New York State Bar Association Journal

In this issue, Klein, Varon and Greenberg write about the “murky waters” of employment law with respect to employee termination. Do you believe that the current patchwork of laws is unfair to employers?

January 29, 2010
To the Editor:
I do hope that David Paul Horowitz knows heaps more about the CPLR than he does about baseball ("Burden of Proof," in your issue of January 2010), or we New York lawyers are in more trouble than he thinks.
In that "long ago, simpler time" that Mr. Horowitz reminisces about, when the CPLR took effect — 1963 — he says that "the Yankees were coasting toward the playoffs." No. There were no playoffs in major league baseball until 1969. See, e.g., anything on the Internet, or consult anyone with a passing familiarity with baseball.
Really. This is basic stuff. Please try to do better.
Sincerely yours,
Arnon D. Siegel
New York City

To the Editor of the New York State Bar Association Journal:

In Judge Lebovits’s November/December 2009 “The Legal Writer” column he advised, “[a]ll capitals are ineffective.” They should never be used “regardless of the context” (citation omitted). Sensible enough. His advice, although offered in an article dedicated the etiquette of e-mail, echoed that previously given in his July/August 2009 column: “The uniform size of capital letters makes them indistinct; the reader will have difficulty processing the document.” This advice, in turn, cited to his May 2003 column, in which he explained capitalizing entire passages “common in point headings in briefs, makes briefs hard to read.”

So why is it then that in his January 2010 column, “Getting to the Point: Pointers About Point Headings,” we are told, “Point headings in the table of contents and in the argument section are written in capital letters”? True, this tired advice undoubtedly can be found in numerous law school textbooks, which sometimes almost apologize for this annoying convention by exhorting students to keep dominant point headings short, because as written entirely in capital letters, they make for difficult reading. If the whole point of point headings is to “play a powerful role in persuasion” as Judge Lebovits writes, then absent some court rule, shouldn’t advocates who would like to persuade the court actually write point headings that are easy to read? Of course they should. The use of all capitals in point headings, like the liberal use of Latin phrases and legalese, may prove to the court that you’ve gone to law school, but it will not help you prove your client’s case.

Matthew J. Walko
Boston, Massachusetts

Are you a solo or small firm practitioner? Are you considering becoming one? What is your primary motivation for doing so? What are your greatest fears?

We received the following note from Bentley Kassal, the author of “Update: Did the Appellate Odds Change in 2008?”, which appeared in the November/December 2009 Journal on page 35.
I have received calls about the percentage of motions of leave to appeal at the Court of Appeals in 2008. Here are the statistics:
For 2008, the official court statistics disclose that the Court of Appeals granted 6.8% of the motions for leave to appeal in civil cases, which is down from 7% granted in 2007.
The average time from return date to disposition for such applications in 2008 was 60 days, while in 2007 it was 62 days.
Thank you,
Bentley Kassal

New York State is looking for more revenue and one of its new tools is increased penalties for tax cheats. Do you think the new laws will be effective in achieving that goal?

Our July/August issue featured Ronald Offenkrantz’s skeptical take on the utility, speed and cost-effectiveness of arbitration in complex commercial cases. Edna Sussman answers in this issue, pointing out that arbitration can be the best route particularly for companies that need to maintain productive business relations. What has your experience been?

Anthony Davis and David Elkanich write about the increased level of risk law firms can face in a recession. Firms eager for new work might be inclined to take on matters they would otherwise approach cautiously. Does your firm screen potential new matters? And has that changed as a result of the economic climate?

To the Editor:

Ronald Offenkranz, in the July/August edition draws attention to the
costs of complex commercial arbitration proceedings. In particular he
focuses on the fees charged by arbitrators and suggests that if clients
were aware of these fees at the outset, they would perhaps abandon the
process in favor of the court system.

Mr. Offenkranz is correct; fees charged by commercial arbitrators can be
substantial. But suggesting that this is likely to come as a surprise to
a participant misses an important point. In complex commercial matters
the arbitrators are typically selected by the parties. Deadlocks are
usually broken by the facilitator, an example being the AAA. Arbitrators
who are members of the commercial roster of these facilitators are
required to disclose their fee requirements at the time of selection.
Any party is free to disqualify someone under consideration on the basis
of numerous factors, fees being just one. As Mr. Offenkrantz notes, the
parties provide the facilitator with an estimate for the amount of time
they believe the arbitration will consume. So it follows that at the
outset of any proceeding a party has the ability to estimate the cost
for the services of the arbitrator. But the total cost of any
proceeding, be it in arbitration or the court house, is never knowable
until the end.

Dispute resolution is expensive. The benefits associated with
arbitration go far beyond just cost: speed, confidentiality, control
over the selection of the fact finder, an ability to set the rules for
the fact finder, limitations on disclosure and motion practice, freedom
from appeals, to name a few. But there is a price to be paid for these
benefits. Similarly, there are benefits to be derived by insisting on
the court house for the resolution of a dispute: limited costs for case
administration, ability to engage in extensive discovery, ability to
utilize motions, appeals, to name a few. And there is a price to be paid
for those benefits. If in the long run the costs are comparable, then
clearly cost shouldn't be seen as a deciding factor.

Arbitrators charge for their services for the same reason that lawyers
charge for their services: they are in business to make a living. That's
nothing to be ashamed of.

Paul Bennett Marrow
Chappaqua, NY

Author Ronald Offenkrantz disputes the notion that arbitration and other forms of ADR are always cost-effective. In fact, he claims, in complex commercial cases litigation is the money-saving alternative. What has experience taught you about the pros and cons of ADR?