October 21, 2014

October 2014

Message from the Editors

Dear Young Lawyers Section Members:

Welcome to the latest edition of Electronically-In-Touch, the e-publication of the NYSBA Young Lawyers Section. The current issue includes messages from our section, a recap of our Fall Meeting held in Albany and information on upcoming events. Additionally, we have Section Liaison updates from Antitrust Law and Entertainment, Arts and Sports Law. We then have an article on conducting student suspension hearings in New York by Anthony J. Fasano. We conclude with Susan L. Shin's review of Business and Commercial Litigation in Federal Courts, a book edited by Robert L. Haig.

Electronically-In-Touch is a member driven publication and as such 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 by the 20th of each month to Kara Buonanno at kara.buonanno@gmail.com and Tyear Middleton at tymiddleton@gmail.com.

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

Kara Buonanno, Esq.
Editor-in-Chief, Electronically-In-Touch
kara.buonanno@gmail.com

Tyear Middleton
Managing Editior, Electronically-In-Touch
tymiddleton@gmail.com

Chair's Message

Welcome to the October edition of Electronically-in-Touch. With a touch of fall in the air, we see the end of 2014 already fast approaching. No need to panic, we're here for you. We just came off of a very successful Fall Meeting here in Albany, and are already setting up for our Annual Meeting programs in January in New York City (January 26-30, 2015). Not only are we going to have two full days of CLE at our Bridge The Gap Program, we're also doing a half-day program on Trial Advocacy that same week. A little learning may be dangerous, but we are all going to learn a lot in the New Year. Also, we are currently seeking nominations for the very prestigious Outstanding Young Lawyer Award, which is also awarded during Annual Meeting week. Nominate yourself! Nominate one of your colleagues! NYSBA Young Lawyers do great things, and we want to know about them. Look here for more information: http://www.nysba.org/oyl/

Sarah Gold
Gold Law Firm

Fall Meeting Recap

The Young Lawyers Section held its Fall Meeting on September 15 in Albany. The event began with a networking breakfast and was followed by three CLE courses covering traffic tickets, real estate closings and wills, and how to file trademark applications. The program was immediately followed by our Executive Committee meeting, which all attendees were welcome to attend.

Upcoming Events

YLS 10th District - 4th Annual Holiday Party in Mineola
by John P. Christopher and Terrence L. Tarver

On Thursday, December 4, 2014 from 6:00 to 9:00 PM, the Young Lawyers Section, 10th District, will be holding its Annual Holiday Party at Eleanore Rigby's in Mineola, New York, for the benefit of the Marine Toys for Tots Foundation. This year, the YLS is co-sponsoring the event with the NYSBA Real Property Law Section, 10th District, and the Nassau County Bar Association, Young Lawyer's Committee. There is no cost to attend this event and complimentary food and drinks will be provided. We do kindly ask that attendees bring an unwrapped toy to donate to the local chapter of the Toys for Tots Foundation.

Please email your R.S.V.P. to John P. Christopher at jchristopher@swcblaw.com by November 26, 2014, with the subject line "NYSBA / NCBA Holiday Party". We hope to see everyone there to help us celebrate the holidays and support a worthy cause!


YLS 3rd and 4th District Toys for Tots Holiday Event in Schenectady
by Teige P. Sheehan and Lauren Palmer

On December 4, 2014, the 3rd & 4th Judicial Districts of the NYSBA Young Lawyers Section, Real Property Law Section, and Torts, Insurance and Compensation Law Section, will co-sponsor an annual Toys for Tots Holiday Event. This year, the event will be held at Mexican Radio in Schenectady. The cost of attendance is an unwrapped toy, to be donated to the Toys for Tots Foundation. Come join us for free hors d'oeuvres, and a fun night of networking, all for a great cause. Cash bar will be available.


Bridging the Gap | January 2015
Thursday, January 29, 2015 and Friday, January 30, 2015 | 9:00 a.m. - 5:00 p.m.
New York Hilton Midtown | 1335 Avenue of the Americas | New York, NY

16.0 MCLE CREDITS!
Recent Graduates and Newly Admitted Attorneys: This program will satisfy your annual MCLE requirement and carries 7.0 credits in the areas of professional practice, 6.0 skills and 3.0 ethics credits.

This two-day program will cover different topics in various areas of practice including: Family Law, Criminal Law, Research Tips for Lawyers, Hot Topics in Intellectual Property, Electronic Discovery and Social Media, Introduction to Credit Agreements and more.

Sponsored by the Young Lawyers Section of the New York State Bar Association.


Save the Date - Trial Academy 2015

The Young Lawyers Section Sixth Annual Trial Academy
Sunday, March 29 - Thursday, April 2, 2015
Cornell Law School, Ithaca, NY

Mark your calendars now to attend the Sixth Annual Trial Academy, the NYSBA's only comprehensive trial training program. Sponsored by the Young Lawyers Section, this intensive 5-day trial techniques and advocacy program is geared toward young and new lawyers - teaching, advancing and improving the quality of their experience in the courtroom to benefit their careers and their client's interests.

It is the perfect opportunity to gain critically important trial experience outside of the courtroom. Participants will attend morning lectures on an aspect of a trial and spend the afternoons in small groups with their designated team leader demonstrating the day's trial skill from a previously provided fact pattern. One-on-one critiques will be provided by a rotating faculty made up of NYSBA leadership and leading litigators, advocates and judges from every region of New York.

Save the date and look for early bird registration materials in the coming months.

Antitrust Law Section Liaison Report

by Erica Weisgerber

Antitrust Section Upcoming programs:

Fall Antitrust Symposium
Date: November 21, 2014
Time: 8:30 a.m. - 11:00 a.m.
Location: Harvard Club, Cambridge Room
Speakers: Professor Kevin Murphy, Professor Kai-Uew Kühn, Jay Fastow, and Cynthia Richman

Topic: The panel will address the legal and economic implications of conditional pricing practices among firms in a supply chain and to compare those implications as they may arise in the U.S. and Europe. Conditional pricing will be construed broadly to include not only multi-product bundled discounts and single-product loyalty discounts but also exclusive dealing arrangements and economically coercive tying (as referred to in case law).

Committee Programs:

Horizontal Restraints Committee: regular committee meeting Wednesday Nov. 12, 2014, 8:30am at Labaton Sucharow (140 Broadway, New York, NY), topic TBA

Vertical Restraints Committee: regular committee meeting Tuesday Nov. 18, 2014, 8:30am, at Weil Gotshal (767 Fifth Avenue, New York, NY), topic TBA

Entertainment, Arts and Sports Law Section Liaison Report

by Kara Buonanno and Brette Meyers

The New York State Bar Association's Entertainment, Arts and Sports Law Section (EASL) is comprised of 28 committees covering virtually all areas of the field including: fine arts, literary works, motion pictures and the right of publicity. EASL hosts frequent, cutting-edge CLE programs and networking events, such as those described below. Membership is not required to attend.

Events Coverage

EASL's spring meeting was held in May and included the CLE programs, "Cutting Edge Case Developments in Entertainment Law" and "Protecting and Enforcing Publicity Rights in Social Media". In June, we sponsored the CLE, "Practicing Entertainment Law in New York: What you Need to Know". A pro bono clinic was also held at the New York Film Academy. The Membership Committee hosted networking socials this summer at a Brooklyn Cyclones game as well as at the Gotham Comedy Club in Manhattan.

In September, the Alternative Dispute Resolutions Committee, along with JAMS and Volunteer Lawyers for the Arts, presented a CLE and networking event on "Expanding the Use of ADR in the Media and Entertainment Industries."

Our next event is the Entertainment Business Law Seminar, an all-day MCLE program held at the CMJ Music Marathon on October 24th at New York University. Panel discussions will include litigation strategies, the role interns play in the industry and copyright legislation.

Please visit http://www.nysba.org/EASLHomePage/ for more information.


Education Law Regarding Student Suspensions

A Primer on Student Suspension Hearings in New York Public Schools

By: Anthony J. Fasano, Esq.


In New York, the Education Law provides that no student may be suspended from public school attendance in excess of five days without due process. To satisfy this due process requirement, school districts must conduct a student suspension hearing, also commonly referred to as a student disciplinary hearing or a § 3214 hearing, and reasonable notice of that hearing must be provided to the student and the student's parents or guardians. Although administrative at heart, these hearings often take on many elements of an actual trial and are adversarial in nature.

At these hearings, students and parents may be represented by an attorney or other advocate. The school district's attorney often attends on behalf of the school district to present the school district's case. These hearings are held before the superintendent of schools or a hearing officer designated by the superintendent or board of education. These administrative hearings provide an excellent opportunity for new lawyers to gain practical experience, both in representation and in adversarial proceedings.

The focus of this Article is on the hearing requirements for general education students. In order to suspend a student with a disability, different procedures are required and are out outside the scope of this Article.

Notification

Prior to the hearing itself, students and their parents are entitled to reasonable notice of the hearing. The Commissioner of Education has delineated between the form of the notice and the content of the notice. Both aspects are required in order to ensure that the reasonable notice element of due process is satisfied.

Parents and students are entitled to written notification of the charges against the student written in the dominant language of the parent. The written notification must be received, usually, three days prior to the hearing, although two days has been held sufficient where an oral warning preceded the written notice by several days (see e.g., Appeal of K.M., Decision No. 16,178 [2010]).

A school building principal has the authority to suspend a student up to five days with just an opportunity for an informal conference. Where deemed appropriate, the principal refers the matter to the superintendent for further disciplinary action. In practice, a student is typically suspended up to the five-day maximum and the hearing is scheduled toward the latter portion of the five-day term. Most often, the school district is cognizant of whether the student's misconduct warrants a suspension in excess of five days at the same time it imposes the initial five-day suspension; thus, the written notice of the hearing is received by the parents and student toward the very outset of the five-day suspension, satisfying the timing requirement of the written notice. Notably, school districts may cure an untimely notice by rescheduling the hearing to a new date and providing sufficient notice for that date. The school district, however, must readmit the student at the end of the five-day suspension until the hearing is convened.

In regard to the content requirement, due process requires that the student and the person in parental relation to the student be sufficiently apprised of the charges against the student so that an adequate defense can be prepared. As the Court of Appeals has stated, the charges "need only be 'sufficiently specific to advise the student and his counsel of the activities or incidents which have given rise to the proceeding and which will form the basis for the hearing' " (Bd. of Educ. of Monticello Cent. Sch. Dist. v. Commissioner of Educ., 91 NY2d 133, 139-40 [1997]). Simply stating that the student violated school policy in conclusory fashion or repeating elements of the New York Education Law are insufficient to meet this threshold. Further, the notice must identify the time, date, and place of the hearing, as well as the "right to be represented by counsel, to present evidence, and to confront and cross-examine witnesses" (id.).

Conduct of the Hearing

A student suspension hearing is divided into two portions: (1) the determination of guilt or innocence phase, and (2) the penalty phase. At the hearing, one of several people will preside over the hearing as the hearing officer: (1) the superintendent of schools, (2) a designee of the superintendent of schools, (3) the school district's attorney, or (4) an independent hearing officer (including attorneys with no affiliation with the school district). Where the hearing officer is one other than the superintendent, the hearing officer merely makes findings of fact and recommends a level of discipline to the superintendent. The superintendent is not bound by the report and the superintendent may accept all or any part of the hearing officer's findings.

The school district has the burden of proving the charges of misconduct by competent and substantial evidence. As with criminal matters, the student is presumed to be innocent until proven guilty. The student has the right but not the obligation to remain silent, and the student will waive that right if the student testifies on his/her own behalf.

Because of the administrative nature of these hearings, the formal rules of evidence do not apply. Hearsay is admissible in these proceedings and may constitute substantial evidence of the charges in and of itself. Further, evidence that has been excluded in a separate proceeding, e.g., a criminal case, may be introduced into evidence in a student suspension hearing. As a general rule, the introduction of written statements without presenting the author as a witness at the hearing deprives the student of the right to confront and cross-examine witnesses, and has been found to be grounds for overturning a disciplinary penalty.

The school district is not required to cooperate with a demand for discovery prior to the hearing, but must allow for an adjournment for the student to prepare an adequate defense in regard to newly presented evidence. As the student will remain suspended when an adjournment is requested by one on the student's behalf, there is often no rush on the school district's part to reschedule the hearing. In practice, when the student is represented by an attorney, providing reasonable discovery prior to the hearing will often help facilitate an amicable settlement agreement at the hearing.

As with the school district's case in chief, the student is permitted to put on his/her own defense at the hearing. This includes, but is not limited to, the introduction of physical evidence, live testimony, and testimony from the student, if chosen. Proper foundations for evidence and testimony should be laid, and proper questioning of the witnesses should be conducted. Although the technical rules of evidence do not apply, this does not mean that the hearing officer will simply allow every piece of evidence presented into the record. Moreover, following the rules of evidence and laying a proper foundation will only add to the reliability of the evidence and/or testimony that you are presenting. To further buttress the student's case, the hearing officer, upon request, may issue subpoenas for witnesses to testify at the hearing.

Once the student's case is finished, the hearing officer will make a determination as to whether the charges against the student are sustained. If the charges are not sustained, that will conclude the hearing. The charges against the student will be dismissed, the student will immediately be allowed to return to school, and the record of the student's discipline must be expunged. Alternatively, if the charges are sustained, the hearing proceeds into the penalty phase.

In the penalty phase, the student and parents will be given an opportunity to review the anecdotal records of the student. Once the review is complete, the records will be put into evidence for the hearing officer's use in determining the appropriate penalty. This phase of the hearing is the appropriate time for testimony not generally relevant to the guilt or innocence phase. For example, the parents of the student often testify to the student's character and how he/she has begun to make amends for the charged misconduct. This is also where students will bring in members of the community, e.g. pastor, coach, etc, who will testify favorably about the student.

After the hearing is concluded, the hearing officer (if not the superintendent) will make his/her recommendation to the superintendent of schools as to the facts and as to the appropriate penalty. The superintendent then must notify the parents and student of the final decision and penalty prior to the end of the student's five-day suspension. The student may not be suspended for more than five days unless a final decision has been rendered by the superintendent. Customarily, the superintendent makes his/her decision the same day or the following day as the hearing officer's recommendation.

Appeal Procedures

Generally, an appeal from a student suspension hearing must first be brought to the local board of education. The time to commence such an appeal varies from district to district, but is generally around thirty calendar days. The local board of education's policy regarding appeals should be reviewed prior to the actual hearing to ensure compliance with the applicable time period. Failure to properly comply with the local board of education's policy may warrant dismissal of your appeal based on procedural grounds and/or the failure to exhaust administrative remedies.

If the board of education upholds the superintendent's determination, the decision may then be appealed to the Commissioner of Education. The appeal must be brought within thirty days from the board of education's determination, or if the board of education does not hear appeals, then thirty days from the date of the superintendent's decision. These timelines are strictly construed by the Commissioner.

In addition to appealing the decision of the superintendent, the appeal should also seek the expungement of the student's records. Often, the Commissioner does not decide on the merits of an appeal until after the student has served the underlying suspension. This mandates that an appeal be dismissed as moot. However, where the petitioners to an appeal also seek expungement of the student's records, the Commissioner will analyze the validity of the underlying suspension.

On appeal, the "petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief" (Appeal of D.M., Decision No. 16,632 [2014]). With respect to the findings of facts by the hearing officer, the Commissioner will not substitute his judgment for that of the hearing officer unless there is clear and convincing evidence that the determination is contrary to the record. This is a high burden. The two most often reasons for sustaining an appeal is the failure to provide due process and imposing too severe a penalty. Minor mistakes that occurred during the process of the hearing rarely warrant overturning the decision of the superintendent.

This Article was written to provide a general outline of what can be expected at a student suspension hearing and what a new lawyer can expect at such a proceeding. This type of proceeding offers an excellent opportunity for new lawyers to become familiar with an adversarial proceeding early on in their careers. More information can be found about student suspension hearings and the applicable appeal requirements at the New York State Education Department's website at http://www.counsel.nysed.gov/appeals.

Book Review

Business and Commercial Litigation in Federal Courts (Thomas West, Third Edition), edited by Robert L. Haig

Reviewed by Susan L. Shin, Esq.

By the time I started practicing in 2001, all my legal research was done electronically. Yet I did not hesitate in agreeing to author a "book review" of Robert L. Haig's treatise, Business and Commercial Litigation in Federal Courts (Thomas West, Third Edition), having found its prior digital editions useful in the course of conducting electronic research on various topics over years of litigation practice. But then an enormous box arrived one afternoon, and I panicked a little, vaguely recognizing the strange contents to be a twelve-volume set of hard-cover books--with gold embossing--the kind we were half-heartedly taught to use in law school. How would I find the time to read these volumes in the next six months while keeping up with my caseload? To my surprise, however, I have reached for this treatise at least twice a week since it arrived: it has quickly become my time-saving, trusty advisor. And the sections I have found most useful are not the ones I would have ever thought to research on Lexis or Westlaw.

To be clear, this publication is far from a clunky academic treatise laying out the Federal Rules of Civil Procedure and referencing interpretive cases and authority. Rather, it is an incredibly practical compilation of the experiences and insights of 251 of the country's most distinguished practitioners and judges, who provide 130 chapters of step-by-step guidance, on not only procedure, substantive law and trial advocacy, but also on strategic and tactical considerations for both plaintiff and defense counsel. Despite its numerous and varied topics, and multiple authors, the compilation is stylistically and substantively cohesive and logically organized--an impressive achievement by a gifted editor.

First and foremost, the treatise is practical and user-friendly. Each chapter includes a section on scope and on in-depth strategy considerations and analyses, a detailed table of contents for easy reference, and extensive citations to authority and cross-references. Each chapter also includes practice aids and checklists, such as checklists for allegations, defenses, sources of proof and internal investigations, as well as essential, time-saving litigation forms and pattern jury instructions. A CD-ROM containing the checklists, forms and jury instructions is included with the hard-copy set for easy copying and customization.

Second, the treatise is refreshingly modern. It provides cutting-edge guidance on substantive issues that plague today's commercial litigator. For example, the treatise includes informative and instructive chapters on Internal Investigations; Crisis Management; Regulatory Litigation with the SEC; Consumer Protection; Licensing; Privacy and Security; Money Laundering; the Foreign Corrupt Practices Act; the False Claims Act; and Litigation Technology.

Even basic litigation topics such as pleadings, discovery, motion practice, and trials come alive with the varying views and perspectives from some of the most seasoned litigators and judges. In the last six months, many issues have arisen in my practice that led me to refer to the treatise again and again. For instance, strategic considerations in Chapter 10 (Comparison with Commercial Litigation in State Courts) and Chapter 11 (Removal) were particularly enlightening and helpful in deciding whether it made sense to remove a case from a state court judge in the New York Supreme Court, Queens County, who seemed unsympathetic to my adversary's case. For the same case, which was ultimately removed, Chapter 3 on the Enforceability of Forum Selection Clauses and related strategy considerations provided a useful perspective I had not previously considered. More recently, I relied on Chapters 13 and 15, which discuss Consolidation of Separate Actions and Coordination of Litigation in State and Federal Courts, and were useful in developing a powerful and efficient strategy to defend a client from seven separate actions filed in various state and federal courts that involved common questions of law and fact. For that same case, Chapter 8's (Responding to Complaints) discussion on the practical and strategic considerations of motions to dismiss, affirmative defenses and counterclaims gave me useful and insightful advice and perspective.

Third, the treatise provides clear, measured guidance on some of the most difficult and thorny issues faced by litigators. The chapters on discovery are particularly well-done. For instance, Chapter 23 provides practical instruction on every aspect of deposition procedure and conduct, including the myriad of challenges of preparing and defending witnesses under Fed. R. Civ. P. 30(b)(6), and the effective use of deposition testimony down the road at trial. Chapter 25, which discusses ESI Discovery, and is co-authored by the prominent trailblazer in the field of e-discovery, Judge Shira Scheindlin, includes commentary on the current doctrine, duties to preserve, claims of spoliation, and practical guidance and considerations, among other matters. Chapters 26 and 27, which discuss Interrogatories and Requests to Admit, provide refreshing insights on how to maximize the benefit of these potentially powerful discovery tools that too often are only an additional burden on the process, with little yield. Chapter 28 has an extensive and helpful discussion on expert discovery, including finding, selecting and managing experts, reports and depositions of experts, and pre-trial Daubert considerations.

Finally, I would be remiss in not praising the treatise's thoughtful and pragmatic attention to law practice issues that have little to do with federal procedure, substantive law or the courtroom. For example, Chapter 47 (Alternative Dispute Resolution), authored by the late Judge Harold Baer, provides a thorough review of the practice of mediation and arbitration. Likewise, Chapter 33 (Settlements) contains remarkably practical discussions on dealing with insurance carriers, conducting litigation risk assessments at the outset of the representation, timing of settlements, and techniques to achieving a favorable outcome outside the courtroom.

In this regard, this treatise further recognizes that a growing number of litigators practice in-house, hired by corporations to manage litigation, an increasingly common aspect of doing business. With this in mind, Chapter 58 is devoted entirely to Litigation Avoidance and Prevention, while Chapters 60 covers Techniques for Expediting and Streamlining Litigation. Also excellent are Chapters 62 and 63, Litigation Management by Law Firms, and Litigation Management by Corporations, respectively, which explore the realities of and approaches to budgeting and managing the ever-increasing costs of litigation.

These are just some of the highlights from my perspective. Litigators at all levels of experience will find this compilation invaluable in its readability, practicality and usefulness. For those who are still intimidated by the hefty physical volumes, the complete treatise also is available online through Westlaw. But from one practitioner to another, nothing replicates the experience of having the full twelve-volume set of wisdom, experience and authority at your literal fingertips. Buy the "book": the investment is worth every penny.


Susan L. Shin is a Partner in the New York office of Arnold & Porter LLP. She practices complex business litigation on behalf of financial institutions and corporate clients in litigated disputes in state and federal courts and arbitrations. Ms. Shin also defends institutions and individual clients in investigations and enforcement proceedings conducted by various state and federal government agencies. Ms. Shin serves on the Board of Directors of the Asian American Bar Association of New York.

The preceding book review was published in the Fall 2014 edition of the Asian American Bar Association of New York Advocate. For more details, please visit:
http://c.ymcdn.com/sites/www.aabany.org/resource/resmgr/AABANY_Advocate/Fall_2014_v7.pdf

Electronically-In-Touch is the monthly electronic news-publication of the NYSBA Young Lawyers Section (YLS). It is a member driven publication, encouraging YLS members to write articles, and as such we would 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 Kara Buonanno at kara.buonanno@gmail.com and Tyear Middleton at tymiddleton@gmail.com, no later than the 20th of the month.

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