Online Over the past year, NYCLA has focused on increasing member satisfaction and value, as well as assisting its members in career building in these tough economic times. The Association also has made efforts to help the legal community network with one another, learn about relevant topics, and accomplish meaningful pro bono work. Read about these and other efforts made over the past year in our 2011-2012 Annual Report, which covers our Membership programs, Continuing Legal Education; Pro Bono, and Justice Center programs; Research and Technology services; Public Policy initiatives; and our Task Forces and Working Groups, Foundation, and Committees. Download a copy at nycla.org. Steven Flatow; Doreen Gushue; Michael Markowitz; Raphael Moser; its E-Filing Resource Center staff: Maureen Galvin; Peter Garganese; Karen Mackin; Veronica Schmachtenberg; and Roger Shapiro. Honorees from United States District Court, Eastern District of New York: Eileen Kelly; I. Alexei Martinez; and Douglas Palmer. Honorees from New York City Civil Court: Lauren
Blackman; Fran Stahl; and Antonella E. Tropea. Honorees from New York City Criminal Court: Anthony Cuva and Fernando Smith; Honorees from New York City Family Court: Angela Britton and Dahyana Grullon. Honorees from the Surrogate’s Court: Marcia Goffin and Janet Mishkin.
NYCLA In The News A roundup of recent national and local news stories featuring NYCLA and its members A roundup of recent national and local news stories featuring NYCLA and its members This magazine of the American Bar Association mentioned NYCLA’s follow-up study of the New York State court system, which investigated budget cuts. Bar Leader New York County bar studies effects of poorly funded court system Spring 2012 This journal of the New York State Bar Association highlighted an ethical view-
point of NYCLA’s Committee on Professional Ethics in an article on respecting confidential information. New York State Bar Association Journal Respecting Someone Else’s Confidential Information May 2012 The New York Law Journal printed a photo from NYCLA’s Law Day Luncheon of the Justice Louis J. Capozzoli Gavel Award being presented to Sherry Klein Heitler, administrative judge for civil matters, First Judicial District, at NYCLA’s Law Day
Luncheon on April 27. New York Law Journal NYCLA Presents Award at Law Day Luncheon May 1, 2012 A letter by NYCLA’s President, Stewart D. Aaron, about the meaning of Law Day, was published in the New York Law Journal in its Law Day issue. New York Law Journal Funding Cuts Limit Justice and Freedom May 1, 2012
A photo taken before she delivered the 49th Charles Evans Hughes Memorial Lecture on April 26, was published of Former Chief Judge Judith Kaye. New York Law Journal Kaye Delivers Hughes Lecture April 30, 2012 A photo taken at the Women’s Rights Committee’s 15th annual Edith I. Spivack Award on April 23 was published in the New York Law Journal. New York Law Journal NYCLA’s Women’s Committee Presents Award April 25, 2012
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12 May 2012 / The New York County Lawyer
New York State Reproductive Health Act By Joana Lucashuk In 1973, the U.S. Supreme Court held in Roe v. Wade that the U.S. Constitution protects a woman’s right to terminate her pregnancy prior to fetal viability and when her life or health is at risk after fetal viability. However, if Roe v. Wade were overturned, the reproductive rights of women in New York would be determined by New York law. Assembly Member Deborah Glick and Senator Andrea Stewart-Cousins have introduced a bill in the New York State Legislature that would codify the protections recognized by the U.S. Supreme Court in Roe v. Wade and subsequent court decisions. The bill, A.6112/S.2844, would add a new Article 17 to the Public Health Law entitled, “Reproductive Health Act” and would amend and repeal certain provi-
sions of the Public Health Law, Penal Law, Criminal Procedure Law, County Law, and Judiciary Law. The Legislature enacted New York’s abortion law prior to Roe v. Wade and like many other states, New York’s law was written to prescribe what a person may not do, rather than what a person may do. Because the law is set forth mainly in the Penal Law, abortion is currently treated as a criminal matter, rather than a public health matter. New Article 17 of the Public Health Law would authorize the performance of an abortion by a qualified, licensed health care practitioner in the absence of fetal viability and at any time if termination is necessary to protect the woman’s life or health, in the good faith medical judgment of a physician. The article defines “fetal via-
Committee Advocates for Women’s Rights NYCLA’s Women’s Rights Committee Sends Letter to President Obama about the Reduction in Staffing of the U.S. Department of Labor’s Women’s Bureau The Women’s Rights Committee wrote to President Obama to express its opposition to his proposal to reduce by 37 percent the U.S. Department of Labor Women’s Bureau’s staffing, downsize the regional offices from ten to six, and reduce overall funding by 22 percent.
Women’s Rights Committee Sends Letter to State Lawmakers Supporting Reasonable Accommodations for Pregnant Women Bill There are now more pregnant women in the workplace than ever before; however, current workplace laws are inadequate to protect pregnant New Yorkers from being
forced out of work or fired when all they need are reasonable accommodations to enable them to remain on the job. Employers have refused to permit doctor-advised workplace accommodations, such as allowing a cashier to sit on a stool rather than stand at her cash register, allowing more frequent bathroom breaks, excusing the employee from lifting heavy objects, or permitting her to drink water or snack while on her shift. NYCLA’s Women’s Rights Committee sent a letter to State Senator Liz Krueger and Assemblywoman Eileen M. Gunther supporting the “Reasonable Accommodations for Pregnant Women Bill” (S6273/A9114), which would amend the State Executive Law to require the provision of reasonable accommodations for pregnant women in the workplace. The Committee believes that the legislation would make it harder for employers to discriminate against pregnant women and make it more likely that pregnant women will be able to remain at work to support their families.
bility” as the point in pregnancy when, as determined by a physician or other qualified practitioner acting in good faith, the gestational age of the fetus is 24 weeks or more and there is a reasonable likelihood of the fetus’s sustained survival outside the uterus without the application of extraordinary medical measures.
licensed by the Department of Health. Currently, the Public Health Law provides that when an abortion is performed after the 12th week of pregnancy, the abortion must be performed only in a hospital and only on an inpatient basis. The current law is contrary to a number of U.S. Supreme Court cases decided after Roe v. Wade.
Article 17 specifically provides that nothing in that article should be construed to conflict with any applicable state or federal law or regulation permitting a health care provider to refrain from providing abortions due to the provider’s religious or moral beliefs.
In addition, the bill would repeal abortion-related crimes set forth in the Penal Law; amend the definition of “homicide” to delete references to an unborn child and abortion; and amend the first and second degree manslaughter statutes to delete language relating to causing a death of a woman during the performance of an abortion.
The bill also would amend the Public Health Law to require an abortion performed after fetal viability to be performed by a physician in a facility
Joana Lucashuk is the Co-Chair of NYCLA’s Women’s Rights Committee.
NYCLA Addresses Proposed Fee Dispute Amendment NYCLA’s President, Stewart D. Aaron, and the Chair of the Joint Committee on Fee Disputes and Conciliation, James Daniel, wrote a letter to James W. McConnell, Counsel for the State of New York’s Unified Court System stating that NYCLA strongly disagrees with the proposed amendment 22 NYCRR Part 137 that would exclude fee disputes involving disbarred, suspended, resigned attorneys, and attorneys under investigation. Part 137 jurisdiction currently does not extend to claims “Involving substantial legal questions, including professional malpractice or misconduct.” The proposed amendment would also take disputes out of the Fee Dispute Resolution Program “where the attorney has been disbarred or suspended from the practice of law or has resigned
from the practice of law while under investigation for professional misconduct” and “where the attorney is the subject of an investigation or prosecution for professional misconduct.” Under the new proposed exclusions, it would not matter whether the fee dispute arose out of the circumstances that put the attorney’s practice of law in jeopardy. Instead, the benefits of fee dispute arbitration would be denied altogether to two classes of claimants—attorneys and, more importantly, the clients of attorneys who have been disciplined or facing potential discipline. Read the complete letter at http://www.nycla.org/siteFiles/Publicati ons/Publications1543_0.pdf
The ‘Why’ of Generation Y: A Guide to Managing and Motivating Millennials By Robert Half Legal The oldest members of Generation Y began entering the workforce a little more than a decade ago. So, what are these up-and-coming professionals like who work in the legal field? Research conducted by Robert Half Legal, revealed that Millennials value autonomy and reinforcement in their jobs, and they prefer workplaces that are fun and informal. Recruiting Gen Y To attract Gen Y candidates, ensure that
the compensation for a given position is slightly above the average for your industry and region, if possible. Since benefits are also important to this generation, don’t make your Gen Y hires wait three months for healthcare coverage, or a year to be fully vested in your firm’s 401(k) plan. Try to make benefits such as these take effect as soon as possible. Gen Y prizes professional growth, so be sure to showcase your firm’s in-house training programs, tuition reimbursement, or formal mentoring programs.
Managing and Motivating Millennials Research we conducted shows that Gen Y workers respond positively to managers who communicate frequently and offer feedback, praise and encouragement. Rather than waiting until the annual performance review, give your staff input on their performance as tasks and projects are completed. Remain open to their ideas and suggestions. Gen Y members tend to be highly social, so create opportunities for interaction among colleagues. Open seating plans,
monthly staff lunches or Friday morning coffee-and-bagels will help them feel connected and make them more productive. Keeping Them Happy One-quarter (23 percent) of Gen Y members interviewed for the Future Law Office white paper cited career satisfaction as a leading concern. This generation seeks fulfillment on the job and a positive work environment where they can realize their potential. To retain these professionals, give them assignments that challenge them and allow them to develop new skills.
May 2012 / The New York County Lawyer 13
A Clause for Both Sides of the Table By Paul Reale Whether you’re representing a landlord or a tenant in a lease negotiation, it’s safe to say you’re doing your job if the agreed terms help your client’s bottom line. Often this is a zero sum game; when one party gains, the other one loses. Some terms, though, help both parties’ bottom lines. Case in point: the PlaNYC Energy Aligned Clause.
First: the problem. In most modified gross leases, when a landlord pays for a project that saves energy, it reduces the tenants’ costs. So energy savings don’t contribute to recouping the landlord’s investment.
Often, lease terms allow for the capital expense to be charged back to the tenant over the life of the retrofit. That could be 30 years, greatly reducing the financial incentive for the landlord to do the project at all. The landlord’s asset is not improved, the tenants’ costs remain high and oh, by the way, the environment is worse off.
But projected energy savings can be used to pay down the capital expenditure, based on a payback period calculated by an engineer for a variety of potential projects. In these cases, capital expenditure is recouped through reduced energy costs. Once it’s paid off, it’s pure savings.
The challenge then is to get the tenant to agree to direct the energy savings to pay for the capital improvement. If the tenant agrees to pay all the energy savings to the landlord until the project is paid off, the tenant’s cash flow is the same as if the project was never done. If the lease is still in effect when the retrofit is paid off, then the tenant saves from that time forward. Unfortunately, energy costs depend on parameters that are difficult to predict, like the weather. Methods for determining energy savings are subject to debate, so there’s a risk a tenant that agrees to pay all the energy savings would have to pay more during the payback period than if the work hadn’t been done at all. Tenants might be wary of such deals.
The Energy Aligned Clause, developed by a working group of real estate experts convened by the Mayor’s Office, mitigates the risk to the tenant. Savings are paid back to the landlord, but the amount paid includes a “performance buffer” to protect the tenant. Rather than pay 100 percent of the savings predicted by an engineer, the tenant pays the landlord 80 percent of the predicted savings until the landlord recoups the capital expenditure.
This way, if the prediction was accurate, the tenant pockets 20 percent of the savings and the landlord pays off the investment over a payback period 25 percent longer than the simple payback. The adjusted payback period could be longer, depending on factors such as whether the Clause is used for all tenants in the building, but it’s a lot quicker than the life of the retrofit. And even if the retrofit underperforms by as much as 20 percent, i.e., it saves only 80 percent of the engineer’s prediction, the tenant still ends up paying less. Clearly this is a win-win for landlord and tenant, and for the next several months Urban Green Council, the NYC chapter of the U.S. Green Building Council, will continue to reach out to owners, tenants, brokers, and attorneys in the commercial real estate community. Regardless of which side of the table you’re on, the Energy Aligned Clause is likely to get the nod because it can enhance both bottom lines. And by encouraging energy retrofits in buildings, the Clause offers an important environmental bonus that increasingly appeals to landlords and tenants. For more information and to request a free presentation for your firm’s real estate practice, visit www.urbangreencouncil.org/EnergyAlignedClause.
Paul Reale is a Special Consultant to Urban Green Council, USGBC New York. The mission of Urban Green is to lead the advancement of sustainability in urban buildings through education, advocacy, and research.
The New York Center for Neuropsychology & Forensic Behavioral Science Dr. N.G. Berrill, Director
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14 May 2012 / The New York County Lawyer
May 2012 / The New York County Lawyer 15
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Predictive Coding (Continued From Page 10)
documents based on its analysis of the seed set documents and how each was coded by the attorney reviewer. Next, a statistically significant sample of the categorized documents is randomly selected and reviewed by the subject matter expert. This QC step is designed to help refine the software’s analysis and categorization. Once this sample has been reviewed, one can identify how often the reviewer and the system disagreed and on what documents – these are called “overturns.” The goal is to reduce the number of overturns per QC round until one achieves a level considered acceptable to the specific matter. At that point, the document universe will be categorized as Responsive and Non Responsive and one can decide to set aside the Non Responsive documents and assign human reviewers to look only at those likely to be Responsive, or one can have the review team review the entire universe, prioritizing those documents that the system has coded as Responsive. The latter is an obviously cheaper option, but either work flow is more efficient than a traditional linear review and, at the end of the process, all produced documents will have been reviewed by a live attorney. Statistical evidence, in fact, supports the superior efficiency of technology-assisted review.2 Addressing the legal issue of whether predictive document review meets counsel’s obligations to conduct a reasonable and defensible search for responsive documents under applicable discovery rules, Maura Grossman and Gordon Cormack concluded that the predictive-coding approach can be more cost-effective, efficient and accurate than human-only review.3 It can be argued that this process of “training” the computer is superior to the
process of training individual attorney reviewers. Attorney review training is often minimal, consisting of a mixture of case overview and platform training. Predictive coding, on the other hand, allows these same associates to have a direct hand in the coding of the review population. The ability to provide a seed set that acts as a guide for the system is a much more reliable way to inform a review than the practice of providing a handful of “sample documents” to a roomful of tired reviewers. Instead of having the directions and information diffused through conversations among the reviewers, the computer relies only on what it is taught by the subject matter experts. Another benefit of this process is the ability to fine-tune one’s results until discrepancies between computer and subject matter expert coding reach an acceptable level. Attorneys with experience reviewing documents know that the error rate of human review is usually, if not always, considerably higher than the three to five percent that can be achieved using computer assisted review. With predictive coding, the universe of example documents is continuously refined and, with each new sample of documents coded by an attorney, the computer’s ability to categorize correctly is improved. Unlike an attorney reviewer, the computer never gets tired, never stops paying close attention, and never takes a coffee break. As described by Peck in da Silva Moore, “As the senior reviewer continues to code more sample documents, the computer predicts the reviewer’s coding (or the computer codes some documents and asks the senior reviewer for feedback)…When the system’s predictions and the reviewer’s coding sufficiently coincide, the system has learned to make confident predictions for the remaining documents.” 4 E-Discovery already relies heavily on the use of key word searches to cull the enormous amount of ESI that is often
collected. Aside from choosing the terms by which the original data is culled, it is only after heavy data processing that live attorneys become involved. In an article in the Richmond Journal of Law & Technology addressing the defensibility of Assisted Review, William Belt et al acknowledged the industry’s level of comfort with current accepted standards, “Though intellectual debate challenges the efficacy of keyword searching, it is generally-accepted and widely used. Technology-assisted review is not as of yet.” 5 While adversaries continue to battle in court about how this new technology should be applied, at least some Judges have acknowledged the simple principle that a party should be able to review their own documents by whatever means they prefer. Judge James Chamblin, a state judge in the 20th Judicial Circuit of Virginia’s Loudon Circuit Court may have been the first to actually order the use of predictive coding. Unlike Da Silva, the parties in Global Aerospace Inc., et al, v Landow Aviation, L.P. dba Dulles Jet Center, et al, disagreed about not just the process of computer assisted review, but whether it could be used at all. Finding for the defendants, Chamblin ordered that they be allowed to use predictive coding, and pointed out that the receiving party will still have the opportunity to question “the completeness of the contents of the production or the ongoing use of predictive coding.” 6 Although this order isn’t in itself unusual and provides no additional guidance for the application of process or quality control procedures to ensure reliability of results, it has the potential to give some fuel (or courage) to litigants on the issue of predictive coding in general. To help the adoption of analytics as a tool, it’s important that the industry understand the utility of this technology toward familiar processes such as quality control (QC) of work product. The technology can be used to identify inconsis-
tently coded similar documents, previously missed privileged documents and can help with relevant issue coding. The human element of document review is by no means becoming obsolete. As with the adoption of any new technology, the optimization of interaction between the human and technological elements is needed to achieve the best results. Largescale human-only attorney reviews will likely become less prevalent with continued adoption of assisted review, but flesh and blood attorneys will always be an essential factor of a successful document review. While the debate around the proper application of Analytics rages, there is no denying either its utility - or inevitability. 1. http://pdfserver.amlaw.com/legaltechnology/Da_Silva_Moore_v_Publicis_Groupe_11civ-1279_nysd_complaint.pdf 2. Maura R. Grossman & Gordon V. Cormack, Technology-Assisted Review in E-Discovery Can Be More Effective and More Efficient Than Exhaustive Manual Review, XVII RICH. J.L. & TECH. 11 (2011), http://jolt.richmond.edu/v17i3/article11.pdf 3. id 4. Monique da Silva Moore, et al. v. Publicis Group SA, et al, 11 Civ. 1279 5. William W. Belt, Dennis R. Kiker & Daryl E. Shetterly, Technology-Assisted Document Review: Is It Defensible?, XVIII RICH. J. L. & TECH 10(2012), http://jolt.rocj,pmd.edu/v18i3/article10.pdf. 6. Order Approving the Use of Predictive Coding for Discovery, Global Aerospace Inc., et al. v. Landow Aviation LP /dba/ Dulles Jet Center, et al., Consolidated Case No. CL 00061040 00, (Circuit Court Loudoun Cty., Apr. 23, 2012) (J. Chamblin).
Natalie S. Feher is a NYCLA member and serves as eDiscovery Counsel and Senior Project Manager at Complete Discovery Source, a NYCLA benefits partner. For more information about predictive coding technologies and processes, contact Natalie at email@example.com or 212-813-7006, or visit www.cdslegal.com.
16 May 2012 / The New York County Lawyer