Nathaniel Marmur writes: When Associate Judge Robert S. Smith of the New York Court of Appeals retires at the end of 2014, the court will lose a truly independent voice. This article explores how Smith sought to re-imagine New York's sometimes arcane approach to hearsay.
Daniel Wise writes: Five years after New York enacted legislation requiring "good faith" negotiations to help homeowners facing foreclosure, there is mounting evidence that lenders have hobbled the effort through intransigence and incompetence. A recent case presented an appellate court with an opportunity to rule on a remedy toward which many trial judges have been gravitating.
Faiza Patel and Anthony Ford write: The integrity of our adversarial legal system requires that defendants be able to consult with their lawyers in private, and experience shows that it is possible to devise ways of protecting these communications without jeopardizing legitimate government interests.
For the past 20 years, New Yorkers have heard only one note about criminal justice, the city is safer than ever. Nothing was said and no questions were raised about who was arrested, for what, or what happened to them after arrest. Recent revelations, however, sound cause for alarm.
Richard Lee Price and David J. Kirschner write: In addition to alleviating an overextended court system, judicial interns acquire an outstanding skill set and gain insight into the judiciary. And now, their service also satisfies New York's 50-hour pro bono service requirement for candidates seeking bar admission.
Roberta A. Kaplan writes: Because the threat of enforcement actions can have a chilling effect on start-ups and their users, state and local government officials in New York and elsewhere should encourage the growth of the sharing economy, as other governments already have.
David B. Saxe writes that a somewhat murky and obtuse rule of practice in the First Department provides that: "When a cause is argued or submitted to the court with four justices present, it shall, whenever necessary, be deemed submitted also to any other duly qualified justice of the court, unless objection is noted at the time of argument or submission." What is required of the court when an attorney notes an objection as contemplated by this rule?
Judith Kaye, after a recent visit to Mohonk Mountain House, writes: What a pleasure it was to discover that so many of our current significant dispute resolution initiatives trace their origins to Mohonk—the American Society of International Law and the Hague Conference movement, to name just two.
To practice in the New York "no-fault world," you must have the following attributes: patience, determination, perseverance, a sense of humor and thick skin. In this area of the law, common sense is neither necessary nor even recommended. There is a plethora of pressing and practical issues that need to be addressed in order to prevent the no-fault world from imploding.
Rubaya Yeahia, a Stuyvesant High School senior who won an annual essay contest sponsored by the Association of Supreme Court Justices, writes: As nations around the world struggle for democratic rights against oppressive governments, citizens of the United States seem to grow increasingly skeptical of their roles in a democratic society.
Judith S. Kaye, counsel to Skadden Arps and the former Chief Judge of New York, writes: There are so many 2014 anniversaries—for starters, the 60th anniversary of Brown v. Board of Education and the 50th of the Civil Rights Act, reaffirming that it remains for us, each in our own way, to persist in reinvigorating the message that the spirit of liberty, genuine equal opportunity for all, lies in our hearts and in our hands.
Otto G. Obermaier, former U.S. Attorney for the Southern District of New York, writes: On Sept. 26 there will have been a U.S. Attorney for the district currently designated as the Southern District of New York for 225 years. For it was on Sept. 25, 1789 that President George Washington sent to the Senate the nominations of a judge, a marshal and an attorney for what was then referred to as the districts of New York and New Jersey.
Social commentators of all stripes generally agree: there is no God in the public square, nor is there every likely to be any time soon. The only limit is law itself—statutes, cases and court decisions, now the predominant arbiter of "right" and "wrong" and only shared system of general ethics in the square, which consigns conventional moral values to an ever-swelling bin of relative choice.
The New York Court of Appeals has issued a landmark decision on coercive interrogation tactics in People v. Adrian Thomas. It overturns what is most likely a wrongful conviction based entirely on the coerced confession of a young father accused of murdering his 4-month-old son.
Richard Blum and Hollis Pfitsch of The Legal Aid Society write: After more than three years of litigation, delivery workers for four Domino's pizza restaurants in Manhattan are receiving payments for unpaid wages. The case involves a rare situation: while the original lawsuit was against a franchise and individual franchise owners, the international corporation was successfully added to the lawsuit in a motion to amend seeking liability of Domino's as a joint employer.
Raun J. Rasmussen, executive director of Legal Services NYC, writes: Fifty years after Attorney General Robert Kennedy challenged the legal community in the War on Poverty, one thing is unassailable: civil legal services have become an essential part of the fight for equal justice and against poverty.
Justice David B. Saxe of the Appellate Division, First Department, writes: It is natural for trial court judges to aspire to the appellate court, which is a promotion, with greater pay, prestige, freedom and autonomy. But satisfying your ambitions can bring you to a position where the work fails to give you the same satisfaction as your former position did.
Southern District Judge Shira Scheindlin, accepting the Fuld Award from the NYSBA's Commercial and Federal Litigation section on Jan. 29, spoke on how much the world has changed since Judge Stanley Fuld sat on the New York Court of Appeals, and the biggest intervening change, the advent of the era of digital technology.
Acting Supreme Court Justice Richard B. Meyer writes: Consolidating the nine trial level courts that comprise the most confusing and, in some respects, outdated, judicial system in our nation into a two-tier trial court structure has been analyzed, studied and on the table for years. It is ready to go. So why has it not been implemented and why is no one talking about it now, at a time when our state government faces daunting long-term fiscal problems?
Daniel Kornstein, a partner at Kornstein Veisz Wexler & Pollard, writes: Is it possible for a lawyer also to be a superhero? There is one superhero whose secret identity is, of all things, an attorney. Daredevil is his name, and trial law is his game.
David Lenefsky, an attorney in New York, writes: There seems however to be a recent change in both board willingness to grant parole and the willingness of the courts to scrutinize board decisions and order a new parole hearing.
Daniel J. Kornstein is a partner in Kornstein Veisz Wexler & Pollard. "It is terribly unfair to the child who should be in a G&T program but is excluded because of it," he argues, "because another child, who had scored lower on the qualifying test, was accepted due to the other child having a sibling already in that program."
Joel Cohen is an attorney at Stroock & Stroock & Lavan and a Law Journal columnist. He writes: "Could there not be an ombudsman, or perhaps a standing committee of judges in place in the courthouse, to respond on behalf of a judge who is largely defenseless in the face of sometimes irresponsible attacks…?"
Lorca Morello, a staff attorney in The Legal Aid Society's Criminal Appeals Bureau, recommends the English and Welsh PEACE, rather than the Inbau & Reid-type method of
conducting police interrogations of suspects.
Robert P. Knapp III, a partner at Mulholland & Knapp, and Leah Heifetz, an associate at Kessler Topaz Meltzer & Check, write: While 'Windsor' fell short of establishing a constitutional right to same-sex marriage, no law that discriminates against sister-state same-sex marriages can withstand 'Windsor's' equal-protection scrutiny. Section 2 of DOMA will therefore fall with section 3, and New York same-sex marriages will be entitled to Full Faith and Credit nationwide.
Although "lean" has a less favorable connotation in the academic world than in practice, a new report indicating that law schools across the country but especially in New York are in "belt-tightening mode" is actually good news for the profession.
David B. Saxe and Judith J. Gische, associate justices of the Appellate Division, First Department, write "It is useful for lawyers to know whether and to what extent oral argument plays a role in a particular judge’s decision-making process. This information can emerge from the sort of judicial participation in CLE that we are encouraging."
Rolando T. Acosta, an associate justice on the Appellate Division, First Department, discusses the benefits Proposition 6, the amendment to the State Constitution on judicial retirement ages, would have on the bench and bar, and the people they serve, of New York state.
William J. Dean, a lawyer and former executive director of Volunteers of Legal Service, writes: On reading the manuscript of my collection of essays, many of them having first appeared in the New York Law Journal, a literary agent writes me, "I was fascinated. Manuscript reads well. I think they add up to a book."
David B. Saxe, an associate justice at the Appellate Division, First Department, proposes a rule for the preparation of that court's written work to ensure the timely disposition of appeals and disciplinary matters.
Steven Zeidman, a professor at the City University of New York Law School, writes: Somehow missing in the stop-and-frisk conflagration is the one institutional entity that is specifically charged with monitoring the police and addressing the constitutionality of police behavior on a daily basis - the New York City Criminal Court.
New York's new rule requiring 50 hours of pro bono service prior to admission to the bar threatens to displace small firm and solo practitioners out of even more areas previously handled by lawyers, albeit for smaller fees.
Robert Anello, a partner at Morvillo, Abramowitz, Grand, Iason & Anello and president of the Federal Bar Council, writes: The shadow the sequester has already cast on the nation's federal courts and the criminal and civil justice systems are of grave concern to those familiar with the important function courts play in administering this nation's laws. As the sequester persists, the pernicious effects will only worsen.
Cadwalader, Wickersham & Taft partner Dorothy R. Auth writes: The Supreme Court's recent holding sent shock waves throughout the biotech IP community not only because the court invalidated a class of commonly issued patent claims, but also because it established a bright-line distinction between naturally and non-naturally occurring compounds. However, a calmer reading of 'Myriad' reveals that its reach may be more limited than first reported.
David B. Saxe, an associate justice at the Appellate Division, First Department, writes: There have been times when the First Department has had serious problems with excessive delays in the issuance of decisions, caused by justices who failed, for months, to complete their assigned writing of an opinion or dissent. It may be a good time for the court to take affirmative steps to prevent the problem from recurring.
Katharine H. Parker and Daniel L. Saperstein of Proskauer Rose write: On its face, New York's new law is a well-intentioned effort to address the problem of long-term unemployment. But given that any business, even in times of plenty, turns away far more applicants than it can hire, the prospect of frequent and frivolous litigation from this ill-conceived and overbroad law looms large.
In a speech given after receiving the Federal Bar Council's Learned Hand Award on Law Day, Second Circuit Judge Barrington D. Parker Jr. said: In thinking about cases such as 'Loving v. Virginia' and 'Hurd v. Hodges,' I asked myself what would this country look like if any of them had been lost. Who knows? The point is, they were not lost. Trial lawyers saw to that and, as a consequence, the nation before our very eyes became more decent and more just.
In a January speech delivered on receipt of the Kay C. Murray Award, former Appellate Division, Second Department Justice Sondra Miller said: If I have been in any way a trailblazer my role has been fortuitous, I have been consistently in the right place at the right time.
Keith Gutstein and Ellen Storch, partners at Kaufman Dolowich Voluck & Gonzo, write: The new law is well-intentioned to help those who have long suffered in this economy. However, its effects, as likely as they are unintended, will be to deter employers from hiring those very people who are most in need of work.
David B. Saxe, an associate justice of the Appellate Division, First Department, writes: I suggested that at the First Department we should ask ourselves whether adopting changes to our treatment of complex commercial cases could legitimately improve the overall value and effectiveness of our court system in the eyes of the business community. The question is not whether we are currently handling our complex commercial cases adequately. It is whether we could implement a system under which they would be handled optimally.
Richard J. Schager Jr., a partner at Stamell & Schager, writes: The concept that a nominee to the Court of Appeals should be a "representative" of an ethnic or social group, however antithetical to the New York Constitution and the Judiciary Law, is the direct result of the politicization of the judicial selection process by the rules of the Commission on Judicial Nomination.
David B. Saxe, an associate justice on the Appellate Division, First Department, shares personal insights learned from his 15 years on that bench on how to field unfriendly questions, handle precedent that is against your position, begin your argument, and more.
Leonard B. Austin, an associate justice of the Appellate Division, Second Department, writes: I read with interest the article by Justice David Saxe of the First Department. Were it a decision, I would respectfully concur in part and dissent in part. Where we agree is that there is a need to improve the understanding of complex commercial issues which confront us, but the creation of a specialized panel would beget entreaties for appellate panels focusing on medical malpractice, negligence and criminal issues, etc. No, thank you!
Judith S. Kaye, counsel to Skadden, Arps, Slate, Meagher & Flom and the former chief judge of the State of New York, writes: What a pleasure, and point of pride, it has been to encounter the choice of New York law in far-flung transactions, a recognition of the soundness and stability of New York case law.
Southern District Judge Jed S. Rakoff, in accepting the Stanley J. Fuld Award from the Commercial and Federal Litigation Section of the New York State Bar on Jan. 23, spoke of a recent trip to Baghdad to help train 15 Iraqi judges on the role of the judiciary in adjudicating international credit disputes, and the heroism shown by the judges who continue to do good work despite violence.
David B. Saxe, an associate justice on the Appellate Division, First Department, writes to support the formation of a Commercial Division appellate bench, discussing how interested judges might undergo extra CLE - or CBE, "continuing business education," streamlining of the appeals process, and specialized benches for other categories of appeals.
Joseph D. Becker, a partner at Becker, Glynn, Muffly, Chassin & Hosinski, writes: In my Utopia, the gun laws will be simple: no guns at all except (a) ordinary rifles for hunters of game and (b) usual weapons of the military, the police, and specially authorized persons. Period. What stands in the way of that as law in the United States? An array: the gun manufacturers, their trade associations, gun aficionados, reluctant congressmen, the Second Amendment, and, finally, the Supreme Court decision in District of Columbia v. Heller.
Loretta Lynch, U.S. Attorney for the Eastern District of New York, writes: There are those who say that public service requires great sacrifices, and it does. But when I compare the sacrifices of salary and time to those my family has made over the generations, all so that the next generation could have a better life, those pale by comparison.
Vincent Schiraldi, commissioner of the New York City Probation Department, writes: For too many people obtaining a Certificate of Relief from Disabilities can prove to be an insurmountable roadblock. This is tragically ironic given the fact that CORs were originally intended to ease the barriers preventing people from transcending their criminal histories.
Cyrus R. Vance Jr., New York County District Attorney and president of the District Attorneys Association of the State of New York, writes: While the federal government has reacted to business crimes with new policies, laws, and regulations designed to combat ever-changing scams that are limited only by human ingenuity, the near-silence from New York has been striking. Our state, the financial capital of the nation, has done little to adapt its laws to the modern problems white-collar crime presents.
August is a major vacation-travel month for many of us in the profession. Thoreau reverenced the title of traveller. "His profession is the best symbol of our life. Going from ______ to ______; it is the history of every one of us." But when it came to less abstract, more concrete journeys, he rarely stirred from Concord and its environs; indeed, he scorned foreign travel. "It is not worthwhile to go around the world to count the cats in Zanzibar."
Cyrus R. Vance Jr., the New York County District Attorney, writes: In many cases in Manhattan and all over our state, witnesses are frightened, asked to lie, or asked to tailor their accounts so as to minimize their impact on the defendant at trial, and that is only for those who come forward at all. These problems provide a crucial backdrop to the current debate over expanding criminal discovery.
Tom Ude, a senior attorney at Lambda Legal, and Hayley Gorenberg, the organization's deputy legal director, write that no one should underestimate the significance of excluding public school students from the Human Rights Law, whose protections now safeguard only about 68,000 students statewide.
Samuel Estreicher, Dwight D. Opperman Professor of Law and co-director of the Opperman Institute of Judicial Administration at New York University, writes: Respect for Congress, which after all is the principal policymaking branch in our system, requires confronting the issues voiced by the skeptical Justices when they arise, rather than judging this law against hypothetical statutes that are highly unlikely ever to be considered seriously let alone become law.
Courtney Fitzgibbons, Associate Director, Office of Career Services at New York Law School, writes that most job-seekers already know the value of bar associations and attending CLE programming, but you may not think to show off your Conviser, throw a post-bar party (or at least not the networking kind), and pick a theme song.
Judge Robert A. Katzmann. on the occasion of being honored with the Federal Bar Council's Learned Hand Award, told his audience: "This evening I speak to you about what we, together, bench and bar, can do to help meet an urgent, pressing need - the need for adequate representation for a vulnerable population of human beings - immigrants. Immigrants often come to this country in fear, fleeing from persecution, escaping from poverty, not knowing the language, not knowing to whom to turn for competent legal advice, all the while working to make a better life."
Michael Barrett, a former deputy commissioner for criminal justice programs at the New York State Division of Criminal Justice Services, writes: The leaders of the bar should work to eliminate barriers to performing pro bono services, not relegate the responsibility to the most ill-equipped among us. Otherwise, I fear that serving the indigent will come to be viewed as little else but a burdensome condition precedent for entering the profession; a condition that, once met, will thereafter be seen as the responsibility of the next class of prospective attorneys instead of responsibility that should continuously be shared by us all.
Stephen Gillers, who teaches legal ethics at New York University School of Law, analyzes a recent New York State Bar ethics opinion that may leave some New York lawyers working at local offices of multinational law firms in exile.
Vincent N. Schiraldi, commissioner of the New York City Department of Probation, and Ronald E. Richter, commissioner of the New York City Administration for Children's Services, write: The initiative Governor Andrew M. Cuomo included in his 2012 budget proposal, which will authorize New York City to keep all but its most serious offending youth here in the city, will improve both public safety and outcomes for the city's young people who have run afoul of the law.
Bruce Barket and Steven B. Epstein, partners at Barket, Marion, Epstein & Kearon, write: Recent Court of Appeals rulings open the door for the defense to educate a jury on some of the flaws in eyewitness testimony. While important, these measures do not alter the landscape which permits the misidentifications in the first place.
Thomas M. O'Brien, an attorney with The Legal Aid Society, writes: The New York State Executive Budget bill contains a measure that would radically enlarge the reach of New York's forfeiture law and revamp its procedures. The measure was "inserted at the request of prosecutors," who feel the current system is "far too cumbersome." The "cumbersome" impediment to speedy forfeiture is otherwise known as "due process of law."
The public friendship dispute between Ron Perelman and Don Drapkin over $16 million dollars, in which a jury found for Drapkin after a trial in the Southern District of New York, reminds us that our legal system still is fundamentally ambivalent about whether friendship matters in the halls of our courtrooms.
Daniel J. Kornstein, a founding partner at Kornstein Veisz Wexler & Pollard, writes: Most of us in the law revere Oliver Wendell Holmes, and with good reason. Christopher Hitchens, the journalist and author who died recently, disagreed.
Robert C. Gottlieb and Valerie Gotlib of the Law Offices of Robert C. Gottlieb write: The bedrock constitutional principle of an individual's presumption of innocence is undermined not by political extremists but by our own government.
William J. Dean, a lawyer and the former executive director of Volunteers of Legal Service, writes: "I approach my first teaching day at the Fabindia School in Rajasthan, India, with all the nervousness of an entering first grader. I rise at 6 a.m. and breakfast on the terrace of the farm where I am staying, and appreciate the splendid view of the Aravalli Mountains towering above the desert landscape. The rising sun appears from behind a peak. A symphony of birds welcomes the new day."
Much could be written about Justice Martin Evans' impressive education, inspiring military service or exceptional career as an attorney and judge. However, we focus here on one aspect of Justice Evans' remarkable judicial service: his officially published decisions.