June 2018 Archives

Welcome to the June 2018 Issue of Electronically In Touch

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We are pleased to submit the June 2018 issue of Electronically In Touch. This issue consists of informative articles regarding the importance of certain boilerplate clauses in contracts, hints and tips for communicating with clients, upcoming events put on by the New York State Bar Association, an update from the Corporate Counsel Section, and a spotlight on Young Lawyers Section member and Secretary Anne LaBarbera, Esq.

Electronically In Touch is a member driven publication. We welcome submissions from members on any relevant topic, including practice tips, substantive legal articles, case updates, work/life balance, and information regarding upcoming meetings and events. Please submit articles to Justin Batten, Esq. at jwb413@nyu.edu.

Justin Batten is the newly elected editor-in-chief of Electronically In Touch. He received his J.D. from New York University School of Law in 2017 and currently works as an Assistant Attorney General in the Office of the New York State Attorney General, where he works on antitrust and consumer protection issues.

The Officers of YLS and the Editors of Electronically In Touch wish to make clear that the thoughts and opinions expressed in the articles that follow are those of the respective authors and do not represent the thoughts and opinions of the New York State Bar Association, Young Lawyers Section, its Officers, or Executive Committee.

A Message from the Chair of the Young Lawyers Section

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By: Terrence Tarver, Esq.

If you find the day to day rigors of being a young lawyer tough, then I challenge you. If you believe that under your current state of affairs there is no avenue to pay down your student loans in order to enhance your quality of life, then I challenge you. If you think the New York State Bar Association is full of people who will not listen and are stuck in their old ways of doing things, then I challenge you.

As the incoming Chair of the Young Lawyers Section ("YLS"), I want to state emphatically and loudly that we want you. We want to hear your voice. We want to listen to your ideas. We want to work with you to accomplish change for the betterment of the lives of young lawyers. Sitting on the sidelines is not the answer. Transfer of blame is not the answer. Complaining without solutions is not the answer.

I challenge you to join us. Come to our meetings. Email us. Call us. Be active. Lead!

Speaking of leading, I am honored and proud to be the incoming Chair of the YLS, and I intend to lead, in part, by continuing the full evaluation of the YLS, which I believe really began under our immediate past Chair, John Christopher, who had a wonderfully successful year. I thank him for his leadership and service and look forward to his continued service. I also want to thank past Chairs Erin Flynn, Erica Hines, and Sarah Gold, who remain instrumental to the success of the YLS, and who we expect to continue to aide us with their advice and service.

Over the coming year, we will continue certain effective programs that have been established and that are a great benefit to young lawyers around the state like the Trial Academy; while at the same time questioning, analyzing, and scrutinizing other programs. Said analysis will not stop with just programs; for we will do the same thing with the internal policies and procedures of the YLS. In short, we are seeking to ascertain the exact value of our programs, policies, and procedures to young lawyers. Once complete, we will compare them all to other alternatives and ideas and attempt to implement the changes we believe necessary.

Thus, as you can see, now is the time to attempt to accomplish change. Now is the time to act! You can start by attending our exciting summer meeting in Saratoga Springs June 29-30. Click here to read about the program: https://www.nysba.org/WorkArea/DownloadAsset.aspx?id=81993. To learn more about the YLS, please visit the website at https://www.nysba.org/yls/.

Lastly, I would like to recognize and briefly introduce the rest of the team of Officers of the YLS, who are so vital. They include Lauren Sharkey, Chair-Elect; Michael DiFalco, Treasurer; and Anne LaBarbera, Secretary. They have put in countless hours through the years to the YLS trying to make it successful. Thank you!

Boilerplate Series

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By: Zach Levin, Esq. and Nick Scannavino, Esq.

While legal contracts can be intimidating, many of the provisions actually follow recognizable patterns that can be broken down into simple, comprehensible pieces. Our boilerplate series focuses on the standardized provisions that are typically found at the end of the contract.

Equitable Remedies Clause

Equitable remedies are when a court awards a nonmonetary judgment, such as issuing an order to a person or company to do something (specific performance) or refrain from doing something (injunction). A court will typically award an equitable remedy when monetary relief for a breach of contract is not easily calculable or adequate to fully compensate the non-breaching party.

An equitable remedies clause is often included when a contract places confidentiality or non-compete restrictions on a party. In the event that a party breaches such restrictions, an equitable remedies clause would allow the non-breaching party to seek an order from a court to stop the breaching party from continuing to breach the agreement.

Let's take a look at a standard, boilerplate equitable remedies clause:

The parties acknowledge that monetary damages may not provide a remedy in the event of a breach and therefore, in addition to any other rights of the parties, each party grants the other party the right to enforce this Agreement by means of injunction, both mandatory (specific performance) and preventive, without the necessity of obtaining any form of bond or undertaking whatsoever, and waives any claim or defense that damages may be adequate or otherwise preclude injunctive relief.

In addition to granting the parties the right to seek equitable remedies, an equitable remedies clause often carves out the requirement that a party obtain a bond or other undertaking when enforcing its rights. Many courts require a plaintiff to post some kind of bond when seeking equitable remedies in order to protect against wrongful claims. Because such a bond might inhibit a party's ability to bring a valid claim, parties will often agree to eliminate the requirement of posting a bond when seeking equitable remedies.

Furthermore, an equitable remedies clause often requires the parties to waive their rights to challenge the availability of equitable relief. Courts are generally not legally required to grant equitable relief and will usually favor monetary relief. So, this waiver language helps a court get comfortable on exercising its discretion to grant equitable relief because the breaching party has already agreed to not challenge any equitable award.

Limitation of Liability Clause

When entering into a new business arrangement to provide services to a customer, major liabilities lurk in the background because customers can employ your company's technology in unpredictable ways, causing data breaches, business interruption, and a host of other costly problems. To protect against this risk, companies often include a limitation of liability clause in their contracts in an attempt to contractually limit their potential exposure in the event of a lawsuit over events governed by the contract. Without such a limitation, companies could be subject to liability that far exceeds the fees they are receiving under the contract.

The limitation on liability clause can either be applied broadly to any claim arising from the contract or narrowly to certain types of claims arising from the contract. This often depends on the nature of the services being provided, the type of transaction, and the negotiating leverage of each of the parties.

For a real-world example of a limitation of liability clause, let's look at the following clause from the Coinbase User Agreement:


A key aspect of the limitation of liability clause is the "cap" on liability. The amount of the cap can be calculated in various ways but is typically related to the total fees contemplated under the contract. The Coinbase example includes a variation where the liability is limited by the total amount deposited in the user's Coinbase account.

When negotiating contracts that include automatic renewal terms, companies should strongly consider including a timing mechanism on the liability cap. For example, consider a provision that limits the liability to the amount of fees payable under the contract over the twelve-month period preceding the event giving rise to the claim. This could greatly reduce liability, as the total fees over the life of an automatically renewing contract could grow to a substantial sum over the full life of the contract.

Another typical feature of limitation of liability clauses is the exclusion of liability for certain types of damages (such as indirect, special, and consequential damages, as shown in the Coinbase example). This gets very technical, but the general idea is to limit liability to direct damages under the contract, in an effort to provide more certainty with respect to the extent of damages that might be awarded to a party by a court.

Parties to a contract should also be mindful that limitation of liability clauses are subject to public policy concerns. For example, if the limitations are unreasonably broad or the cap is unreasonably low, a court may not be willing to enforce the clause. The last sentence in the Coinbase example touches on this by stating that the limitation of liability may not be enforceable in some jurisdictions.

One other aspect to note is that the limitation of liability clause is often in all CAPS. The legal theory here is that because the provision has such significant consequences, the parties to the contract are less likely to miss the provision if it has specialized font characteristics.

Nick Scannavino is the founding partner of Scannavino Law LLP, a boutique law firm based in New York City offering legal and strategic advice to forward-thinking entrepreneurs, startup companies, and startup investors. Nick has a broad range of experience in corporate law, venture capital, blockchain technology, and M&A. Before starting the firm, Nick was a corporate attorney at a boutique business law firm and, prior to that, began his career at a large international law firm.

Zach Levin is a partner at Scannavino Law LLP and has a broad range of experience in startup law, venture capital, bank finance, and renewable energy transactions. Before joining the firm, Zach worked as an attorney at a large international law firm, worked inhouse at a leading global investment bank, and served as a finance director at a utility scale solar developer. Zach is a passionate about his family, social justice, and staying fit.

By: Stefan Savic, Esq.

Effective client communication is of paramount importance for every litigator. While it may be "just a job" for us litigators, for most litigants their cases represent much more as they can significantly affect their lives or businesses. In light of the heavy burden that being part of lawsuit already has on their lives, litigants should at all times have a clear understanding of what is going on in their cases. As counsel of their choice, it is our duty to explain it to them. Yet, the fact that the largest percentage of complaints about lawyers relates to the lack of proper client communication evidences that lawyers often neglect to adequately communicate with clients.

Effective communication does not only involve keeping clients apprised of what is happening in their case, but also doing so in a way that they can understand and appreciate what you are conveying. In order to do so, lawyers must know, among other things, how to walk the fine line between providing sufficient information and giving too much information that may result in just more confusion.

Explain Why Your Analysis Is Important

Simply providing a legal analysis without an explanation of practical implications of such analysis is seldom, if ever, helpful. This is why the former can often be a task trusted to first-year or even summer associates, while the latter falls on the associates or partners in charge of the case. If a client asks you to review their non-compete agreement and you explain the temporal and geographical limitation requirements, that information will be of little value without saying why these requirements matter. In this example, they matter because if an employer decides to enforce the non-compete clause, an employee can argue its unenforceability on those grounds. In other words, for every piece of legal analysis that you provide to a client, you should always explain how that analysis affects the client's intermediate or ultimate goals. This is more important for them to understand than the actual legal nuances that go into it.

Include an Abbreviated Version of Analysis Before a More Detailed One

The common challenge in dealing with an audience consisting of individuals with differing levels of understanding of legal principles is to avoid appearing patronizing towards those who may already understand them. The part of your audience that is familiar with the concepts for which you provide detailed explanations may consider it wasteful and, in light of lawyers' general egoistic reputation, even offensive. Perhaps more importantly, long emails with familiar rhetoric may discourage busy readers from reviewing all the substance, and, thus, result in a failure to convey the important information.

One of the ways to address this challenge is to provide a succinct version of the analysis at the get-go, and then elaborate in sufficient detail so that the members of your audience that require it will fully understand your explanation. Give your client an option between a summarized and detailed version of the analysis.

Say Enough, But Not Too Much

It is equally important to explain the analysis in a way that does not cause additional confusion through excessively elaborate analysis. Explaining to clients how naming an additional party in a suit may affect their ability to remain in a federal court may require a brief lecture on relevant provisions of 28 U.S.C. ยง 1332, but may not require that you explain the difference between the Second Circuit's and Third Circuit's treatment of citizenship of defunct corporations. This is not always as simple as it sounds since determining how in-depth you may have to go in your analysis will depend on a large number of variables.

Make Sure that You Have the Same Understanding of the Terminology

Working with international clients often requires constant communication with those clients' foreign counsel, whether it be in-house counsel or litigators representing them in another country. This can present a separate challenge since those foreign attorneys may have a good grasp of legal doctrines and processes in the jurisdictions where they practice, but may be completely unfamiliar with even the basic concepts of U.S. litigation.

Basic legal concepts like diversity jurisdiction or discovery that are (or at least should be) as familiar to the U.S. litigators as their coffee orders may be a big unknown for foreign lawyers. It is important to take a step back and make sure that, even though you are dealing with an experienced foreign lawyer, they understand what may be to us basic terminology. Also, as I previously noted, one should be careful when explaining certain elementary concepts to not come off as condescending.

Avoid Legal Jargon in All Client Communication

Keep things easy to understand. While lawyers often have a difficult time moving away from using legalese in certain types of legal documents, lawyers should categorically avoid complex legal jargon and legalese in communicating with clients. A court clerk may want you to start each of your paragraphs with "whereas," but your client never will. Using words with some meaning that lawyers continue to use in contract provisions or wills because they don't want to change the centuries-old, proven recipe will only confuse clients who will likely assume that multiple terms are there because they have different meaning.

I have heard a lawyer call himself bilingual once because he knew how to speak English and "legal" (as you may expect from someone who would make that sort of comment, I am not sure that he could really speak either that well). There is unfortunately some truth to this as it is significantly different talking about legal concepts to lawyers than to non-lawyers. Just as a Game of Thrones fan cannot really explain what an episode in Season 6 is about to someone who does not watch it, explaining the intricacies of the Rule Against Perpetuities to a non-lawyer (or in that example, even to a lawyer) can be very challenging.

Always Offer to Explain Things Further or Clarify

Finally, always offer to discuss any issues further. Encouraging your audience to tell you what they need to understand better will save time down the line, especially if they later reveal they misunderstood portions of your analysis. Ideally, clients will ask you to explain further what they are unsure about, but that is not always the case, so it is a good practice to encourage them to do so.

Stefan Savic is a partner at Shipkevich PLLC. He represents clients in all stages of litigation and alternative dispute resolution proceedings. Stefan's litigation practice focuses on commercial litigation in federal and state courts around the country in various subject matters ranging from civil RICO claims to misappropriation of trade secrets, unfair competition, and breaches of fiduciary duties. While Stefan's work focuses heavily on civil litigation, he also assists businesses in avoiding costly litigation by assuring that clients have safeguards in place at all stages of business management. You can reach him by email at ssavic@shipkevich.com

How I Practice

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Anne LaBarbera, Esq.
Syracuse/New York City

By: Brandon Vogel

What are your areas of practice?
I concentrate on Media and Entertainment in New York. That includes Trademark and Copyright and Business advice for artists. I do litigation and transactional work. I also have an office in Syracuse and have a more general practice upstate.

Describe a typical day for you?
I am not sure if there is a typical day for a small firm attorney. It all depends on what you are working on. At times, I can spend all day downtown in court or looking up files and, at times, I spend more time in front of my computer drafting court papers or transactional documents.

Where do you practice? Do you have a stand-alone office or home office?
My Syracuse office is a physical office in the State Tower Building. In New York, office space is very expensive. At the moment, I utilize services provided to small law firm members at the New York City Bar Association, using their virtual law firm address, and meeting spaces to meet with clients in midtown. I have phone numbers on mobile phones with area codes for New York, Syracuse, and the Finger Lakes region so my clients can call an area code that seems familiar and those who still have a land line won't have to worry about long distance charges. Work/life balance improves when you have a physical office, so I hope to have one in New York as soon as I can.

What is the most rewarding thing about having your own practice?
When you need to take some time off, you don't have to convince a boss. You make the calculation yourself as to whether you have the time and will get your work done. On the rare occasion that you don't have any work that needs to get done, you don't have to sit at your desk and look busy, you can just leave.

What are some of the challenges about having your own practice?
When something has to get done, it has to be you doing it. At times, you may have to stay up late or come in on the weekends. It is a luxury to be an employee and only do the lawyering. When you own your practice, you have to do practice management as well and it takes up some of your time that you don't get paid for.

What are your must-have tech tools/apps?
My case management software is indispensable. I use MyCase but I know other attorneys who use other software. I would not recommend going it without case management software. I also have a beast of a laser printer that does letter and legal sized printing and a robust shredder.

How do you market your practice? How do you find new clients?
I use word of mouth and referral services at bar associations. I use the NYSBA LRIS and, in the past, I have used the Onondaga County Bar Association Legal Referral Service, which I recommend.

When and where do you interact with other attorneys?
I spend a lot of time at a number of bar associations including NYSBA. Bar associations are everything.

How do you stay informed with legal news/developments?
Twitter, various publications like Financial Times, Hollywood Reporter Esq., New York Times and the like, as well as networking and participation in NYSBA sections and committees. I am an active member of NYSBA's Entertainment, Arts and Sports Law Section and the Committee on Media Law.

If a fellow attorney decided they wanted to start their own practice, what is the one thing they should know?
Bar association participation is key. Bar participation will be how you grow as an attorney and how you will grow your practice. I also recommend full participation: be on committees, join sections, come to events, get your CLE credits in person and try to network before and after.

Corporate Counsel Section Update

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By: Kenneth Zweig, Esq.

The Section is going through a transitionary phase. Many of the older members are still there but new members are being introduced as well. We had three or four new members of the Corporate Counsel Executive Committee installed at the beginning of the year.

The Section's most lasting legacy is the Kenneth G. Standard Internship Program. This program offers students in law school, typically from social diverse areas of society, the opportunity to work for in an in-house counsel for their summer internship between either their 1st and 2nd or 2nd and 3rd years of law school. The Section contributes half of the funds to the intern while the company contributes the other half. The companies involved this year are Pepsi, Salesforce, Urban Justice Initiative, Con Edison and Visiting Nurse Service of New York. The internship dinner will be held this year on July 24 at Pryor Cashman, 7 Times Square. As part of the internship program, the Section is seeking sponsors. Since it is a program for interns, i.e. people still in law school, the Section was debating whether to seek a sponsorship from the Young Lawyers Section. The Section decided to sponsor a program put on by the Committee on Women in the Law about the #metoo movement on May 31. The Section donated $500.00 and sponsored the event.

The Section voted to combine their annual meeting in January with the Alternative Dispute Resolution section so our meeting will be combined this year.

Two things in the pipeline are a possible collaboration with the Westchester County Bar Association for an event for veterans on November 13. The event would provide seminars and workshops to help veterans with: receiving VA benefits, certifications, VA businesses, and loans and grants from the VA. The other event is an event with the FBI. The FBI is looking to come in and have a meeting with our Section on ways in which the FBI and cybersecurity lawyers can work together to combat cyber-crimes.

Finally, the Section is concerned about membership, as most sections are. The overall Bar has lost members over the years so there is less concern, but throughout the past year the Chair of the Membership Committee has circulated lists of people who have dropped from the Section and/or from the Bar altogether to try and reach out to those people.

Upcoming Recommended Events

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June 14, 2018
Challenge of Achieving Meaningful Diversity and Inclusion - This event is in Stamford, Connecticut. It includes a free networking lunch.
Cost: Free for members and $125 for non-members.
Time: 11:30pm to 2:00pm

More information: http://www.nysba.org/store/events/registration.aspx?event=0FE5CT

June 14 and 15, 2018
International Bridging the Gap - This event takes place in New York City. It is for attorneys who wish to expand their skill set to International Law. This event is part of Global Law Week 2018.
Cost: $420 for members, $295 for International Section Members.
Time: 9am to 6:30 pm

July 12-15, 2018
Family Law Summer Meeting - This CLE gives participants the opportunity to earn up to 6.0 MCLE Credits including one Diversity and Inclusion credit. It takes place in Vermont. This program is being recommended for both novice and experienced trial attorneys practicing Matrimonial Law.
Cost: $900 for members, $775 for Family Law Section Members, $450 for members admitted 7 years or less, and $250 for MCLE credit only. Not-for-profit attorneys get a 50% discount.

August 9, 2018
Attorneys Day at Yankee Stadium - This event takes place at Yankee Stadium in the Bronx. $5 from each ticket purchase goes to the Bar Foundation. The first 250 people to buy a ticket get a cap with NYSBA and Yankees logos on it.
Cost: $40 to $103. Some tickets include food and pre-game networking.

A full list of all New York State Bar Association Events can be found at https://www.nysba.org/store/calendarschedule.aspx?EXCLUDEEVENTTYPE=X

Brand New Members of the Young Lawyers Section

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Please join me in welcoming the following new members to the Young Lawyers Section!

April 2018:

Sabreena Khalid, Esq.

Michael Stuart Tomback, Esq.

Richard Geller

Nakia Tenisha Martin, Esq.

Michael Patrick McGeown-Walker, Esq.

Consuelo Valenzuela Lickstein, Esq.

Danielle E. Bernard

Danielle D'Abbraccio, Esq.

Shane Leary Farrell, Esq.

Shereen Noofan Menwer, Esq.

Nicholas Nisson Khayumov, Esq.

Edgar Ageolar

Jeanine Amato

Niki Backos

Mellia Bakir

Alexandre Pierre Louis Bavoillot, Esq.

Phillip Ernest Carnevale

Meghan Clemente

Michelle D. Cole

Courtney Dunn

Megan Edwards

Cassidy Fitzgerald

Louise Fournier, Esq.

Paulina Gashi

Paul Generosa

Alexandra V. Georgetti, Esq.

Jake Goldstein

Fraser Birrell Grier

Richard Gullo

Daniella Gutgarts

Nicole Lanette Harris, Esq.

Alexandra Horn

Kurt H. Jones

Jieying Kok, Esq.

Omer Kremer

Kerry McGrath

Earl Menard, III

John Bennett Meyer

Daniel T. Morrison

Joseph W. Njeri, Esq.

Olga Pappas

Hayleir Peart

Emma Pletenycky

Jonathon Ricottilli

Joseph Saputo

Anna Sarkisyan, Esq.

Heidi Rae Schumann, Esq.

Nicholas Sioufas

Martine Stabell

Danielle Zabihialam

Chris Zamlout

Join the Young Lawyers Section

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Become the voice of newly-admitted and young attorneys in NYSBA. Designed to help make the transition from law school to practice an easier one for newly-admitted attorneys, the Young Lawyers Section connects you with experienced attorneys lending general advice, legal guidance, or expert opinions. Take advantage of educational programs, networking events, and the exclusive Young Lawyers Section Mentor Directory, which is just one of the Section's mentoring initiatives. The Section publishes Electronically In Touch and Perspective. Law students may also join the Section and get a jump start on their careers.

Are you interested in volunteering for a Section Committee? Please email Amy Jasiewicz at ajasiewicz@nysba.org and indicate the committees you wish to join. The Young Lawyers Section has the following committees:

  • Executive Committee
  • Communications Committee
  • Community Service and Pro Bono Committee
  • Diversity Committee
  • Law Student Development Committee
  • Long-Range Planning Committee
  • Membership Committee
  • Mentoring Committee
  • Nominating Committee
  • Perspective Editorial Board


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Electronically In Touch is the electronic news-publication of the NYSBA Young Lawyers Section (YLS). It is a member-driven publication that encourages YLS members to write articles. We welcome submissions from members on any relevant topic, including practice tips, substantive legal articles, case updates, work/life advice, and information regarding upcoming meetings and events. Please submit articles to Justin Batten, Esq. at jwb413@nyu.edu.

The Officers of YLS and the Editors of Electronically In Touch wish to make clear that the thoughts and opinions expressed in the articles that follow are those of the respective authors and do not represent the thoughts and opinions of the New York State Bar Association, Young Lawyers Section, or its Officers or Executive Committee.

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