http://nysbar.com/blogs/barjournal/ New York State Bar Association Journal Editorial Blog NYSBA Blogging Policy en Copyright 2010 Tue, 23 Feb 2010 10:32:17 -0500 http://www.sixapart.com/movabletype/ http://blogs.law.harvard.edu/tech/rss 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? http://nysbar.com/blogs/barjournal/2010/02/february_2010_poll_question.html http://nysbar.com/blogs/barjournal/2010/02/february_2010_poll_question.html Tue, 23 Feb 2010 10:32:17 -0500 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]]> http://nysbar.com/blogs/barjournal/2010/02/burden_of_proof_january_2010.html http://nysbar.com/blogs/barjournal/2010/02/burden_of_proof_january_2010.html Fri, 05 Feb 2010 09:37:00 -0500 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 http://nysbar.com/blogs/barjournal/2010/02/letter_to_the_editor_re_the_le.html http://nysbar.com/blogs/barjournal/2010/02/letter_to_the_editor_re_the_le.html Letters to the Editor Thu, 04 Feb 2010 16:28:25 -0500 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? http://nysbar.com/blogs/barjournal/2010/01/january2010pollquestion.html http://nysbar.com/blogs/barjournal/2010/01/january2010pollquestion.html Journal Polls Wed, 13 Jan 2010 15:08:11 -0500 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]]> http://nysbar.com/blogs/barjournal/2010/01/did_the_odds_change.html http://nysbar.com/blogs/barjournal/2010/01/did_the_odds_change.html Letter From the Editor Wed, 06 Jan 2010 13:36:33 -0500 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? http://nysbar.com/blogs/barjournal/2009/11/novemberdecember_poll_question_1.html http://nysbar.com/blogs/barjournal/2009/11/novemberdecember_poll_question_1.html Fri, 20 Nov 2009 12:47:19 -0500 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? http://nysbar.com/blogs/barjournal/2009/10/octoberpollquestion.html http://nysbar.com/blogs/barjournal/2009/10/octoberpollquestion.html Tue, 06 Oct 2009 09:57:01 -0500 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? http://nysbar.com/blogs/barjournal/2009/08/september_2009_poll_question.html http://nysbar.com/blogs/barjournal/2009/08/september_2009_poll_question.html Journal Polls Tue, 18 Aug 2009 16:27:03 -0500 Paul Bennett Marrow Chappaqua, NY

---

(The writer is a member of the Commercial Roster of the AAA and is a Fellow, Charter Institute of Arbitrators, London, England as well as a frequent contributor to the Journal on matters involving arbitration in New York) ]]> http://nysbar.com/blogs/barjournal/2009/07/letter_to_the_editor_costs_of.html http://nysbar.com/blogs/barjournal/2009/07/letter_to_the_editor_costs_of.html Letters to the Editor Wed, 22 Jul 2009 09:33:42 -0500 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? http://nysbar.com/blogs/barjournal/2009/06/julyaugust_poll_question.html http://nysbar.com/blogs/barjournal/2009/06/julyaugust_poll_question.html Journal Polls Tue, 30 Jun 2009 16:07:48 -0500 To the Editor: I always come away from one of David Horowitz's "Burden of Proof" columns feeling that I have learned something practical. However, in his "It's the Note of Issue, Stupid" column (May 2000), he has come up short. It seems to me that Mr. Horowitz has not gotten to the root of the problem, which is that in trying to make sense of the interplay between the rules and cases governing Note of Issue practice and the workings of the DCM system, he accepts the fact that the procedural tail (DCM) should be wagging the substantive (Note of Issue) dog. Mr. Horowitz also does not acknowledge that it is not just lawyer's who are gaming the system, but judges as well. Since judges are "graded" by how well they adhere to DCM, they, too, have an interest in bending the system to make themselves look good by making sure the Note of Issue is filed on DCM's version of "on time" and allowing discovery to be completed while the case is on the ready trial calendar. One by-product of this is that we return to the bad old days of summary judgment motions being made on the eve of trial and making it virtually impossible to appeal from a denial of summary judgment because decisions come down a month or less before trial. One solution would be to set longer DCM periods -- who chose the 8-12-15 month periods and and why is a mystery, but they do not seem realistic. This solution might alleviate the problem somewhat, but would not solve it since lawyers notoriously wait until the last minute to do everything. A better and more rational solution would be to return to the firm rule that no case goes on the trial calendar until all discovery -- including expert disclosure -- is complete. Period. No exceptions. DCM guidelines could still be used, but if discovery is not completed by the DCM deadline, the assigned judge could hold a hearing to determine which party was at fault. If no party was at fault -- for example if there was a stay caused by death or bankruptcy or if plaintiff had recent surgery or another accident -- then a new discovery deadline would be set. If one party or the other was at fault then sanctions, monetary or preclusion, would be imposed. This would undoubtedly cause some shock and befuddlement among practitioners accustomed to not taking deadlines seriously and of counting on judges to play along with them in bending the rules beyond the breaking point. But if we are serious about setting up a system that works, then we should develop a system that works with firm and clear rules that are firmly and clearly enforced. Otherwise, we are just spinning our wheels. Keep up the good work, David. Harry Steinberg Lester Schwab Katz & Dwyer, LLP New York, NY http://nysbar.com/blogs/barjournal/2009/06/letter_to_the_editor_re_horowi.html http://nysbar.com/blogs/barjournal/2009/06/letter_to_the_editor_re_horowi.html Letters to the Editor Tue, 16 Jun 2009 11:29:37 -0500 The Code is dead. Long live the Rules! Are you happy about the switch to the Model Rules? How will it affect your practice? http://nysbar.com/blogs/barjournal/2009/06/june_poll_question.html http://nysbar.com/blogs/barjournal/2009/06/june_poll_question.html Thu, 04 Jun 2009 12:33:37 -0500 Do you Twitter? Are you LinkedIn? Do you use Plaxo or Facebook or any other such online tools for professional networking? Let us know what’s good about them, or bad. http://nysbar.com/blogs/barjournal/2009/04/may_2009_poll_question.html http://nysbar.com/blogs/barjournal/2009/04/may_2009_poll_question.html Journal Polls Thu, 16 Apr 2009 15:48:26 -0500 Questions – and suspicions – are sometimes raised by the losing side in an election. Such issues are especially fraught if the race was for a judgeship. While the blatant quid pro quo demands recounted in the lead article no longer exist (at least in New York), what can we do to help ensure that the judges we elect will objectively dispense justice? http://nysbar.com/blogs/barjournal/2009/03/marchapril_2009_poll_question.html http://nysbar.com/blogs/barjournal/2009/03/marchapril_2009_poll_question.html Journal Polls Journal Polls Fri, 13 Mar 2009 13:28:37 -0500 Grant v. Rattoballi. Here is a link to the article: Horowitz, Burden of Proof, NYSBA Journal, Sept. 2008. ]]> http://nysbar.com/blogs/barjournal/2009/02/burden_of_proof.html http://nysbar.com/blogs/barjournal/2009/02/burden_of_proof.html Letter From the Editor Wed, 25 Feb 2009 09:31:07 -0500