COUNTY LAWYER NEW YORK
March 2012
Visit us at www.nycla.org
Rocketing to Success
Journalist and founder of Forbes magazine, B.C. Forbes, once said, “Think not of yourself as the architect of your career but as the sculptor. Expect to have to do a lot of hard hammering and chiseling and scraping and polishing.” It is true that it takes an enormous amount of time and effort for one to shape his or her career and that over time, one’s career takes a unique shape because of experiences obtained. As a leading bar association, the New York County Lawyers’ Association (NYCLA) is here to help you do just that. We are devoted to enhancing the careers of our members by providing various educational and networking opportunities. And, we have dedicated this issue of New York County Lawyer to “Rocketing to Success” to share with you resources and ideas on how to make the most out of your career in the legal field. Within this issue you will find information not only on NYCLA resources available to you to help you build or put your
I N S I D E
Job,” on page 7, will provide you with insight into how to best equip yourself for success in a new position—an important read for anyone thinking of changing jobs now or in the future.
Stewart D. Aaron President, New York County Lawyers’ Association
career on the right track, but ideas and insight from career experts and leaders in the legal field. I encourage you to read “Ask for a Raise” (below) to hear from About.com’s Legal Career Guides’ Sally Kane, on how to research, prepare, and make a compelling case for a salary increase. Meanwhile, “Tips for Starting a New
You’ll find other articles within that I hope inspire to sculpt your career and as you do so, I encourage you to take advantage of NYCLA’s career resources including our Career Center, which offers job listings through legalstaff.com. Members and non-members can search job listings and post resumes there, at no cost. Also consider attending networking events, joining our LinkedIn group, staying up to date on your CLE credits, and participating in our committees to sculpt your career into exactly the form you want it. In the meanwhile, please share with me what resources you’re tapping into to shape your career by tweeting me @NYCLAPres, and visit nycla.org to take advantage of our many career resources.
Ask for a Raise By Sally Kane, About.com Guide Published: January 26, 2012 Do you believe you are underpaid at work? Asking for a raise can be an intimidating process. However, armed with research, preparation and the simple tips below, you can create a compelling case for a salary increase.
company policies, employment handbooks, job descriptions and/or websites to determine the pay range for employees in your position. If compensation information is not published, talk to your human resources department or manager to gain insight into the company’s compensation policies.
want to postpone your request for a raise. Wait until your manager is in a good mood and not busy with other pressing obligations. Research demonstrates that Mondays are typically not the best day to ask for a raise. 5. Advocate your case.
3. Develop your sales pitch. Difficulty: Average Time Required: Indefinite Here’s How: 1. Determine the market value of your position. Take some time to research the market value of your job. Internet-based salary calculators such as Salary.com and on-line resources such as the U.S. Department of Labor’s Occupational Outlook Handbook may provide helpful compensation information. Network with your peers at other law firms and companies to determine what people in your position at your experience level are paid. Professional associations such as the American Bar Association and National Federation of Paralegal Associations also often maintain salary information. 2. Research your firm’s compensation practices. Review the salary guidelines outlined in
Prepare and rehearse a presentation to your employer outlining your value to the company. Mention your accomplishments, awards and goals. Emphasize any specialized skills, knowledge or expertise you bring to the position that sets you apart from others. Provide concrete examples, facts, figures, percentages and other hard data where possible. Save emails or letters in which clients, coworkers, vendors or others have commented positively on your work efforts. Demonstrate how you have transcended the boundaries of your position to add value to the company.
Present your case for a raise to your employer, supporting your position with tangible data and evidence of your value to the company, if possible. Now is not the time to be modest about your accomplishments. You must toot your own horn. Your attitude will set the tone for the negotiation. Advocating your position calmly and rationally will advance your cause further than raising your voice, arguing, being confrontational or giving ultimatums. Tips: 1. Solicit other offers.
4. Select the right moment. The best time to request a pay raise is immediately after you saved the company money, received an award, completed a large project or achieved some other noteworthy accomplishment. Likewise, if you have just joined the firm or your recent performance has been less than stellar, you may
Volume 7 / Number 10
One of the most effective ways to obtain a raise is to get a higher job offer from another company and use that offer as leverage. However, play this card carefully. If the employer does not match or beat the company’s offer, you must be willing to accept the other offers. (See Ask for a Raise on page 15)
Ask for a Raise
Social Media for the Job Search
Become a Better Leader
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Tips for Summer Associates 14 T A B L E O F C O N T E N T S Annual Meeting Notice .................2 Ask for a Raise ..............................1 Call for Applications......................8 CLE Institute..................................4 CLE Programs ...............................4 Commerical Litigation Treatise ...11 Committee Meeting Schedule .....12 Committee News..........................13 Court Simplification ....................14 Electronic Research Center CLEs..10 Ethics Hotline ................................5 Events Calendar .............................2 Fashion Law Committee..............13 Focus on Advocacy......................13 Leadership-Become a Better Leader...............................6 Libel Law Misconceptions ..........12 Library Notes ...............................10 Library Resources........................10 Message from Stewart Aaron, President of NYCLA...................1 Message from Barbara Moses, President of the NYCLA Foundation...................................3 Networking-Build Your Rolodex ...6 New Jobs-Tips ...............................7 Networking Do’s and Don’ts.........7 NYCLA In the News .....................6 Recent Events ................................8 Sealing Reform ............................13 Social Media for the Job Search....3 Tips for Summer Associates ........14 What’s Tweeting ............................2 Young Lawyers’ Section Events ..14 SOPA............................................15
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March 2012 / The New York County Lawyer
EVENTS CALENDAR
Notice of Annual Meeting & Reception
Events are subject to change; please check the Association’s website, www.nycla.org, for schedule changes and additions.
March
April
Public Forum: Getting on the Catwalk: Careers for Lawyers in Fashion Law March 8 - 7 p.m. Panelists: Karen Ash, Partner and National Co-Chairperson, Intellectual Property Department, Katten Muchin Rosenman LLP; Charles Colman, Charles Colman Law, PLLC; David Faux, Law Offices of David Faux; Guillermo Jimenez, Professor (F.I.T.-SUNY, Iona, I.S.M.); Barbara Kolsun, General Counsel & VP, Stuart Weitzman, LLC; Heather McDonald, Baker Hostetler LLP; Event Chair & Moderator: Quinn Taurman (NY Law School) Open to the public
Practice of Law: Trial Technique for Beginners April 12 – 6 p.m. Speaker: Jeffrey M. Kimmel This event will feature detailed discussions concerning trial strategy, witness preparation, jury selection, opening/closing statements and direct/cross examination. Hearsay objections and other evidentiary issues will be discussed. Members only
CLARO Volunteer Recognition Program March 13 – 6-7:30 p.m. Fordham University, Lowenstein Building Judicial Reception March 15 - 5:30-7:30 p.m. The Committee on the Supreme Court will host a reception honoring newly elected, appointed, re-elected and re-appointed judges. Welcome Remarks: Hon. Jonathan Lippman, Chief Judge of the State of New York; Special Remarks: Hon. Bernard J. Fried, retiring Supreme Court Justice, Commercial Division, New York County Practice of Law: Legal Ethics You Need to Know March 15 – 6 p.m. An inside look at the attorney disciplinary process and the new Rules of Conduct, how to avoid disciplinary complaints and how to respond to disciplinary complaints. Speaker: Lewis Tesser, Esq. Members only Special Event: Ready, Set, Lead! Women’s Future: Where Do We Go From Here? Mar. 23 - 6-9 p.m. – Melville Marriott In honor of Women’s History Month, NYCLA is hosting this event in partnership with other local bar associations Open to the public
Special Event: Edith I. Spivack Award Ceremony April 23 – 6 p.m. The NYCLA Women’s Rights Committee will present Donna Lieberman, Executive Director of the New York Civil Liberties Union, with the Edith I. Spivack Award. Open to the public Special Event: 49th Charles Evans Hughes Memorial Lecture April 26 – 6 p.m. Speaker: Hon. Judith S. Kaye, of Counsel, Skadden, Arps, Slate, Meagher & Flom; former Chief Judge, State of New York Open to the public
May 24, 2012 at 5:30 p.m. NYCLA Home of Law, 14 Vesey Street Annual Report of the President Treasurer’s Report Election of Officers and Directors On January 30, 2012, the following were nominated as officers and directors by the Committee on Nominations: Nomination of Officers: Board of Directors: President – Stewart D. Aaron President Elect – Barbara Moses Vice President – Lewis F. Tesser
Secretary – Susan J. Walsh Treasurer – Carol A. Sigmond
Director – Class of 2015: Thomas G. Draper, Jr. Joseph M. Drayton Gordon Eng Hon. Margaret J. Finerty Adrienne Koch
Eugene B. Nathanson Felix Shipkevich Asha Smith Daniel K. Wiig Alison Wilkey
Director – Class of 2014: Jonathan Pressment Committee on Nominations: Class of 2015:
Law Day Luncheon April 27 – 11:30 a.m. Cipriani Wall Street The Justice Louis J. Capozzoli Gavel Award will be presented to Hon. Sherry Klein Heitler, Administrative Judge for Civil Matters, First Judicial District Open to the public
NYCLA Meet-Up: Advance Your Career March 28 – 6 p.m. Meet with career experts to learn everything you need to know to grow your career, change jobs or land a job Members only
Catherine A. Christian Howard W. Burns James B. Kobak, Jr.
Susan B. Lindenauer Susan J. Walsh
Class of 2014: Michael J. McNamara Below is a proxy for your use if you cannot attend the Annual Meeting. Please send your completed proxy to Anne Wells by e-mail at awells@nycla.org; by mail, Attention, Anne Wells, New York County Lawyers’ Association, 14 Vesey Street, New York, NY 10007; or by fax (212-406-9252) prior to the Annual Meeting on May 24, 2012.
PROXY For Annual Meeting of Members of the New York County Lawyers’ Association To be held May 24, 2012
RT @atlblog: Should you be a specialist or a generalist in your law practice? Some wise words from @TomWallerstein bit.ly/wK4O2H
@NYCLA Learn about careers for lawyers in the fashion industry at our next public forum conta.cc/ygUHZk
@NYCLA Learn ways to develop & improve your trial practice techniques at NYCLA’s upcoming CLE ow.ly/8Up0P
@MarkRaganCEO The 5 things that annoy people most about their jobs bit.ly/znbBEh
@LawPracticeTips The Professional’s Social Network: LinkedIn bit.ly/uszCdz #LawPractice #in
Know all people by these presents: That the undersigned Member of New York County Lawyers’ Association hereby constitutes and appoints Stewart D. Aaron, Barbara Moses, and Lewis F. Tesser or any of them, proxies of the undersigned, with full power of substitution to each, for an in the name, place and stead of the undersigned, to attend the Annual Meeting of Members of the New York County Lawyers’ Association, to be held at the Home of Law, 14 Vesey Street on May 24, 2012 at 5:30 p.m. and any adjournment or adjournments thereof; and thereat to vote upon all matters that may properly come before said meeting as fully and with the same effect as the undersigned might or could do if personally present at said meeting or any adjournment or adjournments thereof. The undersigned hereby revokes any proxy or proxies heretofore given by, for or on behalf of the undersigned to vote at said meeting or any adjournment or adjournments thereof.
Dated: ___________________________________________
___________________________________________________ (Signature) ______________________________ (Printed name)
(Provisional and law student members may not vote)
March 2012 / The New York County Lawyer
M E S S AG E F RO M BA R BA R A M O S E S P R E S I D E N T O F T H E N Y C L A F O U N D AT I O N
Dear Friends:
The law is a noble profession. But it is also a career and, like any career, requires nurturing at every stage. NYCLA can help.
Have you ever attended a NYCLA hosted networking event? They are as varied as NYCLA’s membership. In January, NYCLA hosted not one but two New Year’s networking events: one on January 8 at the Home of Law (with complimentary cocktails and refreshments), and one on January 25, in Battery Park City, to celebrate Chinese New Year with NYCLA’s Asian Practice Committee and the US-China CEO Association. The Young Lawyers’ Section followed up in February with “NYCLA Squares,” sponsored by Lucky Strike Lanes, which featured a talented group of “ready for prime time” NYCLA executives and committee chairs – plus door prizes! Committee involvement is another great way to network with other professionals in your field (or in a field that interests you). And unlike other bar associations, NYCLA does not restrict committee membership through waiting periods or application requirements. You can jump right in, work on the important issues of the day, and rub shoulders with accomplished practitioners in the field.
Perhaps you are looking for your first legal job, changing jobs, or trying to get back into the work force after the economic toll of the last few years. Did you know that NYCLA was the first bar association in the New York area to provide online local and national job listings? At the NYCLA Career Center, you can search for a legal job, post your resume, and sign up for job alerts – all through the NYCLA website. The Career Center also welcomes postings from legal employers who want to advertise open positions to NYCLA’s membership. Tip: For the most up-to-date information on new job opportunities, check your weekly e-news and sign up for job alerts.
These are among the programs that make us proud to be members of NYCLA. As you know, however, your dues do not cover all of the costs and expenses of the
benefits that NYCLA offers to its members. The NYCLA Foundation helps to make up the difference through the generosity of NYCLA members and others. If you are in a position to “give back” to the NYCLA community, I urge you to go to www.nycla.org and choose “Giving to NYCLA.” You can also mail a check, payable to the “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 website. Since the NYCLA Foundation is recognized by the IRS as a 501(c)(3) organization, gifts received by year-end are deductible to the extent provided by law. 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 bmoses@maglaw.com. Sincerely,
Barbara Moses President of the NYCLA Foundation
Using Social Media In Your Job Search
By Robert Half Legal
If you’re hoping to land a new position this year, or if your ongoing job search could use a boost, you may want to pay more attention to the power of social media. Here are some suggestions for how you can best use popular social media sites to enhance your job search: LinkedIn: If you’ve yet to establish a profile on LinkedIn, you may want to
consider it. Not only have many professionals come to view a LinkedIn profile as just as essential as a resume, but also hiring managers and headhunters are using it more often for recruiting purposes.
LinkedIn is also useful for connecting with others in your field by joining specialized groups that focus on your areas of interest and expertise. In addi-
tion, one of the most beneficial aspects of LinkedIn is that you can leverage your contacts to identify new ones.
Twitter: Another tool for expanding and energizing your network is Twitter, which has grown in popularity as a career-building medium. Once you’ve joined Twitter by creating a brief profile, you can begin connecting with others by finding people to “follow.” Start with professional groups and other legal resources, then expand your reach by following people those people are following or by searching by location, specialties or interests. By following prominent people and firms in your field, you can stay up-to-date on industry developments and trends, gaining knowledge helpful in your other networking activities and job interviews. Facebook: Unlike the more buttonedup LinkedIn, Facebook started primarily as a social networking site for telling friends what you’re up to, sharing photos and playing games. Since people now also network with it on a professional level and employers may search for information on job applicants using it, be careful about what you say on Facebook. Despite countless cautionary tales, users continue to damage their reputation by showing a lack of discretion on the site.
To Advertise in New York County Lawyer, Call 631-427-7000
NEW YORK
COUNTY LAWYER Stewart D. Aaron President
Sophia J Gianacoplos Executive Director
Melissa J. Yahre Assistant Executive Director of Marketing and Membership Development
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
Alanna Gluck Marian Goldman
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March 2012 / The New York County Lawyer
This March, the CLE Institute offers a wide variety of programs for practitioners of all levels. A complete calendar for March CLE courses is provided. Be sure to check our website at www.nycla.org for updated information.
March Featured Programs Ethics Institute
Ethical Dilemmas Confronted by Real Estate Attorneys Presented by NYCLA’s Ethics Institute March 27, 6-9 p.m. Learn about the ethical challenges faced on a daily basis by real estate practitioners including such issues as:
• Representing both the buyer and seller • Representing the buyer and the lender • Other types of dual status ( e.g., attorney and mortgage broker) • Acting as an attorney and real estate broker • Using clerks or paralegals to attend closings • Escrow and comingling of funds • Acting as counsel to co-op/condo and
CLE Institute
individual seller • Permissible ways to write checks • Engagement letters • Bookkeeping rule and • Producing records
Immigration Law Mission Impossible: What You Need to Know to Practice Immigration Law Successfully Two sessions: • Tuesday, March 6, 6-9 p.m. - Nonimmigrant Work-related Visa Categories and Obtaining a Green Card • Tuesday, March 13, 6-9 p.m. Family-based Immigration, Removal Proceedings and Overview of Asylum In these difficult economic times, immigration law reform continues to be a contentious issue. Attend this two part CLE and:
• Gain an overview of what you need to know to practice immigration law successfully from a panel of experts • Learn how to obtain the proper immigrant visa or “green card” for your client
Co-chairs: Eugene J. Glicksman and Gilbert C. Ferrer, Co-chairs, NYCLA Committee on Immigration and Nationality Law
DUFFY & POSILLICO AGENCY INC. Court Bond Specialists BONDS * BONDS * BONDS * BONDS Administration • Appeal • Executor • Guardianship Injunction • Conservator • Lost Instrument Stay • Mechanic’s Lien • Plaintiff & Defendant’s Bonds Serving Attorneys since 1975 Complete Bonding Facilities
IMMEDIATE SERVICE! 1-800-841-8879 FAX: 516-741-6311 1 Birchwood Court • Mineola, NY 11501 (Across from Nassau County Courts) NYC Location: 108 Greenwich Street, New York, NY 10006
Litigation Civil Trial Practice Institute: A Bridge the Gap for Attorneys Interested in Litigation March 9 and 10, 9 a.m.-5 p.m. Hear from an extraordinary panel of judges, litigators and leading academics, to take you through the entire state civil trial process. • Learn ways to develop and improve trial practice techniques within the context of personal injury, matrimonial and commercial litigation • Hear directly from judges and seasoned litigators
Program chairs: Robert Kelner, Kelner & Kelner and Hon Robert Lippman (Ret.) Faculty: Clifford Aaron, London Fischer LLP; Hon. Richard F. Braun, Sup. Ct., NY County; Tracee Davis, Zeichner Ellman & Krause LLP; Hon. Laura Drager, Sup. Ct., NY County; Professor
SAVE the DATE: Bridge the Gap 1, April 20 and 27 Design Contracts and Other Design Issues, April 18 Update on Cybersecurity Issues, April 24
Richard T. Farrell, Brooklyn Law School; Stephen Gassman, Gassman, Baiamonte, Betts & Tannenbaum; Hon. Judith J. Gische, Sup. Ct., NY County; Sarah Jo Hamilton, Scalise & Hamilton; David Jaroslawicz, Jaroslawicz and Jaros LLC; Herbert Monte Levy, Esq.; Hon. Israel Rubin, Greenberg Traurig; Jay G. Safer, Locke Lord Bissell & Liddell LLP; Elliott Scheinberg, Esq.; Harold Lee Schwab, Lester Schwab Katz & Dwyer, LLP; Richard L. Spinogatti, Proskauer Rose LLP; Barry Temkin, Mound Cotton Wollan & Greengrass; and Hon. Louis York, Sup. Ct., NY County.
Matrimonial Law Matrimonial Law: The Basics and Beyond Two-part program: March 21 and 28, 6-9 p.m. Hear from a panel of experts about the basics of matrimonial law and beyond:
• Hear how to handle the initial contact with a client; grounds, jurisdiction and service • Learn how to go about handling uncontested divorces, and domestic violence issues. • Explore agreements including prenuptual, stipulation of settlement and separation, child support, custody and attorney for the child, equitable distribution, domestic violence and ethical (See CLE on Page 5)
March 2012 / The New York County Lawyer
CLE Institute Continued from page 4
issues facing matrimonial attorneys Chair: Charlotte Lee, Esq Faculty: Hon. Tandra L. Dawson, Domestic Violence Part, Supreme Court, NY County, Hon. Matthew F. Cooper, Supreme Court, New York County and Steven Eric Liebman, Special Referee, along with court attorneys and seasoned practitioners.
Real Estate Law Purchasing and Managing Rent Regulated Property in NYC March 8, 9 a.m.-12:30 p.m. Join us for a program presented in partnership with the Rent Stabilization Association (RSA) that will explore the issues associated with purchasing and managing rent regulated property in New York City that will cover: • Rent Regulation: The Basics • Due Diligence: What Should I know About the Building • Due Diligence: What Should I Know About the Tenants • Management Tools & Resources • Tenant Screening • Leases and Rent Registration • Violations • Maximizing the Rent Roll
March Program Guide Tax Audits: How to Avoid Them; How to Defend Them March 5, 6-8 p.m. 2 MCLE Credits: 1 PP; 1 Skills; Transitional and Non-transitional
NYS Voluntary Compliance Disclosure March 12, 6-8 p.m. 2 MCLE Credits: 1 PP; 1 Skills; Transitional and Non-transitional
Mission Possible: What You Need To Know to Practice Immigration Law Successfully March 6 and 13, 6-8 p.m. 6 MCLE Credits: 2 Ethics; 2 PP; 2 Skills; Transitional and Non-transitional (also NJ)
The Grounding of the Costa Concordia: The High Cost of Hitting Rock Bottom March 6, 12-2 p.m. 2 MCLE Credits; 2 Professional Practice; Transitional and Non-Transitional (also NJ)
Race, Law and Gender March 7, 6-8:05 p.m. 2.5 MCLE Credits: .5 Ethics; 2PP; Transitional and Non-transitional (also NJ)
Purchasing and Managing Rent Regulated Property in NYC March 8, 9 a.m.-12:30 p.m. 3.5 MCLE Credits: 1.5 PP; 2Skills; Transitional and Non-transitional Program Co-sponsor: Rent Stabilization Association (RSA)
Civil Trial Practice Institute: A Bridge The Gap for Litigators March 9 and 10, 9 a.m.-5 p.m. 16 MCLE Credits: 3 Ethics; 6 Skills; 7
Register online: www.nycla.org
PP/LPM; Transitional and Non-transitional Matrimonial Law: The Basics and Beyond March 21 and 28, 6-9 p.m. 6 MCLE Credits: 1 Ethics; 3 PP; 2 Skills; Transitional and Non-transitional Cybersecurity: Risks, Best Practices and Security Challenges March 22, 6-9 p.m. 3 MCLE Credits: 1 Ethics; 2 PP; Transitional and Non-transitional (also NJ)
Preparing the Construction Accident Case: Plaintiff, Defendant and Expert Perspectives on the Labor Law March 26, 6-9 p.m. 3 MCLE Credits: 3 Skills; Transitional and Non-transitional Ethical Issues in Real Estate Practice March 27, 6-9 p.m. 3 MCLE Credits: 3 Ethics; Transitional 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.
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The New York Center for Neuropsychology & Forensic Behavioral Science Dr. N.G. Berrill, Director
[ Over 25 Years \ Providing Consultation to Attorneys & the Courts on Psycho-legal Matters • Criminal Cases: Competency Issues, Criminal Responsibility, Extreme Emotional Disturbance, Risk Assessment, Sex Offender Workups & Dispositional Planning
• Matrimonial & Family Court Cases: Custody/Visitation, Neglect/Abuse, Termination, Delinquency, Family Violence, & Adoptions
• Civil Cases: Competency Issues, Head Trauma,
Ethics Hotline March 1-15 Sarah Diane McShea 212-679-9090 March 16-31 Sarah Jo Hamilton 914-725-2801
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.
Sexual Harassment, Discrimination, Immigration, & Post-Traumatic Stress Disorders
Comprehensive Diagnostic & Treatment Services
MAIN OFFICE 26 Court Street, Suite 1711, Brooklyn, NY 11242 718-237-2127 LONG ISLAND OFFICE 45 North Station Plaza, Suite 404, Great Neck, NY 11021 516-504-0018 MANHATTAN 139 Manhattan Avenue, New York, NY 10025 212-280-3706
WWW.NYFORENSIC.COM drberrill@yahoo.com
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March 2012 / The New York County Lawyer
NYCLA In The News
Membership
A round-up of recent national and local news stories featuring NYCLA and its members. Bloomberg BNA Daily Tax Report Tax Clinics, Pro Bono Programs January 11, 2012 Stephen Lessard, program coordinator of NYCLA’s Tax Court Bar-Related Pro Bono Program, is quoted about how the program relieves the administrative burden of the Tax Court in dealing with pro se taxpayers and provides an effective means of improving communication between the government and unrepresented taxpayers.
New York Real Estate Lawyers’ Blog NYCLA Honors Loretta E. Lynch February 18, 2012 This blog post invites readers to join NYCLA and the Metropolitan Black Bar Association to honor Loretta E. Lynch, United States Attorney for the Eastern District of New York at the Tenth Annual Ida B. Wells-Barnett Justice Award Ceremony.
National Arbitration and Mediation, Inc./namadr.com Hon. Elizabeth Bonina Speaks at the New York County Lawyers’ Association January 27, 2012 NYCLA program, “So You Want to be a Trial Lawyer” is mentioned in this article.
Metrocorpcounsel.com Thomson Reuters Column: 40 Distinguished CLE Lecturers And Acclaimed Thomson Reuters Treatise February 23, 2012 NYCLA’s upcoming CLE, winning commercial cases in New York State Courts is featured on this web site.
Thomson Reuters News & Insights New York court administrators back restoring court hours January 30, 2012 This article mentions that NYCLA’s recent report highlights the widespread impact of last year’s budget cuts on the court system.
New York Law Journal February 23, 2012 Bar Groups Honor Lynch A photo from NYCLA’s 10th annual Ida B. Wells Justice Award Ceremony is included in this newspaper.
New York Law Journal NYCLA Urges Congress to Fund U.S. Courts February 17, 2012 This article covers how NYCLA is urging Congress to resist further budget cuts to the federal court system. Metrocorpcounsel.com Letter from the President of the New York County Lawyers’ Association February 17, 2012 This letter from NYCLA’s President to the readers of metrocorpcounsel.com talks about NYCLA’s career resources.
New York Law Journal Lawyers’ Titles and Law Firm Names in the Hi-Tech Era February 24, 2012 A 2008 NYCLA ethics opinion is cited in this article. Leader to Leader/New York State Bar Association Congratulations to the 2011 Bar Leaders Innovation Award Winners February/March issue NYCLA was awarded a Bar Leaders Innovation Award at the New York State Conference of Bar Leaders and this publication featured a photo of NYCLA leadership at the ceremony.
Build Your Rolodex & Network through NYCLA Did you know that as a NYCLA member you can search on nycla.org for other members and their contact information? Take advantage of this benefit to network—build relationships with people in your profession and help you in your job search. Log onto nycla.org with your member ID and then click on ‘Member Search’ under the ‘Members Only’section. From there, you can search for other NYCLA members by practice area, firm, law school, and more! After you have found networking contacts, you might think, “how do I write an initial networking e-mail?” Here are some guidelines to get you started: 1. Introduction – The first line should answer “how did you get my name?” This is where you need to establish a connection: Is she/he a fellow NYCLA member? Where did you find her/his name? 2. Who are you? – Tell the reader a little bit about yourself. Share your
background and what you are looking to do. FOCUS is key here. This part of the e-mail should not be an essay or your resume in written form. Think of it as a polite 1-2 line introduction to give the reader an idea of who you are and what you are looking to do. 3. Research – Do. Your. Homework. You must do your research before writing a networking e-mail. This will help frame your questions. It will also show the reader that you have a genuine interest in what she/he or her/his company does, etc. 4. Questions - After you have done your research, ask 1-2 specific questions. Ask for advice or any other questions you have about the company, industry, or the path the contact took to get where she/he is today. 5. Sincere Thank You – Always thank the person you are writing to for her/his time. Acknowledging busy schedules goes a long way!
Become a Better Leader: Commit to Continuous Learning By Joelle K. Jay, Ph.D. In order to excel in your work, in your life, or as a leader, you need to commit to continuous learning. Many leaders know this, but many more are missing the opportunities for powerful learning that could really help them get ahead on their goals. Leaders are encouraged to learn “on the job.” The problem is that many of us don’t. Either because we’re too busy, we forget, we don’t know what we need to learn, or we don’t have the resources we think we need, we end up learning by chance or command. Neither one is very powerful. Learning by chance means you take opportunities to learn whenever they show up, but you don’t necessarily go looking for more. A conference brochure arrives; it seems interesting; you go. A friend recommends a book; it looks good; you read it. You take opportunities to learn as they come to you – in other words, when it’s convenient. Learning by command means you learn when someone else demands it. When
your colleagues tell you that you need to learn to be more decisive, or when your profession requires that you get an advanced certification, or when your boss sends you to a workshop to learn specific skills, you are learning by command. There’s nothing inherently wrong with these approaches to learning. Any learning that advances your expertise and builds your capacity may be worth your time. Or it may not, and that’s the problem. You have so much potential, and there are so many opportunities to learn, and there is so much to be gained by learning that it simply doesn’t make sense to relegate your learning to the whims of chance and command. You need to learn by choice. Learning by choice means carefully setting up your own learning opportunities based solely on what you need to get better results. Learning by choice is based on a number of assumptions.
Learning is leadership. Learning is an essential component of leadership. Some experts go so far as to say learning is leadership, a leader’s constant quest for the improvement of the business, people, and results. As a leader, what do you need to learn? What leadership skills, strategic practices, or management techniques will help you be more effective? Look at your results, and notice where there’s room for improvement. What do you need to learn in order to improve those results? This is the kind of learning that supports powerful leadership. Learning is profit and competitive edge. The soul of business is innovation; the soul of personal leadership is the innovation of the self. You can’t have one without the other. If you want to have, run, or be part of a business that succeeds in a time of change, you need to be willing to change, as well. Think about it. If another company is doing better than yours, what do you need to learn to be better able to compete? If you personally are stuck in a rut in your career, what do you need to learn to get a more competitive edge? Without asking these questions, you will start to languish
in mediocrity, and that’s no place for a leader. Refuse to buy into the assumption that the economy, the market you’re in, or your products are creating your results. If you’re not happy with what you’ve got, go out and learn what needs to change. You’ll feel more in control, and you will learn to lead the way to a more powerful and profitable place. Learning is life. In addition to learning for all of the practical and rational reasons that contribute to your effectiveness as a leader, there’s one more: learning is part of the fun of life. When was the last time you picked up a new sport, game or hobby? We learn these things not because we have to, but because we want to. Your vision and goals will be infused with a new sense of exuberance when you commit to learning what you need to learn in order to achieve them. You will know that you can do anything you want to as long as you know how to learn. Learning is an essential component of leadership, but not all learning experiences (See Become a Better Leader on page 10)
March 2012 / The New York County Lawyer
Tips for Starting a New Job The desired end result of your career development efforts is greater career resilience. Career resilience is your ability to successfully adapt to career changes (whether they be economically, organizationally, or selfinitiated), make smart career decisions, effectively market yourself and your value, and proactively manage your career. Career resilience derives from a strong understanding of yourself, your strengths, and your goals. Your economic value in the marketplace and your ability to anticipate and adapt to career-related changes and challenges are also factors of career resilience. Various techniques and tools are essential in proactively managing your career. Your career is a constantly evolving résumé. Staying on top of your accomplishments and keeping your résumé current will help you stay fresh and ensure you are on the right track. You should think about these questions: • How will I keep myself on track when I find myself straying? • Who will be on my career support team? • How will I know if I am on the wrong track? To become resilient, you really need to be forward thinking and oriented toward the future. You need to ask yourself the basic question, “How can I best equip myself for success now and tomorrow?” To help you equip for your new career, you need to develop a 30-60-90 day plan. The 30-60-90 Day Plan It is all too easy to lose oneself in the excitement and challenge of a new career, job, and industry. You have worked hard to make the transition. Now it is time to make the right impact, right? Yes and no. Of course, you must learn all you need to learn and do all you need to do. Included in “all you need to learn” and “all you need to do” is the idea of having a plan. Unless you expect this to be the last job you will ever have, this job is part of your overall career strategy. As already learned, it is important to have specific goals at each stage of one’s career. Before you start your new job, you need to sit down and establish some goals for the first 30 days, 60 days, and 90 days. Some questions to help you get started are listed below: • What do you want to accomplish to validate your new employer’s faith? • What do you want to accomplish to lay the groundwork for continuing progress? Depending on your manager and the company’s policies, you should establish some basic goals with your immediate superior for each of these milestones, and then work together to set a review process in place. You should focus on the
following activities during each of the specified time periods. 30 Days During the first 30 days on the new job, you should: • Learn about the company and its products or services • Understand the company’s “written” values and cultural traits • Understand organizational structure (reporting relationships) • Learn about the responsibilities of your role • Set small and achievable goals to generate modest wins • Meet with key managers to understand company dynamics 60 Days Within 60 days of being on the new job, you should: • Recite the issues the company faces with respect to its products and services • Know the company’s key customers by name • Understand who holds power and influence in the company (it is not necessarily the managers) • Set preliminary expectations about your role • Take on slightly bigger problems or projects to generate important wins • Meet with key influencers to better assess company dynamics 90 Days After 90 days on the new job, you should: • Make recommendations/observations that you notice about product and service strengths/weaknesses • Gain perspective on what key customers think about the company • Reshape your role to fit the needs of the organization and customers • Build relationships with key internal and external stakeholders • Introduce plans and recommendations for tackling bigger problems • Be open to feedback and insight about your contributions and style ©2012 TalentGuard
Networking Do’s and Don’ts Who do you know who can help you secure your next job? Networking—a way of meeting people in your chosen industry who you can build relationships with and help you in your search—can be a valuable of the aspect of the job-search process. Statistics show that 60 percent of people find jobs through successful networking. When networking, keep the following do’s and don’ts in mind: Do always err on the side of “professional” Do check your communications for misspellings, grammar, etc. Do your homework. Take the time to learn about your networking contact’s company or past experience. DON’T send along your resume unless the contact has requested it. DON’T ask about job openings. DON’T expect anyone to do the work for you.
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Recent Events
March 2012 / The New York County Lawyer
NYCLA Honors United States Attorney NYCLA’s President, Stewart D. Aaron, poses with Ida B. Wells-Barnett, Justice Award winner, Loretta E. Lynch, United States Attorney for the Eastern District of New York (third from left) following the Award ceremony at NYCLA Home of Law on Tuesday, February 21. R. Nadine Fontaine, left, president-elect of the Metropolitan Black Bar Association; Catherine A. Christian, a Manhattan assistant district attorney who presented the award (second from left); Brooklyn Supreme Court Justice Yvonne Lewis (third from right); and Queens Supreme Court Justice Pam Jackman-Brown (second from right) were also on hand to congratulate Ms. Lynch. (Photo credit: Rick Kopstein, New York Law Journal)
Federal Courts Committee Hosts Special Guests
The Honorable Victor Marrero, Magistrate Judge for the Southern District of New York, was the guest speaker at the January 18 Federal Courts Committee meeting hosted by former Committee Chair Richard A. Williamson of Flemming Zulack Williamson Zauderer. Pictured from left to right are Mr. Williamson, Judge Ellis, and Gregg Kanter, Chair of the Committee.
Congratulations!
The Honorable Robert Levy, Magistrate Judge for the Eastern District of New York, was the guest speaker at the December 7 Federal Courts Committee meeting hosted by Jai Chandrasekhar of Bernstein Litowitz Berger & Grossmann LLP. Pictured from left to right are Judge Levy, Carolyn Kubitschek, Gregg Kanter, Chair of the Committee, and Mr. Chandrasekhar.
NYCLA Congratulates: Hon. Sherry Klein Heitler, Administrative Judge for Civil Matters, First Judicial District as its Justice Louis J. Capozzoli Gavel Award recipient & The Honorable Kevin Nathaniel Fox Appointed Chief Magistrate Judge of the Southern District of New York
Call for Applications: Honorable Charles L. Brieant, Jr. Judicial Internship First- and second-year law school students are invited to apply to the Southern District of New York’s Honorable Charles L. Brieant, Jr. Judicial Internship for the summer of 2012. Work under the supervision of the Chief Judge to research and write about issues that confront the Court as a whole and benefit from a $5,000 tuition credit. To apply, send a cover letter, a resume, a writing sample, and a transcript to The Honorable Loretta A. Preska, 500 Pearl Street, Room 2220, New York, New York 10007, by March 19.
Recent Events
March 2012 / The New York County Lawyer
CLE Hosts Mentoring Kick-Off Mentors and mentees of the 2012 ”class” of NYCLA’s Mentoring Program gathered on February 8, for a kickoff cocktail reception and program. Mentors and mentees met their counterparts, while mingling with other members of the program and the Advisory Board. They then attended a CLE program on How to Get the Most Out of a Mentoring Relationship and Improve the Way You Practice Law. Fifteen mentors and 15 mentees are participating in the 9-month program which combines one-on-one mentoring relationships with CLE programs and informal networking opportunities.
NYCLA President Stewart Aaron meets his mentee for the first time
NYCLA Hosts “Boost Your Energy and Reduce Stress”
Alex Hadassah Anzalone, founder of Alex Anzalone Coaching, Holistic Health Coach and New York Attorney with a passion for healthy living, presented “Boost Your Energy and Reduce Your Stress” on January 19 to a group of NYCLA members. Anzalone taught attendees easy and practical ways to make healthy food choices at work; have energy all day long, every day; reduce sugar cravings; and reduce stress.
Third time mentor Murray Schwartz (center) meets his mentee.
Public Forum/Networking Mixer
Adam Roth, Esq. (second from left), moderates a panel of experts at NYCLA’s January 26 event, So You Want to Be a Trial Lawyer? Lindsey James, Corporation Counsel Tort Division, Kings County (far left); Hon. Elizabeth Bonina, New York Supreme Court (center); Ryan O’Dell, Bronx Defenders (second from right); and Charlotte Owens, Brooklyn District Attorneys’ Office, all participated in this Public Forum/Networking Mixer.
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10 March 2012 / The New York County Lawyer
To make suggestions about book, e-book or database purchases, please contact Dan Jordan by email at djordan@nycla.org or by phone at 212-267-6646 ext. 204.
Library Notes New Editions
West’s New York Practice Series: 2011-2012 General Index Pamphlet (Thomson West).
Featured Internet Site
Newly Updated
Bazelon Center for Mental Health (http://www.bazelon.org/) • A good place to begin research into mental disability law. • The nonprofit center, has lobbied and litigated in order to improve access to mental health services since 1972 • The text of the Health Care Reform Act and its implications for mental health, social security disability and the threat to children’s disability benefits can be found with information on mental health services for children and special education, including the transition to adulthood and campus mental health services. • Each issue links to resources such as rules, laws, position statements and links to helpful resources. • If you click on “in Congress” at the top of the homepage, you can see the Center’s views of pending legislation. Meanwhile, if you choose to look at “courts” you can find summaries of current cases, decisions and press releases on administrative orders. • You can subscribe to an e-mail version or to the Alerts on various subjects.
Bender’s Federal Practice Forms Release number 139 (LexisNexis Matthew Bender). Collier on Bankruptcy, 16th edition, Release number 120 (LexisNexis Matthew Bender). Employment Law in New York, 2011-12 pocket parts (LexisNexis Matthew Bender). Moore’s Federal Practice, 3rd edition, Release number 172. (LexisNexis Matthew Bender). New York Civil Practice: CPLR Release number 142 (LexisNexis Mathew Bender Personal Injury Practice in New York, 2011-12 pamphlets and CD (LexisNexis Matthew Bender). Periodicals The Clock is Ticking on Rare Tax Planning Opportunities, Trusts and Estates: a New York Law Journal Special Report, New York Law Journal (January 30, 2011). Litigation Department of the Year, the American Lawyer (January 2012). Worker Paralyzed After Being Hit by Beam that Fell from Crane: Settlement $12,999,999.99, VERDICTSEARCH (December 12, 2011).
Electronic Research Center CLE Programs March Westlaw: Basic March 7 – 10-11 a.m. 1 MCLE Credit: 1 Skills; Transitional Free and open to the public Westlaw: Litigation March 7 - 11:30 a.m.-12:30 p.m. 1 MCLE Credit: 1 Skills; Transitional Free and open to the public Lexis: News and Public Record March 8 - 10:30 - 11:30 a.m. 1 MCLE Credit: 1 Skills; Transitional Free and open to the public Lexis: Advance March 8 – 12-1 p.m. 1 MCLE Credit: 1 Skills; Transitional Free and open to the public Lexis: Expert Witness March 8 - 1:30 - 2:30 p.m. 1 MCLE Credit: 1 Skills; Transitional Free and open to the public
U.S. Bankruptcy Court Electronic Case Filing System March 21 – 10 a.m.-12:30 p.m. 2.5 MCLE Credits: 2.5 Skills; Transitional Member: $65 Non-member: $85 Non-legal Staff: $35 Using Bloomberglaw.com for Litigation March 22 – 10-10:50 a..m. 1 MCLE Credit: 1 Skills; Transitional Free and open to the public Using Bloomberglaw.com for a Corporate Transactional Practice March 22 - 11:05 - 11:55 a.m. 1 MCLE Credit: 1 Skills; Transitional Free and open to the public
April Lexis: I April 4 – 10:30 – 11:30 a.m. 1 MCLE Credit: 1 Skills; Transitional Free and open to the public
Westlaw: Intermediate March 20 - 1:30 - 2:30 p.m. 1 MCLE Credit: 1 Skills; Transitional Free and open to the public
Lexis: Update Enhancements Research April 4 – 12-1 p.m. 1 MCLE Credit: 1 Skills; Transitional Free and open to the public
Westlaw: Immigration March 20 – 3-4 p.m. 1 MCLE Credit: 1 Skills; Transitional Free and open to the public
Lexis: Expert Witness April 4 - 1:30 - 2:30 p.m. 1 MCLE Credit: 1 Skills; Transitional Free and open to the public
Westlaw: Advanced April 12 – 10-11 a.m. 1 MCLE Credit: 1 Skills; Transitional Free and open to the public Westlaw: Security Research April 12 - 11:30 a.m.-12:30 p.m. 1 MCLE Credit: 1 Skills; Transitional Free and open to the public U.S. Bankruptcy Court Electronic Case Filing System April 18 – 10 a.m.-12:30 p.m. 2.5 MCLE Credits: 2.5 Skills; Transitional Member: $65 Non-member: $85 Non-legal Staff: $35 Using Bloomberglaw.com for Litigation April 19 – 10-10:50 a.m. 1 MCLE Credit: 1 Skills; Transitional Free and open to the public Using Bloomberglaw.com for a Corporate Transactional Practice April 19 - 11:05 - 11:55 a.m. 1 MCLE Credit: 1 Skills; Transitional Free and open to the public Westlaw: Basic April 24 - 1:30 - 2:30 p.m. 1 MCLE Credit: 1 Skills; Transitional Free and open to the public Westlaw: Employment April 24 – 3 - 4 p.m. 1 MCLE Credit: 1 Skills; Transitional Free and open to the public
Access Your Library Resources There are multiple areas to hone in on in order to shape your career in the legal field, including the area of legal research. The NYCLA Law Library, with a multitude of resources, including fee-based research and copying services and a strong print collection and access to Lexis, Westlaw, Bloomberg and many other databases, can help you start your career, restart your career, or mold your career to the best approximation of what you want. Open to members, the Law Library offers unlimited, no-cost, onsite access to and training on research tools. Our professional librarians offer personalized reference assistance to users in person, over the phone and via e-mail on the following services: • Records & Briefs The reference staff will locate, pull and copy any Record and Brief in the Library’s extensive collection. Through its Research Services, the Library staff will also research the briefs for any particular testimony. • Expert Witness Research The reference staff will help you identify expert witnesses in your area of interest. The reference staff can also search for available expert witness testimony from particular experts or on a particular subject matter and reports which can be found in our extensive collection of trial transcripts. • Photocopy and Fax Service Cases, statutes, law review articles, or snippets from legal treatises may be ordered from the NYCLA Library. • Legislative History and Bill Jacket Retrieval Service The Library’s collection includes a large number of historical statutes and New York State Bill Jackets in both microfiche and hard copy. Orders may be placed for bill jackets and legislation not included in the Library’s collection. NYCLA’s trained reference staff will compile New York legislative histories upon request. • New York State Administrative Regulations The NYCLA Library has the superseded New York Code, Rules and Regulations. As part of the library Research Services, the library’s skilled staff can help you determine the regulations in place at an earlier date. • Interlibrary Loan Lending & Photocopy The Library accepts lending and photocopy requests from other libraries. Certain lending and copying restrictions apply. The Library provides copy and retrieval services for items held in the Law Library’s collection. Upon request, the Library’s Interlibrary Loan Service (ILL) will handle borrowing and copying requests for items held at other libraries for our members. NYCLA members may also borrow some materials from the NYCLA collection for short periods of time at reasonable rates. • People and Asset Searches The reference staff e-collection can assist patrons in locating current and historical addresses for individuals and perform assets searches for real property, aircraft, boats and automobiles. Questions? Reach the NYCLA Library by e-mail at reference@nycla.org, by phone 212-267-6646, x204, or fax at 212-791-6437. Copyright Restrictions NOTICE: WARNING CONCERNING COPYRIGHT RESTRICTIONS The copyright law of the United States (Title 17, United States Code) governs the making of photocopies or other reproductions of copyrighted material. Under certain conditions specified in the law, libraries and archives are authorized to furnish a photocopy or other reproduction. One of these specific conditions is that the photocopy or reproduction is not to be “used for any purpose other than private study, scholarship or research.” If a user makes a request for or later uses a photocopy in excess of “fair use,” that user may be liable for copyright infringement. This institution reserves the right to refuse to accept a copying order if, in its judgment, fulfillment of the order would involve violation of the copyright law.
Publications
March 2012 / The New York County Lawyer 11
County Bar Associations Applaud NYCLA’s Commercial Litigation Treatise
Many county bar associations throughout New York State have recently published book reviews in their newsletters of the Third Edition of Commercial Litigation in New York State Courts, a joint venture of NYCLA and Thomson Reuters. The critical acclaim by these county bar associations for the Third Edition of this treatise has been extraordinary. NYCLA is proud to share the following excerpts from some of these book reviews with NYCLA’s members.
Albany County Bar Association: The review in the Albany County Bar Association Newsletter stated: “A legal treatise is worth the cost of acquisition if it will help you work faster or find answers that might otherwise evade you. The third edition of ‘Commercial Litigation in New York State Courts’ does both and is highly recommended if you do any volume of commercial litigation work.” Erie County Bar Association: The review in the Eric County Bar Association Bulletin concluded by stating that “this treatise is a ‘must have’ reference work for both experienced and new commercial litigators.” Nassau County Bar Association: The book review in the Nassau Lawyer concluded that “Commercial Litigation in
Become A Better Leader (Continued from page 6)
are equally powerful. Learning by choice means understanding exactly what you need to learn in order to achieve your vision. Try this simple exercise to sharpen your approach to learning.
New York State Courts, as updated and expanded in its third edition, continues to be an indispensable resource for anyone who litigates commercial cases in New York State courts.”
Oneida County Bar Association: The review in the Oneida County Bar Association Bar News concluded: “The utility of this book for New York practitioners cannot be overstated. I know of no other work that provides such comprehensive coverage of the procedural and substantive commercial law of this state. The practitioner is provided with the law for both the starting point and for the end of commercial litigation in New York State and a first-rate analysis of everything in between.” Suffolk County Bar Association: The review in The Suffolk Lawyer stated: “It is the opinion of this reviewer that the Third Edition of Commercial Litigation in New York State Courts is an indispensable resource which should be a part of every commercial litigator’s library. Bob Haig and the many judges and lawyers who contributed to this great work are truly deserving of the thanks of the commercial litigation bar for providing us with a comprehensive, authoritative and eminently readable source of pertinent information and • Think about your vision or an important goal. • Brainstorm. What do you need to learn in order to achieve this vision or goal? • Choose one area in which to focus your learning, and choose the one that is likely to have the biggest impact. • Ask yourself, “What’s the most powerful way I can learn in this area to get the best and fastest results?”
invaluable practical and strategic advice.”
Westchester County Bar Association: The review in the Westchester County Bar Association Newsletter stated: “The original work and subsequent editions have become the leading treatise on commercial law in the State of New York and an important resource for commercial practitioners and members of the judiciary alike . . . . In the final analysis, Commercial Litigation in New York State Courts, Third Edition, is an excellent treatise on the subject and a vital and important addition to the library of the Bench and Bar.”
This six volume, 7,769 page treatise, contains the work of 144 principal authors. Former NYCLA President Robert L. Haig of Kelley Drye & Warren LLP serves as the Editor-in-Chief. The Third Edition is a step-by-step practice guide that covers every aspect of a commercial case in New York State courts, from the investigation and assessment that take place at the inception through pleadings, discovery, motions, trial, appeal, and enforcement of judgment. Great emphasis is placed on strategic considerations specific to commercial cases. The treatise also contains 38 substantive law chapters that cover the subjects most commonly encountered in commercial cases. In
This approach will steer you away from learning by chance and help you choose your learning, so it’s more strategic and leads directly to your vision. If you really want to lead well and live well, you must learn to learn well, too. ABOUT THE AUTHOR Joelle K. Jay, Ph.D. (http://joellekjay.com/) is an executive
addition, there are hundreds of pages of essential litigation forms and jury charges in print and on a CD-ROM that comes with the set.
More information about the Third Edition of Commercial Litigation in New York State Courts is available by calling Thomson Reuters at 1-800-344-5009 or online at www.west.thomson.com. NYCLA members receive a 40 percent discount from the list price. All royalties from sales of the treatise and its annual pocket parts go to NYCLA. coach specializing in leadership development and the author of The Inner Edge: The 10 Practices of Personal Leadership, which shows leaders how to improve their effectiveness by learning to lead themselves. Her newsletter, Inner Edge Insights, offers articles, exercises, tips, quotes, and success stories from real leaders to help you excel. To register, please visit www.TheInnerEdge.com and click on Newsletter, or email Info@TheInnerEdge.com.
12 March 2012 / The New York County Lawyer
Committee Connection
Misconceptions about New York State Libel Law By Evelyn Konrad, Esq. The First Amendment of the U.S. Constitution, especially Freedom of Expression, continues to be the most emulated part of our Constitution throughout the world.* The Freedom of Expression, however, is also one of the most misunderstood areas of constitutional law. And New York courts are known to make it harder to litigate a libel case than for a camel to glide through the eye of a needle.
I have been a plaintiff in a New York State libel suit, and today, two years after its commencement and after an Appellate Division decision, my questions are based on my Record on Appeal and on my research which may help other libel litigators in this State. Current New York State libel law
In his opinion in the Sandals(1) case, the Hon. David B. Saxe of the New York State Supreme Court Appellate Division, First Department, demystified libel law in New York State:
“The approach now used in this State for determining which statements are protected opinion and which are unprotected factual assertions is based on a four-part formula enunciated in Ollman (2). . . The four factors of the Ollman formula are: (1) whether the statement at issue has a precise meaning so as to give rise to clear factual implications; (2) the degree to which the statements are verifiable, i.e. ‘objectively capable of proof or disproof’;... “
Justice Saxe added that the two context parts of the Ollman formula were changed by the U.S. Supreme Court:
“The United States Supreme Court substantially altered the last two ‘context’ considerations of this formula in Milkovich(3), which decision ‘put an end to the... misperception – traceable to dictum in Gertz(4) that... there is a wholesale defamation exemption for anything that might be labeled ‘opinion.’” Opinion Can be Actionable in New
Meeting Schedule Don’t miss NYCLA’s March Committee Meetings! March 5
Law Related Ed. Judicial Section
4th Floor Board Room, 5:45pm Room #6, 4th floor, 6 p.m.
March 6
Supreme Court
2nd Floor Lounge, 5:30pm
March 8
Central Screening
4th Floor Board Room, 6 p.m.
March 13 Animal Law
Civil Rights & Liberties
Taxation
Cypberspace
Health Law
4th Floor, Room # 5, 6 p.m.
4th Floor, Room # 6, 6 p.m.
4th Floor Board Room, 6 p.m.
4th floor, Room #2, 6:30 p.m.
4th floor, Room #4, 6:30 p.m..
March 14 Membership
4th Floor Board Room, 8:30 a.m.
March 15 Tort Law
4th Floor, Room # 5, 6 p.m.
March 20 Civil Court Practice Immigration
Young Lawyers’ Section
4th Floor Board Room, 5:30 p.m.
4th Floor, Room # 5, 6 p.m. Blank Rome, 6:30 p.m.
*Guest speakers, Andrew Gurman, Managing Director, Michael Lord & Co. and Jill
Backer, Brooklyn Law School Career Center, on “The State of the Job Market” March 21 Law & Literature Minorities & The Law Women’s Rights
Criminal Justice Section
March 29 Election Law
4th Floor, Room #6, 6 p.m
*Typhoon by Joseph Conrad 4th Floor, Room #5, 6 p.m.
4th Floor, Room # 4 6 p.m.
4th Floor Board Room, 6 p.m. 4th Floor, Room #2, 6 p.m.
As a NYCLA member you can join any committee you like. Join today at www.nycla.org.
York State and Words Matter
The Hon. Judith Kaye, former Chief Justice of the New York State Court of Appeals, put it this way in her majority decision in Immuno(5): “... We did not, and do not, hold that all letters to the editor are absolutely immune from defamation actions, or that there is a wholesale exemption for anything that might be labeled ‘opinion.’” “... In determining whether speech is actionable, courts must . . . consider the impression created by the words . . .from the point of view of the reasonable person.”
In brief, it is the “reasonable person” who would construe a statement as defamatory.
In another recent decision by the Appellate Division, 1st Department, namely in GS Plasticos Limitada(6), the court said, “Based on use of the words ‘it is likely’ and ‘may’ when describing defendant’s purported misconduct, an average reader would understand these words ‘as mere allegations to be investigated rather than as facts.”** This the same rationale won the defendant a decision in the oft-quoted and often misunderstood Brian(7) case. But it is the court that determines what statements have evidentiary value and which ones do not. In libel cases especially, this choice of evidence can be a challenge to objectivity.
The Reasonable Person Is Supposed to Determine Meaning of a Word
A layman’s interpretation of many words is likely to differ sharply from the meaning that judges might give it. The court in my libel suit held that the word “discharged” was not defamatory because an attorney may be discharged by a client at any time, with or without cause. This fact is well known to the legal community. But what about the “reasonable person” who gets his news from a Village newspaper and from cable news channels? Might that “reasonable person” interpret “discharged” as “fired,” with all its negative implications?
From their decision dismissing the libel suit being discussed here: “The assertion that plaintiff, an attorney, had been discharged by a client, was true. . .” But three of the appellate judges ignored their own unanimous decision, reprinted in the voluminous Record on Appeal, where the same three judges had granted plaintiff’s 6 October 2009 motion “for an order relieving her as appellant’s counsel,” after eighteen months of successful litigation. Substantial Truth Since truth of a statement is a complete defense against a libel action, the phrase that a statement is “substantially true”
takes on enormous evidentiary weight. Yet the standard most frequently misconstrued is the libel defense called “substantially true.” The courts often rely on a 1934 case, the Fleckenstein(8) case. This case states that “substantially true” is applicable only within shadings of facts, not contradiction. Two examples:
If an attorney claims that he stated the same facts in seven motions or memoranda of law, but he had stated those facts either in six or in eight court documents. Then, in accordance with Fleckenstein, the attorney’s statement is “substantially true.” Suppose, however, that a litigant states that “Roger is alive and well,” but it turns out that Roger died two months earlier. Is the statement “Roger is alive and well” to be judged “substantially true”? Clearly not. Are Malice or Prior Defamation Insurmountable Obstacles to a Libel Claim?
Proving malice becomes important only in the case of a “public figure” or someone who has become a “limited public figure.” However, malice is defined in one of two ways: (1) the defendant wrote the defamatory statement knowing it was false or with reckless disregard for he truth, or (2) the common-law standard of ill will. The fact that a false accusation had previously been published “does not mean that the fact that the plaintiff had been falsely accused earlier means that he could not be further injured,” in Stern(9). And, in Charles Atlas(10), the court held that “an individual’s challenge to a current statement that had not been challenged earlier did not support a finding that an individual was libel-proof.” In the defendant’s letter to the editor, at issue in the dismissed libel case, the defendant boasts that he had never met the plaintiff nor spoken to her. In Immuno(5), the editor had sent the McGreal letter to the plaintiff before publication, giving the plaintiff a chance to make corrections.
Libel cases may arise out of contract disputes, out of employment practices, in a professional competition, and even in the context of volunteer services. And the court decisions and the precedent cases are as varied as the situations ending in a libel suit. The libel suit mentioned in this article which I was a plantiff occurred after six years of contentious land-use litigation and it involved much of the libel law outlined above. * From a study by Prof. David S. Law of Washington University and Prof. Mila Versteeg of the University of Virginia, previewed in “We the People’ Loses Followers,” The New York Times, February 7, 2012, and to be published in
(See Libel Law on page 13)
March 2012 / The New York County Lawyer 13
Committee Connection Criminal Justice Section Advocates for Sealing Reform
More New Yorkers than ever have discoverable criminal records that could come up during a background check. Currently, New York State does not have an expungement or sealing law applicable to adults who are convicted of felonies, misdemeanors, or petty offenses, other than drug defendants who have completed judicial diversion programs, DTAP programs, or certain sentences of parole.
Other than these exceptions, a conviction follows an ex-offender to the grave. But the New York legal community is looking to create change in this arena to allow a person with a criminal record to have a “second chance” after a suitable period of lawful living and rehabilitation, to pursue employment, licensing, housing, education, and other benefits without the stigma of a prior arrest or conviction. Without employment, ex-offenders cannot meet their own or their families’
Fashion Law Committee Brings Style to NYCLA
NYCLA’s Fashion Law Committee is notorious for bringing style to NYCLA. This past fall, it hosted a panel of Fashion Lawyers on the challenges of Fashion Law, which included FIT Professor Guillermo Jimenez who covered “The Innovative Design and Piracy Protection Act” (IDPPA) now pending in Congress, and the three distinct kinds of “knocking off” a Fashion Design. While one kind of ‘knocking off’ is legal, the second kind risks civil penalties, and the third kind risks criminal penalties.
Panelist Viviana Mura, Esq. expounded on using Trademark Law to protect Fashion Designs, e.g. the famous shoes whose “red soles” noted Designer Christian Louboutin has been attempting to trademark. Ms. Mura also explained the spectrum of protection generally available under Federal Trademark Law.
Panelist Joseph Murphy, Esq., a Fashion and Patent Attorney, explained the use of patents to protect Fashion Designs in footwear, underwear, and in outerwear such as dresses. He emphasized how Design Patents could be used to greater effect to protect Fashion Designs.
Libel Law (Continued from page 12)
June 2012 in the New York University Law Review. ** The defendant in the libel case previously mentioned that each of his four damaging statements as “unimpeachable facts,” not as allegations, even though every one of these statements was and is proven to be false in the 830-page Record on Appeal, referred to in plaintiff’s briefs.
And in March, for lawyers interested in exploring careers in the fashion industry, the Committee will host a Public Forum open to the public, Getting on the Catwalk: Careers for Lawyers in Fashion Law, on March 8 at 7 p.m.
Event Chair Quinn Taurman, NY Law School, will moderate a panel of experts including Karen Ash, Partner and National CoChairperson, Intellectual Property Department, Katten Muchin Rosenman LLP; Charles Colman, Charles Colman Law, PLLC; David Faux, Law Offices of David Faux; Guillermo Jimenez, Professor (F.I.T.-SUNY, Iona, I.S.M.); Barbara Kolsun, General Counsel & VP, Stuart Weitzman, LLC; and Heather McDonald, Baker Hostetler LLP. NYCLA members interested in this area are encouraged to email Fashion Law Committee Chair Joseph Murphy at lawyer@joemurphy.com. FOOTNOTES (1) Sandals Resorts Int’l Ltd. v. Google, Inc., 86 A.D.3d 32; 925 N.Y.S.2d 407 (1S1 Dep’t 2011) (2) Oilman v. Evans, 750 F.2d 970, (DC Cir 1984), cert denied, 471 U.S. 1127, (1985) (3) Milkovich v. Lorain Journal Co., 497 U.S. 1 , (1990) (4) Gertz v. Robert Welch, Inc. 418 U.S. 323, 339 (l974) (5) Immuno AG v. 1’.1oor-Jankowski, 77 N.Y.2d 235 (N.Y, Ct. of Appeals 1991)
S T R I C T L Y
basic needs, and a criminal conviction can be an insurmountable hurdle to employment.
The New York State Bar Association (NYSBA)’s Criminal Justice Section’s Final Report and Recommendations Regarding Sealing of Certain Crimes in New York State was approved by the NYSBA House of Delegates on January 27, 2012. The Report recommends an amendment to the Criminal Procedure Law that would permit a person to apply to seal a record of conviction, rendering court records inaccessible and protected unless the person is arrested for or formally charged with any misdemeanor or felony offense.
NYCLA’s Criminal Justice Section, which has advocated for sealing reform for several years, contributed amendments to the Report for inclusion in a state bill. “NYCLA has been on record as supporting legislative reform of New York’s antiquated statutory scheme for sealing arrest, prosecution and conviction records for those involved in the state’s criminal justice system,” says Hon. Michael Yavinsky, former Chair of the Section and Member of the Board of Directors. “The NYSBA’s current sealing proposal should be supported…because it is a natural extension of the NYCLA position.” NYCLA proposed a two-year waiting period before a person convicted of a negligible petty offense can apply for sealing and a 20-day notice requirement to apprise prosecuting agencies of a sealing application. Join the Criminal Justice Section to help NYCLA advocate for sealing reform and other key criminal justice issues—visit nycla.org and click on ‘Committees’ to get involved.
(6) GS Plasticos Limitada v. Bureau Veritas, 84 A.D.3d 518; 922 N.Y,S.2d 365 (151 Dept. 2011) (7) Brian v. Richardson. 87 N.Y.2d 46 (1995) (8)Fleckenstein v. Friedman, 241 A.D. 212, 271 N.Y.S.624 (1934) (9) Stern v. Cosby, 645 F. Supp. 2d 258, (S.D.N.Y.2009) (10) Charles Atlas Ltd. v. Time-Life Books, Inc., 570 F. Supp. (S.D.N. Y,1983) (II) Roche v. }.1uivihill, 214 AD.2d 376,625 N.Y,S.2d 169 (lS! Dep’t. 1995)
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Committee News Committee on Supreme Court Award Committee on the Supreme Court’s recipient of the Louis J. Capozzoli Gavel Award at our 2012 Law Day Luncheon on April 27 at Cipriani Wall Street will be Hon. Sherry Klein Heitler, Administrative Judge Civil Branch, Supreme Court. The Award will be presented to her by Hon. Betty Ellerin, former Presiding Justice, Appellate Division, First Department.
Environmental Law Committee Fights for Water Regulations
NYCLA’s Environmental Law Committee recently submitted comments in response to the New York State Department of Environmental Conservation’s (DEC) proposed regulation of the use of New York’s water resources that would implement a permitting, registration and reporting program for water withdrawals equaling or exceeding a threshold volume of 100,000 gallons per day.
Focus on Advocacy NYCLA is urging Congress to resist legislation that would entail further drastic reductions in the budget for the federal judiciary. NYCLA’s President Stewart D. Aaron sent letters to senators and representatives, along with information from the Chief Judges of the Southern and Eastern Districts of New York detailing the effect that budget cuts would have on their courts, and a copy of the Public Hearing Report published last month by NYCLA.
Young Lawyers
14 March 2012 / The New York County Lawyer
Tips for Summer Associates
By Brett S. Ward
Five years ago, there would be many who would simply offer the following advice in response to this article title: “do not do anything really stupid and you will be fine.” But as anybody reading this already knows, times have changed. Almost uniformly, summer associate class sizes have decreased, as have the size of the classes hired after law school. Simply put, there is no guarantee that a summer associate position will automatically turn into a post-law school job. Here are a few tips for those who want to better their own chances that it will land you an offer:
Make No Mistake, This is Your First Impression: Whether your assignments are substantive or not, require tremendous effort or are quite brief, or you are assigned to work with a senior partner or junior associate, your time as a summer associate is your first, and may be your only, chance to make a good impression on your employer. It is unlikely that you are going to be inundated with large amounts of substantive work requiring all nighters, so take the time you have to excel at your first few assignments. If you are asked to digest a deposition, make sure your digest is easy to read, sufficiently detailed, and typo free. The summer will fly by and your opportunities to work with different lawyers may be somewhat limited, so make sure the first few attorneys with whom you work are impressed with the product you put on their desk.
Be Social, But Not Too Social: Inevitably, summer programs have various social events that are scheduled throughout the season. This provides the firm with an opportunity to show you
that it is not all work and also provides the attorneys with an opportunity to get to know the summer associates on a more personal level. The main purpose is for you to have fun, but this is not Las Vegas, what happens during the social events does not necessarily stay at the social events. Stories about excessive alcohol consumption and other unfortunate conduct, such as rude and insensitive behavior, are going to get back to the hiring partners. That being said, you should make an effort to attend most, if not all, of the scheduled events. And when you are there, try to have a good time, just stay in control.
Dress for Success: If you are going to stand out, make sure it is because you are working hard or because you are producing excellent work. Your summer with the law firm is not the time to get an experimental haircut or try out the latest clothing fashions. If your firm requires business attire, wear a suit every day. If the attire is business casual, make sure you know what that term means and live by the rules. If you are dressed in a more casual fashion than some of the attorneys around you, you are making a mistake. Law school provides you with three years during which you can wear jeans and sneakers every day. Dust off the nice suits and conservative ties/blouses for the summer job. Make Your Superiors Notice You: If you are trying to make an impression on a senior partner with whom you have not had the chance to work, make casual interactions work for you. Make an effort to arrive at the office earlier than that partner or consistently leave later than that partner. Attorneys definitely notice who is working when they arrive
and whose office is dark every night when they leave. Also, if you hear of an important case going on, contact the assigning partner and see if you can help out. Offer to come in over the weekend or stay late at night to assist. Whether the offer is accepted or not, you have likely made a good impression.
Learn As Much As You Possibly Can: Much of the above advice is focused on how you can impress your superiors. But take some time to make sure you want to work at that firm – the cultural fit is
The time is long overdue for serious court reform in New York. Our outmoded court structure is almost 50 years old and New Yorkers can no longer afford the inefficiencies it produces.
As any New York litigator can tell you, the New York court system is highly fragmented and unwieldy. There are 11 separate trial courts with different jurisdictions, rules, processes, and systems. The structure is cumbersome to administer and, for attorneys and litigants (especially the unrepresented), it can be a nightmare to navigate. For example, a family in crisis that needs to adjudicate matrimonial, custody, and domestic violence matters may need to obtain relief by going back and forth between three separate courts, the Supreme Court, Family Court, and a criminal court. Similarly, injured plaintiffs must litigate simultaneously in the Supreme Court and the Court of Claims whenever both the state and a non-state actor are named parties in a personal injury, medical
malpractice, or commercial dispute.
This complex structure also imposes substantial and unnecessary costs on court users and taxpayers, a problem that worsens as the number and complexity of cases grow.1 A 2007 study commissioned by former Chief Judge Judith S. Kaye found that consolidating our courts would save approximately $500 million annually by reducing costs for businesses and individuals who use the courts and by reducing budget expenditures for the state.
Because of these problems, advocates have increasingly been calling for reform. In 1998, the New York State Bar Association (NYSBA) passed a resolution recommending that the multiple trial courts be consolidated into a twotiered system. Because the current court structure is provided for in the state constitution, the NYSBA resolution also included a recommendation for a constitutional amendment that would permit the Chief Judge and the Office of Court Administration to establish necessary court divisions, plus rec-
Brett Ward is the co-chair of NYCLA’s Young Lawyers’ Section and Partner at Blank Rome LLP.
Young Lawyers’ Section Events
Tuesday, March 6 In Practice 12:30-1:30 p.m. Manhattan D.A.’s Office
Thursday, March 8
Public Forum: Getting on the Catwalk: Careers for Lawyers in Fashion Law 7 p.m. NYCLA Home of Law
Monday, March 19
Public Forum: The Lawyer Who Isn’t a Lawyer: Alternate Careers for Attorneys Time 6:30 p.m
Court Simplification in New York
By Stephen P. Younger
important. Moving laterally, especially in your first few years out of law school, is a difficult thing to do. Further, it is something you will have to explain every time somebody reviews your resume. Work is likely going to be a major part of your life for many, many years to come. If you like the people with whom you work, that is a benefit upon which you cannot put a price.
ommendations addressing how to fill judicial positions in the new structure and other related issues.
The 2007 study commissioned by Chief Judge Kaye echoed these recommendations. In November 2011, NYSBA’s Executive Committee re-affirmed these recommendations to simplify our state’s court structure and made this issue one of its top legislative priorities. To that end, NYSBA is working this year with the Fund for Modern Courts and other stakeholders to convene a broad coalition of business, legal, civic, good-government, and other groups who favor such reform, to build consensus and press for change. As more groups join the effort, the coalition will seek to introduce the constitutional amendment necessary for this reform and try to achieve first passage in the 2012 legislative session and second passage in the 2013 session,2 so that the amendment can be presented to voters in November 2013. The coalition is currently encouraging other bar associations, including the
Brooklyn Law School Confirmed Panelists: Danielle Eckelt, Senior Regional Director, Kaplan PMBR; Ann Gittleman Wallier, Director, Kinetic Partners; Susan Moon, Columnist, Above the Law, Vice President, Wyndham Worldwide; Neil Squillante, President, PeerViews Inc.; Josh Warrum, Co-Founder and COO, ADstruc, Inc.
Tuesday, March 20
Section Meeting: State of the Legal Job Market 6:30 pm Blank Rome Speakers: Jill Back, Brooklyn Law School; Andrew Gurman, Michael Lord & Co; Elizabeth Halpern, Blank Rome LLP.
New York County Lawyers’Association, to join the chorus of voices calling for reform.
Source: Special Commission on the Future of the New York State Courts, A Court System for the Future (2007) at 109.
Mr. Younger is a partner in Patterson Belknap Webb & Tyler LLP and is immediate past president of the New York State Bar Association. Noah Stein of Patterson Belknap assisted in the preparation of this article. FOOTNOTES
1. The caseload of the courts has quadrupled in the last 50 years, from about one million new filings annually to more than four million. The complexity of these cases also has increased, for example, due to heightened standards for judicial oversight in child permanency cases and mandatory conferences in foreclosure cases. 2. New York requires that proposed constitutional amendments be passed by two consecutive sessions of the state’s legislature.
March 2012 / The New York County Lawyer 15
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Online Secondary Liability Issues in SOPA By Eric Adler SOPA bucks the trend of condescending legislative backronyms. With the original “E-PARASITE” epithet mercifully abandoned, the “short title” succinctly reflects the bill’s intended purpose: Stop Online Piracy Act. But, legislative analysis often requires reading beyond the Short Title. For your amusement, I attempt to parse the 78 page bill. International Rogues. Websites dedicated to the theft of US property are a real problem. Proponents of the bill call them “International Rogue Websites.” To combat these rogues, SOPA proposes two powerful new tools; one for the government (§ 102), and one for private actors (§ 103). Since they share a similar structure, journalists and commentators tend to conflate the two sections. Private Actors and Deputized Intermediaries. Under § 103(a), the rogues are defined as websites primarily
Ask for a Raise (Continued from page 1)
2. Provide business reasons to justify a raise. Providing your employer business reasons, rather than personal reasons, for giving you a raise makes it easier for him to justify a salary increase. Examples of business reasons include: “I consistently outperform my higher-paid peers,” or “I’ve saved the company X amount of dollars by implementing the XYZ program.” Personal reasons include: “I don’t
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designed to “enable or facilitate” copyright infringement or websites that “avoid confirming a high probability” of infringement. § 103(a)(1)(B)(i-ii). If a holder of an IP right (not necessarily the owner) believes it is harmed by a “rogue” website, this private actor sends a takedown notice to the website’s payment processor and advertisers. § 103(b)(4). In response, the notified service providers must shun the rogue “as expeditiously as possible, but in any case within 5 days,” 103(b)(1-2). SOPA promises complete immunity to deputized intermediaries taking such expeditious action. § 104.
loose access to service providers upon allegations rather than judicial determinations. Copyright infringement demands nuanced fair use considerations. Private Copyright owners are unlikely to reflect impartially on fair use (especially parody) before firing off a § 103(4) notification. Service providers have no incentive to raise the issue.
For these purposes, rogue websites are defined to including websites that merely “facilitate” the commission of criminal IP infringement. § 102(a). This is a slippery definition, especially where the Constitution demands narrow tailoring.
In addition to the due process concerns of § 103, § 102 raises certain technological and censorship concerns.
Giving the government the power to meddle with the structure of the Internet has geeks up in arms. They shut down Wikipedia for a day, and blacked out the Google logo in protest. It seems this was effective. While the Internet geeks took to the streets protesting in front of Senator Schumer’s office, old media baron Rupert Murdoch tweeted: “@rupertmurdoch Seems blogosphere has succeeded in terrorizing many senators and congressmen who previously committed. Politicians all the same.”
Blunderbuss. Under SOPA, websites
New Government Powers. Under § 102, the attorney general may move, in rem, for a TRO ordering Internet service providers and search engines to deny access to rogue websites.
Eric Adler practices patent and technology law at Adler Vermillion & Skocilich, LLP. He is a member of EMIPS and Cyberlaw committee and tweets from @teachingaway.
make enough money to pay my mortgage” or “My husband was just laid off from his job.”
you need to accomplish to merit a pay increase. Do you need to work more hours or assume additional responsibilities?
be found online at www.about.com. All rights reserved.
3. Do not base your appeal on emotion.
Look beyond money at your total compensation package. If your employer is not in a financial position to offer more money, he may be able to offer other monetary benefits such as paid parking, extra vacation time, a project-based bonus, enhanced work benefits or company perks such as box seats.
The alleged rogue may file a counternotice proclaiming its innocence. § 103(b)(5). In response, to such a counternotice, the deputies are allowed, but not required, to restore services to the website. There is no corresponding immunity for deputies that restore service.
Although salary is a highly personal issue, approach the discussion as a business negotiation. Keep your tone professional and refrain from allowing your emotions to influence your discussion.
These concerns raise the specter of prior restraint, and led Prof. Larry Tribe to recently conclude SOPA “is a blunderbuss rather than a properly limited response, and its stiff penalties would significantly endanger legitimate websites and services.”
4. Develop a back-up plan. What if your boss does not grant your request for a raise? Ask what specific goals
M E D I U M
I S
(c) 2012 Sally Kane (http://legalcareers.about.com/). Used with permission of About Inc., which can
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Sally is an attorney, editor and writer specializing in legal, career and business topics. She has published hundreds of career-related articles in print and webbased media and serves as editor-in-chief of Paralegal Today, an international magazine covering the paralegal profession, and editor for Litigation Support Today, an international magazine serving the litigation support profession. Her latest project is a legal careers book to be published by Delmar, Cengage Learning. You can follow her on Twitter at sallyannekane.
M E S S A G E MARSHALL MCLUHAN
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16 March 2012 / The New York County Lawyer
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