The work of the First Department includes many types of matters other than the disposition of appeals.
The work of the First Department includes many types of matters other than the disposition of appeals.
Our 2016 presidential election campaign, already filled with ugly insults and sordid character assassination, raises questions about democracy. For example, are democracies by their nature susceptible to demagogues? Is there a line past which negative campaigns should not cross? Should political candidates and their operatives be exempt from the ordinary rules governing defamation?
Stuart M. Saft writes: As we approach the fourth anniversary of the demise of Dewey & LeBoeuf, where I was a partner, I am reflecting on the lessons I learned from what happened after its collapse. My experience has made me realize that the profession must change how it deals with a bankrupt law firm in order to better protect the firm's clients.
In remarks to the New York Criminal Bar Association, Eastern District Judge Raymond Dearie said: Let's stop tinkering with this system of ours and collectively demand in the name of decency meaningful change, intelligent change. We need to get out and get under so to speak and rethink our practices, re-test the theories of the ancient past and, above all, jettison the madness of mass incarceration and the almost singular reliance on law enforcement as the principal means to address social ills that are beyond the reach of even the most dedicated law enforcement officials who serve us with justifiable pride and commitment.
We can and should provide parity to LGBT parents and others who cannot conceive without assistance by recognizing that parent-child relationships now often begin with assisted conception. The legal path to this goal, however, is far from simple. It must be laid through a minefield of potential unintended consequences, particularly for single parents.
Benjamin Vializ, winner of the 2016 High School Legal Essay contest sponsored by the Association of Justices of the Supreme Court of the State of New York and the New York Law Journal, writes: Making sure that teenagers know they have the right not to talk to the police and they have the right to have someone on their side helps make our constitutional rights a reality.
What I'd like to focus on in memory of my beloved mentor Judith S. Kaye is her personal commitment to the equal dignity of all persons under the law, including LGBT people. I feel qualified to do so because I was lucky enough to serve as Kaye's law clerk at a time when she was called upon to decide what may well be her most significant gay rights opinion in a case that would fundamentally alter the lives of gay people and their families—including, ultimately, my own.
In 1906, Roscoe Pound presented "The Causes of Popular Dissatisfaction with the Administration of Justice" to the ABA convention. The essay's insights and scholarship are as deep as it is timeless. More to the point, it puts into historical perspective the current popular dissatisfaction about the appropriate response by the president and the Senate to Justice Antonin Scalia's death.
The city bar has regularly sent representatives to observe military commissions to try non-citizens accused of international terrorism, being members of Al Qaeda or of harboring terrorists. We recently traveled to Guantánamo as observers and can summarize our report on the current status of these death penalty proceedings as: ongoing delay and proliferation of pretrial motions with no trial in sight.
It is widely recognized that most individuals (and certainly individuals in economic distress) cannot afford to hire private lawyers and do not have free legal services available to them. When a response to the summons requires preparing and serving a pleading, as it does in a foreclosure action, the unrepresented defendant will almost certainly default.
A sad, surprising turn of events is happening with the Jewish Conference on Material Claims Against Germany Inc. It is a relatively unknown situation that, precisely because it has elements of betrayal, deserves publicity and oversight and correction.
Since the 1960s, clinical education in law schools has provided real world experience to law students and legal representation to those least able to access it. In this tradition, the Cornell Law School Farmworker Legal Assistance Clinic opened its doors in August 2015 and urged re-examination of several local student practice rules and court practices to better reflect the New York bar's growing emphasis on experiential training and pro bono service as prerequisites to bar admission.
Too often in New York City, the maxim "justice delayed is justice denied" is no mere abstraction, but a reality that wears down defendants, dispirits victims and cheats taxpayers. This is particularly true in the city's criminal court, where lower-level cases—misdemeanors and petty offenses—are adjudicated and where the gaze of policymakers and the press rarely settles
Last November, The New York Times ran a series excoriating companies who force their customers and employees to waive their right to proceed in court and instead have their disputes decided in arbitration proceedings where the deck is stacked against them. The problem is, portions of the Times articles were written so broadly that they criticized arbitration in general, including what is commonly known as "business to business" arbitrations.
Defense attorneys should continue to argue that the People cannot prove beyond a reasonable doubt that a stationhouse confession is voluntary when they fail to provide a complete recording of the interrogation. We should not let the issue be diverted into whether the police have a tape recorder at the stationhouse or what their policies are, or their motives for not recording.
Research suggests that early intervention in animal cruelty cases could ultimately protect not only pets from abuse or death, but people as well. Unfortunately, our legal and social service systems—understandably preoccupied with human issues—may not give the gateway crime of animal cruelty the attention it deserves.
The entire SAFE Act deserves careful attention, but the recent decision by the Second Circuit in 'New York Pistol & Rifle Club v. Cuomo', upholding the assault weapons ban, provides an opportune moment to review and assess that important part of the law.
Southern District Judge Paul Engelmayer, speaking to the Securities and Litigation Enforcement Institute of the New York City Bar last week, said: Unlike virtually every country that is home to a securities exchange, the United States does not have a statute that defines insider trading. The U.S. Supreme Court and the Second Circuit have developed this body of law, ad hoc, case by case, essentially from scratch, effectively as a matter of federal common law.
Rembrandt was of course one of the greatest of the great painters in the western world. Genius, however, does not generate goodness. Rembrandt was, in fact, dishonest and viciously vindictive. As a consequence, he was often involved in highly contentious legal proceedings.
David B. Saxe writes: Some judges are "marrying" judges, that is, they enjoy performing weddings and being part of those often joyous celebratory events. I didn't, for the most part, fall into this group, although when I first became a Civil Court judge, I received calls from time to time from the administrative judge asking whether I would be able to perform a wedding. After saying no a few times, I thought it prudent to answer in the affirmative lest my future part assignments take an unpleasant turn.
At the beginning of each divorce case, I speak with the attorneys to find out what is truly in dispute. If they tell me that their clients are preparing to battle over their children, I speak directly to the parties to persuade them that, for the sake of their children, they must resolve their differences.
Rolando Acosta writes: On June 1, I and several colleagues participated in a program entitled "Meet the Justices of the Appellate Division, First Department." It was a rare opportunity for lawyers to explore the preferences and thoughts of appellate judges in a relatively informal setting. It may have been even more beneficial for the justices.
While traditional nonprofits will always play a critical role in serving the needs of vulnerable communities and still need pro bono support, social enterprises—a new class of for-profit corporate forms designed to accommodate a variety of missions beyond simply maximizing shareholder value—present unique pro bono opportunities that transactional attorneys are well-suited to provide.
To be sure, the government's position on insider trading as argued in 'United States v. Newman' aims to level the playing field for investors. However, it is exactly because the law aims for healthy markets that corporate insiders may reveal inside information when they do not personally benefit from doing so.
Katharine Parker, Daniel Saperstein and Kelly Anne Targett write: The New York City Council has glossed over existing laws regulating credit checks, overlooked court decisions, and plainly disregarded the serious concerns raised by business groups in opposition to a measure prohibiting most private employers from inquiring into or otherwise considering credit history in hiring and other employment decisions.
Many people died in the struggle to secure voting rights for all people in this country. 'Shelby County' has eviscerated the heart of the historic Voting Rights Act of 1965. On today's anniversary, Congress must act to enact a coverage formula and restore Section 5 of the Voting Rights Act.
On June 29, 2009, Bernard Madoff, who will go down as one of the most notorious Wall Street villains in history, was sentenced. He was 71 years old. U.S. Judge Denny Chin imposed a 150 year sentence. This article will address two points: 1) was that the maximum sentence? and 2) why would a federal court impose a sentence of 150 years upon a 71 year-old defendant?
The time is ripe to revisit the issue of cameras in the court in New York. The inner working of our justice system is a subject the public should have more access to and the advancement of technology and increased access to media mediums has given the public the means to be better informed.
The jury looks at the speaker, quizzically. Who is he? His voice is strange. How is he dressed? What's he talking about?
Our city deserves a bail system that not only ensures that defendants return for court appearances, but that does not punish people for their poverty, is not racially discriminatory, does not distort case outcomes and runs efficiently.
In a speech delivered to the Research Coordination Network on Understanding Guilty Pleas, Paul Shechtman said: We have armed prosecutors with tools that ensure that only the brave or fool-hardy go to trial. The "trial penalty" in this country has grown. No criminal law practitioner would tell you differently. All of this matters because trials (a good number of trials) are essential to the health of our criminal justice system.
In his speech accepting the Learned Hand Award from the Federal Bar Council, U.S. Supreme Court Justice Clarence Thomas said: Knowing that I could be wrong certainly promotes an earned sense of modesty. It insists that, with each passing year, I learn more and think more deeply about the unquestioned assumptions, the litany of citations, methodologies and theories.
Benjamin Pulatove, a sophomore from Townsend Harris High School in Queens, was honored Monday in the annual legal essay writing contest sponsored by the New York City Bar Association and the New York Law Journal.
Robert Tembeckjian writes that in declaring that narrowly tailored restrictions on judicial campaign activity further the state's "compelling interest" in protecting the integrity of the judiciary last week, the U.S. Supreme Court did what the New York State Court of Appeals had done 12 years ago, in much the same language.
In an excerpt from remarks upon his receipt of the inaugural Alberto Nisman for Courage Award from the Foundation for Defense of Democracies, Robert M. Morgenthau says: Nisman recognized Iran for the threat it is. And I certainly saw it the same way. I learned long ago to recognize the face of the enemy and its skill, and never to turn your back on it.
David B. Saxe offers advice for those in the infancy of their judicial careers.
Judy Harris Kluger and Amelia T.R. Starr write: Special Immigrant Juvenile Status is a valid and long-standing immigration remedy created to protect the most vulnerable members of society—undocumented, abused, abandoned and neglected immigrant children—and is uniquely dependent on state courts' expertise in child welfare matters.
Lawrence Hsieh writes: Politicians like to focus on numbers, as well as on the administrative cost of compliance, when they talk about overregulation. But of equal importance is the hidden cost of regulation, which manifests itself in the form of unintended consequences arising from misdirected incentives, and wholesale "de-risking" by regulated institutions to avoid the cost of compliance, which drives business to unregulated entities.
Whether secrecy was her intent, and whether her conduct was illegal, Hillary Clinton's actions contradict the principles of open government and transparency espoused by President Barack Obama, the Department of Justice under Attorney General Eric Holder and Clinton herself.
Kevin Kearon writes: The Court of Appeals stunning decision last month in 'People v. Diack' has significantly changed the landscape of the quintessentially incendiary Not In My Backyard issue.
Frank Taddeo Jr writes that the law—amoral, pragmatic, utilitarian law—is now the only shared means of discourse in ethical matters. The problem, so far as guidance is concerned, is that law and morals are distinctly different domains.
Southern District Judge Richard M. Berman writes: One relatively simple step attorneys can take to assist Family Court judges who are faced with significant growth in the number of Special Immigrant Juvenile Status applications is to submit to the court their own affidavit in support of the SIJS petition.
Thomas M. O'Brien writes: A bedrock requirement of a criminal case in New York has always been that the accuser must swear that his or her accusations are true. Section 100.30 of the Criminal Procedure Law lays out the exclusive methods of verification; all include signing and swearing. Nevertheless, a recent decision by a Queens Criminal Court judge would substitute a new procedure: verification by email.
Timothy G. Nelson writes: While the role of "moral damages," particularly in business cases, is still debated, the influence of 'Lusitania' is undeniable. As in so many other facets of legal life, a case that initially prompted controversy in one area (laws of naval warfare) has spawned jurisprudence in an entirely different sphere.
Jonathan Oberman writes: The two lawyers from the Bronx Defenders who appear in the unspeaking cameos in "Hands Up" may have made an ill-considered decision to involve their office in a video that, in the current environment, placed its good works at risk. But they are decent, caring, thoughtful people—hardworking lawyers motivated by concerns for social and racial justice and committed to achieving a world where access to due process does not depend on the color of one's skin or the color of one's uniform.
Eric Turkewitz writes: I've now been sued twice for defamation over postings I've made on my law blog. Despite both cases being utterly without merit, and both cases aggressively acting to discourage free and robust newsgathering and discussion, both plaintiffs were able to walk away while I was forced to spend enormous time on my defense including preparing documents, hiring counsel and wrestling with my insurer.
First Department Justice David B. Saxe writes: The standard procedure for perfecting and submitting appeals entails many long months of delay between the potentially life-altering decision of the trial court, and our review of that decision. By the time we issue our decision, often things have changed dramatically for the child.
Young Abraham Lincoln provides guidance about the modern tendency to override the orderly processes of law. His perspective is highlighted in an excellent book by Lincoln scholar Harold Holzer: "Lincoln and the Power of the Press: The War for Public Opinion."
Harvey Kleinman writes: For some people the big will always be good, and for others the small will be the good. I often feel that the mid-size firm provides, or can provide, the best of both worlds. The key is to find the firm that is compatible with the practice, the partners' lifestyles and allows, encourages and supports the partners to maintain their own identity and style of practice.
Frederick A.O. Schwarz Jr. writes: I have long felt that special prosecutors, while justified in exceptional cases, often lead to public policy error. All prosecutors are invested with enormous power, and in theory, all prosecutors face some kind of check on their power, either through election or appointment. But special prosecutors face no such check.
David Lenefsky writes: In essence, when a board denies parole to inmates with good records, it acts as an appellate sentencing court, a role neither intended nor appropriate.
Henry G. Miller writes: I do believe that we, as members of the bar, have a special responsibility to address and, as far as we can, change the attitudes that put the protection of wrongdoers before the safety of the public. If we the members of the bar unite to propose that concealment of a public danger in a confidentiality agreement is an unethical act, we might very well stop tragedies such as those caused by General Motors' faulty ignition switches.
Harvey Kleinman writes: Theft of funds is perhaps more easily accomplished at law firms, and there are a variety of techniques for so doing; and steps for avoiding or minimizing them.
As of Jan. 18, 2013, thanks to the addition of a rule by the Appellate Division, First Department, the Departmental Disciplinary Committee wields an additional tool for ensuring ethical practice in the First Department: Dismissal with Guidance.
Justice David B. Saxe writes: While the Appellate Division, First Department, has generally operated well over the years, certain adjustments may not only save time, money and effort, but also improve the quality and efficiency of our work.
Daniel J. Kornstein writes: As we age, we see things differently. Living adds nuance and texture to our perception and our understanding. This truth applies to books we read in our youth. Have you ever reread a book, especially a book that you liked a lot or made a great impact on you when you were in school? Rereading is an enlightening experience.
James R. Silkenat writes: When I became ABA president in San Francisco, I highlighted several areas where I thought the ABA could make a difference. One was access to justice. Too many people struggle to resolve urgent legal issues without a lawyer to provide qualified advice. At the same time, too many excellent young lawyers are finding it difficult to gain practical experience and employment.
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.
Women lawyers might have a new role model. A revived Marvel comic book series heralds the re-appearance of this legal superstar.
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.
Daivd B. Saxe, an associate justice of the Appellate Division, First Department, reflects upon important qualities that a good appellate judge should possess.
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."
Judge Chester J. Straub writes to encourage opportunities, and support for, young lawyers to seek meaningful civic and political involvement.
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.
When investigating a case, Tom Puccio would ask witnesses amateurish questions in unabashed Brooklyn tones, suggesting he knew little about the facts. It was pure pretense, gamesmanship.
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.
Michael A. Cardozo, the Corporation Counsel for the City of New York, received the Federal Bar Council's Emory Buckner Award on Nov. 23 at the Waldorf Astoria in New York City and addressed the group, pointing to some troubling developments, particularly the lack of opportunity for junior lawyers to gain hands-on litigation training and responsibility, and, perhaps as a consequence, the increased numbers of unsatisfied and unhappy lawyers.
David B. Saxe, an associate justice at the Appellate Division, First Department, writes that if matrimonial lawyers focus on the larger picture, they might recognize they stand to gain more in the long run from the good will and recommendations of satisfied clients following successful mediation, than from the backlash of dissatisfaction in the wake of a typical unpleasant divorce.
Kenneth L. Gartner, a member of Lynn, Gartner, Dunne & Covello, writes that 45 state supreme courts have made graduation from an ABA-accredited law school a prerequisite for admission to the bar, while only five states continue to act independently to some degree.
Linda Gibbs, New York City's deputy mayor for health and human services, and Vincent Schiraldi, the city's commissioner of probation, write: Recently, Mayor Michael R. Bloomberg announced the Young Men's Initiative, a three-year, $127 million citywide effort to help young black and Latino men further their education, get better jobs, become better fathers and leave the criminal justice system behind for good.
Greg Berman and Michael Rempel, respectively, executive director and research director of the Center for Court Innovation, write: A new study shows that drug courts succeed in reducing crime and drug use. We now know drug courts work, but why do they work? What is the secret ingredient? It turns out that the most important factor is the judge. When participants believe that the judge treats them fairly, they do better.
Mitra Hormozi, who was most recently chair of the New York State Public Integrity Commission and has served as deputy chief of staff in the New York Attorney General's Office and as an assistant U.S. attorney in the Eastern District, writes: While some jurisdictions permit a prosecutor to go forward when he or she is not convinced of the guilt of a defendant (so long as there is probable cause to support the case), that has not been the standard relied on by New York City's state and federal prosecutors. Nor should it be.
Peter L. Zimroth, a partner at Arnold & Porter who is part of a pro bono effort to challenge a newly enacted zoning law in Bridgewater, N.J., designed to block the development of a proposed mosque, spoke recently on the case and why he chose to undertake it, his faith in the ideals of American democracy and the gap between those ideals and the evident injustice that was being done.
Mark Noferi, an instructor of legal writing at Brooklyn Law School, writes that the U.S. Supreme Court's reasoning in a recent opinion may support appointed counsel for different indigents—the hundreds of thousands of immigrants detained yearly pending deportation proceedings, many from the New York area.
Leslie Kelmachter, a partner at The Jacob D. Fuchsberg Law Firm and president of the New York State Trial Lawyers Association, writes: The implosion of the housing bubble and resulting Great Recession, BP's disaster in the Gulf, and Toyota's delinquent response to Camry brake failures, have all served as powerful reminders of the danger of relying on businesses to respect anything that lies beyond their own interests. Americans depend on the judicial system to protect individuals and society as a whole from the consequences of corporate greed, but decisions from the just-completed Supreme Court term suggest that reliance may be misplaced.
David Rudenstine, the Sheldon E. Solow Professor of Law at Benjamin N. Cardozo School of Law, writes: In the Pentagon Papers frenetic litigation, U.S. District Judge Murray I. Gurfein soundly balanced a respect for the executive branch's responsibilities in national security cases with his responsibility to uphold the rule of law, striking a balance that remains highly relevant today.
For the past quarter century, William J. Dean, who will step-down as executive director of Volunteers of Legal Service later this month, says he has had the good fortune to work on legal matters which he deems to be of the highest importance; to work with lawyers who strive to fulfill the Biblical injunction in Deuteronomy, "Justice, justice shall ye pursue all the days of your life." The work has been life-transforming: For the clients and for their pro bono lawyers. And for himself.
Alan S. Lewis, a partner at Carter Ledyard & Milburn, and Jonathan M. Kirshbaum, senior appellate counsel at the Center for Appellate Litigation, write: Arguing that habeas in its current form is "broken," two law school professors have been engaged in a full court press, including an opinion piece in The New York Times, to advocate that Congress repeal the writ for everyone except those sentenced to death and those few who can make a gateway showing of actual innocence. But there is nothing broken about the concept of federal habeas review of state court convictions.
John M. Leventhal, an associate justice of the Appellate Division, Second Department, said in his keynote address at the Law Day commemoration of the Supreme Court, Kings County: Adams recognized early on the importance of the role of courts in society and the importance of courts as the last protector of individual rights against the abuses and excesses of government. I am proud to be able to report that our courts remain the protector of an individual's rights and a balance against unjust laws. We address wrongful convictions and provide due process to civil and criminal litigants alike.
Stephen P. Younger, president of the New York State Bar Association and a partner at Patterson Belknap Webb & Tyler, writes: In response to the challenges of new technology, increased competition and the recession, last year I created the Task Force on the Future of the Legal Profession to evaluate our changing legal environment; identify the risks and opportunities presented; and seek a course that comports with our professional responsibilities to our clients; and promotes our personal well-being.
William J. Dean, executive director of Volunteers of Legal Service, discusses his work as an almoner, giving modest grants to low income families and individuals to cover funeral expenses, prevent evictions, and relieve other crisis situations.
Rory Lancman, a member of both the New York State Assembly Codes and Judiciary Committees and appellate counsel to Morelli Ratner PC, writes: In last month's highly anticipated decision, the Court of Appeals made Douglas Warney's case one about pleadings, not confessions. In so doing, the Court clung to the discredited notion that innocent people confess to crimes without being coerced, and missed a perfect opportunity to both educate the justice system and remove an unreasonable and illogical barrier to compensation for those forced to endure the nightmare of being imprisoned for a crime they didn't commit.
With the April 1, 2011, vote on initiative 131 looming on the horizon, it is perhaps a propitious time to address the aspects of the tort reform legislation proposed by this initiative, which relate primarily to a fund for impaired newborns and caps on pain and suffering.
Alexis DeTocqueville's magnus opus in the late 1830s, "Democracy in America," famously remarked that all political questions somehow find their way into the American judicial legal system. He considered that unique characteristic quite remarkable, and his chapters on our judicial review phenomenon pinpointed that aspect of our tripartite branches experiment in governance, contrasted to European systems. Yet, throughout our judicial history, a counter-theme also emerged that disfavored political questions being allowed into the courts.
James C. Goodale, former vice chairman and general counsel of The New York Times, writes: The DOJ has for many months been investigating Julian Assange, the editor of the whistleblower website Wikileaks, and has set up a grand jury in Virginia to indict him under the Espionage Act. The problem for the Justice Department is that the Espionage Act seemingly does not cover Assange's acts. It has never been used to criminalize publication of classified information.
Jonathan Macey, a professor of law at Yale Law School, argues that Governor Andrew Cuomo's cure for the separation anxiety he is suffering in the wake of his departure as attorney general is to usurp for himself much of the power exercised by the attorney general's office.
William J. Dean, executive director of Volunteers of Legal Service, writes: Never before have I had an impact on the lives of so many people, for by the simple act of fainting, I bring the downtown East Side subway system to a standstill.
Jamie Fellner, senior counsel of the US Program at Human Rights Watch, writes that 1970 reforms gave judges a range of bail options that would be easier for low income defendants. Unfortunately, our research into New York City bail for nonfelony defendants indicates that judges invariably set bail in the most financially onerous forms - cash or secured bonds. They also set bail at a level the defendants cannot afford.
Judith S. Kaye, former chief judge of the State of New York and counsel to Skadden, Arps, Slate, Meagher and Flom, writes: Many times in this Law Journal space I have found delightful reading in the form of engaging reviews, as well as books they led me to. So I share a trio of my own current late-night readings, the only connection being that all three books arrived in my life simultaneously as gifts from lawyer-friends.
George A. Davidson, a partner at Hughes, Hubbard & Reed, writes that at a time when clients are acutely focused on the cost of dispute resolution, counsel should think long and hard as to whether the deposition is likely to justify its costs.
William J. Dean, executive director of Volunteers of Legal Service, writes: Roland Huntford, in "Nansen, The Explorer as Hero," cites an apocryphal Russian saying: "A man consists of a body, a soul and a passport." Over 1 millions Russians, stateless as a result of the Russian Revolution and ensuring civil war, possessed the first two, but not the third. Nansen set out to remedy this. Contrary to Nabokov's negative comments, Nansen was successful in these efforts.
Vincent Schiraldi, commissioner of New York City's Department of Probation, and John Mattingly, commissioner of the Administration for Children's Services, write that Governor Paterson and Commissioner Carrion should be credited with having the courage to close troubled facilities that were harming children and negatively affecting public safety. But the job is only half done.
Thomas M. O'Brien of The Legal Aid Society writes that in the Criminal Court of the City of New York, which handles misdemeanor cases, the average length of time from arraignment until trial is some 380 days. Uniquely among lawyers of all specialties and jurisdictions, New York City misdemeanor prosecutors declare themselves to be "ready for trial" at the first appearance, the arraignment.
Daniel J. Kornstein of Kornstein Veisz Wexler & Pollard writes that in recent years, American writers and publishers have increasingly found themselves named as defendants in libel suits in countries lacking our First Amendment protections. But that would change under proposed legislation in the U.S. Senate sponsored by Se. Pat Leahy, D-VT.
Jed S. Rakoff, a judge in the Southern District of New York, remarked at the 2010 presentation of the New York City Bar's Henry L. Stimson Medals to Outstanding Assistant U.S. Attorneys: It takes honesty and courage to follow where, and only where, the evidence leads, regardless of public opinion, personal beliefs, sheer exhaustion or anything else but the pursuit of the truth. And never was this need for total honesty more essential than today, when the power of every AUSA is perhaps greater than it has ever been in history.
Some lawyers retire at age 62, 65 or 70. Others choose a "Downtown death," where your secretary hears a thud, enters your office and finds you lifeless, face down on the desk, arms protectively extended over documents, having just completed, at age 100, the most important transaction of your career.
George A. Davidson, a partner in Hughes Hubbard & Reed, writes: A Vanderbilt Law Review drew considerable press attention with a study of apparent ideological patterns in the hiring of U.S. Supreme Court clerks by law firms. But the data tell a more interesting story, one that is difficult to account for — a small number of law firms attract the lion's share of Supreme Court law clerks.
Ciara Torres-Spelliscy, an attorney for the Brennan Center for Justice, writes that when arguing Citizens United before the Supreme Court, Elena Kagan stood up for American voters and shareholders and tried to keep corporate dollars from overwhelming our political system.
John H. Wilson serves as the night court arraignment judge in Brooklyn Criminal Court, argues against the proposed elimination of the Assigned Counsel Plan.
Attorney Demetra M. Pappas reviews the upcoming HBO film in which Al Pacino portrays Jack "Dr. Death" Kevorkian.
Thomas A. Dickerson, an associate justice of the Appellate Division, Second Department, discusses the Supreme Court's recent ruling in Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Company and its possible impact.
Steven Zeidman, director of CUNY School of Law's criminal defense clinic, writes that coinciding with legislative and executive interest in indigent criminal defense is a rare opportunity for the Judiciary to intervene. In 2007, the New York Civil Liberties Union sued New York State alleging systemic and flagrant violations of the constitutional right to counsel. In a rare kind of legal perfect storm, the case was heard yesterday by the Court of Appeals.
Richard M. Berman, a U.S. District Court judge in the Southern District of New York and a former New York state Family Court judge, writes that a recent New York state report by the Governor's Task Force on Transforming Juvenile Justice, confirms that incarcerating children under the age of 16 in state prison facilities is attendant with mistreatment and child abuse — even as we are spending approximately $200,000 per incarcerated child per year!
Gary Muldoon, a partner with Muldoon & Getz, writes: After practicing law for several years, or doing anything for an extended period for that matter, the idea of a checklist sounds a rinky-dink. You're a professional, after all, and you know this stuff cold. Checklists are for beginners - or maybe not.
William J. Dean, executive director of Volunteers of Legal Service, discusses 18th century prison reformer and high sheriff of Bedfordshire John Howard, who advocated for clean, healthy prisons; clothing for the half-naked prisoners; restrictions on the use of underground dungeons; and separation of prisoners by age, sex and the nature of their offense.
Rory Lancman, representative for the 25th Assembly district in Queens and appellate counsel to Morelli Ratner, writes: Years from now, when the fiction of campaigning for public office is dispensed with and political seats are simply bought, sold and traded on exchanges resembling the stock market, we might ask ourselves how our political process came to look like a corporate version of one of those stories where humans lose control over the ever-sophisticated robots they have built and which end up taking over the earth.
U.S. District Judge Shira A. Scheindlin, in remarks presented on Jan. 13 at the Inns of Court, discussed how litigation is changing, especially in the areas of jurisdiction; pleading standards and case tracking; vanishing trials and the changing jury culture; alternative dispute resolution; and the impact of electronic communications on civil and criminal litigation.
Corporation Counsel Michael A. Cardozo, who will begin a third term next month as New York City's chief legal adviser, on Friday received the Cyrus R. Vance Tribute from the Fund for Modern Courts. In his remarks, reprinted here, he offered a vision for the evolution of the justice system in out society.
Kevin J. Curnin, a partner and the director of Stroock & Stroock & Lavan's Public Service Project, writes: Today, the law's impact on how we live and die is omnipresent. Health care reform, climate control accords and market regulation are the dominant examples, but there are others, less dramatic but no less deeply impactful: housing, bankruptcy, benefits, immigration, disability. The imbalance between "the haves and the have-nots" is with us now more than ever. Pro bono lawyers, at least part of the time, align with the "have-nots," the uneducated, the marginalized, the unprotected.
Michael E. Getnick, the president of the New York State Bar Association, writes: Increased need and diminished funding brought about, in part, by the economic downturn will translate into the denial of legal representation for millions of poor people this year alone. Hundreds of thousands of those people are New Yorkers. And these numbers reflect only those who have sought legal services. Many never ask for help. Millions of people simply try to represent themselves. Together with bar associations and good government groups all across the country working to shore up funding for civil legal services, thousands of attorneys in towns and cities all across New York and our nation are doing their part to narrow the justice gap by providing pro bono service.
William J. Dean, executive director of Volunteers of Legal Service, writes: Through recent interviews with lawyers, both partners and associates, undertaken in connection with the 25th anniversary of Volunteers of Legal Service, I have come to appreciate the epiphanies lawyers experience from their pro bono work, the most important being immense personal and professional satisfaction and a deepening awareness of the vicissitudes and courage of poor people.
Howard Gotbetter, an intellectual property rights and litigation specialist, writes: "This is the Inaugural Season of the new Yankee Stadium, said to be one of the most expensive sports arenas, costing over $1 billion. The Yankee organization, to enhance the investment, has copyrighted and trademarked all aspects of the stadium to the extent permitted. Exclusive licenses have been issued to sell photographs and posters, baseball caps and clothing with the Yankee name, and other forms of Yankee merchandize. Does the organization have the right to control all reproductions of the new stadium?"
Stephen M. Hudspeth, clinical lecturer at Yale Law School and a lecturer and Becton Fellow at Yale Graduate School of Management, writes: "Encouraging attorneys to do pro bono work is a perennial subject at law firms and among the bar. I know firsthand because for the last dozen years before my retirement five years ago from a large international law firm, I chaired its pro bono committee and had the opportunity to work on a number of pro bono cases myself."
Jeffrey D. Lebowitz, a judge of the Court of Claims and Acting Supreme Court Justice in Queens County assigned to the matrimonial term, writes: "While New York is a glamorous place to get married, it is a tough place to get divorced. We have created such elaborate laws and concepts that only the most collegial of divorcing couples and attorneys can navigate the morass we now know as matrimonial practice. Unfortunately, if one or both sides insists on litigating, or one or both lawyers do not see the benefit of early mediation or settlement, we are off to the races."
Paul Shechtman, a partner at Stillman, Friedman & Shechtman and an adjunct professor at Columbia Law School where he teaches Evidence, writes that it has been 27 years since Gary Cone was sentenced to death for murdering an elderly couple. In those years, Mr. Shechtman notes, Cone's case has been heard by the U.S. Supreme Court three times - a saga that speaks loudly (and poorly) about our criminal justice system.
William J. Dean, executive director of Volunteers of Legal Service, writes: David Copperfield begins, "I was a posthumous child. My father's eyes had closed upon the light of this world six months, when mine opened on it." Five weeks before my eyes opened, father's eyes closed forever. Sharing as I do this experience, I feel close to David, as did Dickens, who wrote in the preface to the novel, "I have in my heart of hearts a favorite child. And his name is David Copperfield."
Jack Edward Bronston, a retired partner with Davidoff Malito & Hutcher, writes: Oliver Wendell Holmes commented in his book "the Common Law," that judicial decisions often originate outside the law in the "inarticulate premises" which judges bring from their life experience to their decisions. Few cases demonstrate this more vividly than this year's Wyeth v. Levine, in which both "liberal" and "conservative" judges abandoned deeply held constitutional views to reach a result which, one may surmise, reflected their underlying "inarticulate" view of the facts, their "empathy" as it were, rather than a strict application of the law.
William Josephson, a retired partner of Fried Frank Harris Shriver & Jacobson who headed Attorney General Eliot Spitzer's Charities Bureau from 1999 to 2004, writes that Senator Liz Krueger and Assemblyman Jonathan L. Bing have introduced in the State Legislature S4778 and A7907, respectively, the so-called Uniform Prudent Management of Institutional Funds Act, as a new article of the Not-for-Profit Corporation Law. These bills, he cautions, continue an unfortunate trend that must be stopped if we are to avoid future Madoff scandals in the philanthropic world.
Andrew Sparkler, president and a founding director of The Dave Nee Foundation, a non-profit corporation that seeks to support and encourage organizations devoted to preventing suicide among adolescents and young adults, writes: In the wake of several attorneys' recent deaths by suicide, a number of articles in the national media have suggested that each of those deaths resulted from a particular disappointment or loss. But it is misguided to frame suicide as the direct result of a single stressful event.
Justice David B. Saxe understands that the appellate process in the Appellate Division, First Department, can be opaque and confusing to lawyers appearing before if for the first time and that even seasoned appellate practitioners have only a limited understanding of the internal workings of the court. So, in an effort to make these mysterious ways more transparent, the judge offers the following commentary on the practices of the court.
Southern District Judge Lewis A. Kaplan, in remarks deliever at his acceptance of the Learned Hand Medal of the Federal Bar Council on April 30, 2009, urged his audience to "remember always that the practice of law is a profession, not simply a business. Professional life involves more than billable hours, profits per partner, and rankings on the American Lawyer charts. It involves more than providing free legal work to a charity or cause in which one happens to believe, important as that can be. The defense of the indigent is a crying need, and it is the responsibility of the bar to see that this need is satisfied."
Robert L. Conason, the senior partner of Gair, Gair, Conason, Steigman & Mackauf, Steven E. Pegalis, the senior partner of Pegalis & Erickson, summarize position of the New York State Trial Lawyers Association in opposition to proposed legislation that would establish immunity for obstetricians to liabilty over certain perinatal brain injuries.
Steven Banks, attorney-in-chief of The Legal Aid Society, Seymour W. James Jr., the attorney-in-charge of the society's criminal defense practice, and John Schoeffel, an attorney with the society's special litigation unit, write: Large states with big cities that ordinarily are considered akin to New York - including California, Florida, Illinois, Massachusetts, Michigan and New Jersey - have utilized broad criminal discovery provisions for years. It is high time for New York to rectify its antiquated criminal discovery statute and join them.
Michael Quiat, managing partner of Uscher, Quiat, Uscher & Russo, writes: It is now almost three years since the New York State Insurance Department issued Circular Letter No. 14 claiming it " . . . is drafting regulations that would prohibit the use of discretionary clauses in all new and existing accident and health insurance policies, life insurance policies, annuity contracts and subscriber contracts upon renewal, modification, alteration or amendment . . . " But as yet there is no hint of a regulation which would give New York citizens the force of law they need to level the legal playing field.
Kenneth P. Thompson and Andrew S. Goodstadt, partners at Thompson Wigdor & Gilly who represent almost 20 AIG employees in the financial products division who received the retention payments that have sparked a national furor write that it has been nearly impossible to open a newspaper, turn on the television or even attend a social function without being exposed to the public anger over AIG employees who recently received a total of $165 million in "bonuses." However, they say, the public's uproar over these payments, which has been fueled by the media and elected officials, is based on a fundamental misunderstanding of the nature of these payments, namely, that they are "bonuses" in the conventional sense and money rewarding employees for the failure of a bankrupt company.
Steven Zeidman, a professor of law at CUNY School of Law, writes: Imagine a place where the local police annually stop and frisk about 530,000 people, arrest 360,000, and issue summonses to another 600,000, for a staggering total of over 1.5 million such law-enforcement encounters. Imagine as well that close to 90 percent of those arrested, stopped and frisked, or issued a summons are people of color. You need not imagine; that is the reality in New York City.
James M. McGuire, an associate justice of the Appellate Division, First Department, writes: The adverse impact of the financial crisis on law firms presents an opportunity for the soon-to-be lawyers whose promising careers have been put on hold, for the firms, for the court on which I'm privileged to serve and, I think, for the public. Why not invite these new attorneys to work with the justices of this court as law clerks? We certainly could use their help, and I'm confident they would be greatly enriched by the writing and analytic skills they would hone and by the knowledge, both substantive and procedural, they would acquire.
Thomas M. O'Brien, an attorney with the special litigation unit of the Criminal Defense Practice of The Legal Aid Society, writes: There is a scenario that occurs in New York City Criminal Court in numerous cases. A case is scheduled for a trial to begin on a particular date. The accused appears in court. The defense attorney is there. The judge is there. Court personnel are there . . . At that point, the prosecutor on the case, or the designated courtroom assistant district attorney, announces that the prosecution is "not ready" for the trial. An adjournment is requested. The judge sets a new date for trial, some two or three months into the future, and the parties disperse. Presumably, the defendant's statutory right to a speedy trial - 90 days for a misdemeanor, will prevent the prosecutor from causing similar delay again. That might have been the intent of the Legislature, but the reality of the administration of criminal justice in New York City is radically different.
Victor A. Kovner, the chair of the Fund and Committee for Modern Courts, writes: It is not enough only to provide for a commission-based appointive system for the selection of judges of our highest court. We need to end judicial elections now for all our courts, get the money and politics out of judicial selection in all courts, or at a bare minimum provide for public financing of judicial elections.
Jerry H. Goldfeder, special counsel at Stroock & Stroock & Lavan, writes: The vacancy provision in the 17th Amendment appears simple enough: if a state has opted to allow for a temporary appointee to the Senate, she may serve until an election is required pursuant to that jurisdiction's election code. In New York, in the circumstances of Ms. Clinton's vacancy, newly appointed Senator Kirsten Gillibrand does not face the voters until November 2010, almost two full years after assuming office. This revelation may have come as a surprise to most voters, indeed, to most lawyers who do not specialize in the area. The news is especially startling after an election year in which so many people were actively engaged.
William J. Dean, executive director of Volunteers of Legal Service, writes: Those of us who have a professional or official relation to the suffering of others - lawyers, judges, police, doctors, social workers, can benefit from reading Chekhov. He deepens our understanding of the human condition; a parlous condition, in his view.
Ciara Torres-Spelliscy, counsel at the Brennan Center for Justice at New York University School of Law, writes: In a state as diverse as New York, the judiciary should not miss out on the contributions of female and minority jurists. A few structural changes would ensure that next time the governor will receive a more diverse short list.
David B. Saxe, an associate justice of the Appellate Division, First Department, offers some remarks and personal observations on the topic of judicial collegiality in the context of his participation in an intermediate appellate court.
John F. Werner, chief clerk and executive officer of New York County's Supreme Court, Civil Branch, and Robert C. Meade Jr., special counsel to the administrative judge, write that since becoming a judge in 1984, Justice Silbermann has sought to make a contribution to the public welfare because that is the kind of person she is - someone more interested in the well-being of others than in her own. She will leave behind a court system that is notably better for her having been here.
William J. Dean, executive director of Volunteers of Legal Service, writes: Next year marks the 400th anniversary of the 1609 arrival of Henry Hudson.
Ann Pfau, chief administrative judge of the New York state courts, writes: Early this Summer, as foreclosure filings in New York hit record levels, the New York State court system announced a Residential Mortgage Foreclosure Program, one of the first court-initiated programs in the country to address the residential foreclosure crisis. That program, piloted initially in Queens County, now serves as a model for our statewide efforts. It took on special importance in August with the enactment of the new foreclosure legislation, chapter 472 of the Laws of 2008.
In remarks given upon receipt of the William H. Rehnquist Award for Judicial Excellence, Jonathan Lippman, presiding justice of the Appellate Division, First Department, said: So much of the criticism directed at judges and courts these days is predicated on a distorted concept of accountability. Well-funded and organized interest groups are campaigning to convince Americans that the judiciary is no different from the political branches of government. With the judiciary no longer sitting on a public pedestal or enjoying the kind of societal esteem that sustained us in the past, there is no greater challenge for court systems today than to prevent these efforts from metastasizing into broader attacks on the judiciary's capacity to govern itself as a co-equal branch of government.
Daniel J. Kornstein, a partner in Kornstein Veisz Wexler & Pollard, writes: Dec. 9 was the 400th anniversary of the birth of John Milton, and we American lawyers who value freedom of the mind should remember it. For it was Milton who, in addition to his undying poetry, wrote one of the greatest and most eloquent defenses of free speech.
In remarks made on receipt of the Cyrus R. Vance award from the Fund for Modern Courts on Dec. 5, Charles J. Hynes, Kings County District Attorney, said: When funding bills support initiatives such as Brooklyn's Drug Treatment Alternative to Prison and Community and Law Enforcement Resources Together, I believe that criminal justice policies for many prosecutors across the country will shift significantly toward prevention and alternatives to prosecution and incarceration.
Alex Pangourelias, a junior at Bayside High School, Queens, and the grand prize winner of the annual essay contest on judicial independence sponsored by the Association of Justices of the Supreme Court of the State of New York, the New York City Department of Education and the New York Law Journal, writes: In order to preserve democracy in the United States the judicial system needs to enforce justice fairly, impartially, and with strict adherence to the law and the U.S. Constitution. This is precisely how our forefathers meant for the judicial system to effectively work in a democratic society.
Clarence S. Barasch, an attorney in New York, writes: After 80 years, Meinhard v. Salmon is still memorable for its elegant statement of the obligations of those bound by fiduciary ties compared to those subject only to the "morals of the market place." The eloquence of the language fashioned by Chief Judge Benjamin N. Cardozo has become as meaningful as the holding in the case.
Raoul Felder, a partner in Raoul Felder and Partners, writes: The present imbroglio involving pay raises for New York State judges is past being an embarrassment, and even past being a public disgrace. A society that allows young lawyers just out of school to be earning more than state Supreme Court judges is a sad reflection on the way we order our priorities. It is an absurdity, made even more painful and unjust by elected officials who seek to link any raises for beleaguered judges who work full time and are severely limited in their ability to supplement their income to raises for part-time legislators who are free to supplement their income as they see fit.
James E. Mercante, a partner at Rubin, Fiorella & Friedman, writes: Pirates are a popular subject of Halloween and movies. But piracy is far from a source of entertainment on the high seas. Today's pirates are not interested in either ship or cargo because those have to be sold to turn into cash. These days, the prize is ransom money in exchange for returning not just the ship and cargo intact, but the crew alive.
Karen J. Greenberg, executive director of New York University Law School's Center on Law and Security, writes: When historians review the Bush/Cheney administration, likely they will conclude that, above all other administrations, it has shown the most disrespect for the Constitution. Nowhere has this disrespect been more evident than in the treatment of detainees and in the recent announcement by Defense Secretary Robert Gates that Guantánamo Bay prison will not close under the Bush administration.