Friday, April 25, 2014

NYS Trial Academy proposes language for retainer agreements to reflect new rule from the Appellate Division (see prior post)

https://www.trialacademy.org/temp/ts_9AA547DE-BDB9-505C-1E4F331A511D92B69AA548A9-BDB9-505C-15D46DB33612DB32/2014%20Academy%20Insert%20to%20Retainers%20Final%20Version.pdf

Monday, April 21, 2014

ABL cited by SCOTUSBLOG in its "Petition of the Day"

        ABL went last week for the cherry blossoms, and hopes to return to appear before the USSC.  http://www.scotusblog.com/2014/04/petition-of-the-day-587/

NWS">http://sct.narf.org/documents/nwcvidaho/petition.pdf">NWS v. State of Idaho, (USSC 2014)

Thursday, April 17, 2014

Appellate Division amends rule concerning contingency fee arrangements

http://www.nycourts.gov/courts/ad4/Clerk/AD4-Amended-Rules.pdf

Thank you to Mike Ross, who presented to the NYS Academy of Trial Lawyers on this topic.  The old rule permitted 1/3 of the net recovery, whereas the new rule permits either (1) 1/3 of net recovery (i.e., fee calculated & deducted after costs are paid) IF client pays disbursements as they become due (or uses evergreen account) or (2) 1/3 of gross recovery (i.e., fee calculated & deducted before costs are paid).  This rule does not apply to medical malpractice actions.  It is important to revise retainer agreements to explain this choice in clear language. 

Friday, December 13, 2013

new subpoena rules in federal court

The ABA published a summary of the amendments to Rule 45.  http://www.americanbar.org/newsletter/publications/youraba/201212article10.html

Some of the more interesting changes:

Issuing court is the court in which the case is pending (no longer the court in which the recipient is located).  -- 45(a)(2)

Nationwide service permitted -- 45(b)(2)

Reminder that other parties must be served BEFORE the subpoena is served on the recipient -- 45(a)(4)

Thursday, October 31, 2013

Are you a lying, cheating, lazy jerk? Maybe your'e just a morning person . . .

http://www.nbcnews.com/health/afternoons-turn-us-lying-cheating-lazy-jerks-8C11505058

Monday, October 28, 2013

Witness reliability (or not)

Here is an interesting presentation by Dr. Elizabeth Loftus

http://www.huffingtonpost.com/tedtalks/mystery-of-memory_b_4159290.html?utm_hp_ref=tedweekends&ir=TED%20Weekends+&icid=maing-grid7%7Cmain5%7Cdl8%7Csec1_lnk3%26pLid%3D396892

Friday, August 23, 2013

Chief Justice Roberts to speak at the Jackson Center

Chief Justice John G. Roberts spoke at the Jackson Center.

http://www.roberthjackson.org/the-center/events/chief-justice-john-g-roberts-2013-visit/

It was not the type of event that Jackson might have considered gaudy.

http://www.stjohns.edu/media/3/f59dc2bb435e4c1f87d9b9facb562b32.pdf?d=20110703

Monday, May 13, 2013

pro bono appeals program

http://www.nysba.org/Content/NavigationMenu31/ProBonoAppealsProgram/default.htm

Friday, March 15, 2013

CLE on Legal Ethics & Social Networking

On Thursday March 28, 2013, the Charles S. Desmond Inn of Court presented a CLE on "Legal Ethics & Social Networking" hosted by ABL. 

ABL will borrow generously from the work of fellow Skadden alumnus Nicole Hyland, whose research and comments are found at

http://www.legalethicsforum.com/blog/2013/01/prudent-social-media-practices-for-lawyers.html

Some of her links include (and lead to these interesting links on the subject)

http://www.netforlawyers.com/content/legal-ethics-opinions-lawyers-attorneys-social-media-investigative-background-research-0045

http://www.netforlawyers.com/content/social-networking-sites-are-valuable-tools-lawyers-beware-potential-ethical-pitfalls

http://www.netforlawyers.com/content/new-york-state-philadelphia-bar-social-media-ethics-opinion-0007

http://www.netforlawyers.com/page/cases-related-attorneys-use-social-networking-sites-background-and-investigative-research

Likewise, ABL also stumbled across this law review article from Touro Law Review (http://digitalcommons.tourolaw.edu/cgi/viewcontent.cgi?article=1138&context=lawreview). 

Here is a short video on the subject, including an interesting hypothetical at the end discussing the differences between an investigator watching a plaintiff versus an investigator "friending" a plaintiff on FB etc. (http://www.law.com/jsp/ca/PubArticleCA.jsp?id=1202585881253&Social_media_and_legal_ethics&slreturn=20130215091415)

See also ABL's 4/29/11 post below. 

NY ethics opinions:
http://www.socialmedialawupdate.com/2010/10/articles/ediscovery/legal-ethics-and-the-social-network/

NYSBA Opinion 899 (12/21/11):  lawyer may answer questions in "real time" chatgroup, but may only provide general answers (not individual advice).  If person makes specific request seeking to engage the attorney, then the attorney may provide contact informnation (phone, e-mail etc.) permitting the person to contact the attorney outside of the "real time" site.
http://www.nysba.org/Content/ContentFolders/EthicsOpinions/Opinions825present/EO_899.pdf

NYSBA Opinion 873 (6/9/11):  Offering a prize to join attorney's social networking sites is not prohibited as long as offer is not illegal conduct (which may be governed by other laws, such as those governing games of chance)
http://www.nysba.org/AM/Template.cfm?Section=Ethics_Opinions&template=/CM/ContentDisplay.cfm&ContentID=50963

NYSBA article (9/2012)
http://www.nysba.org/AM/Template.cfm?Section=Home&ContentID=54568&Template=/CM/ContentDisplay.cfm

Social Media liability risks
http://apps.americanbar.org/litigation/committees/professional/articles/summer2011-liability-social-media.html

presentation to Theodore Roosevelt Inn of Court (Nassau County), 11/2011
http://www.slideshare.net/ProfJonathan/social-media-and-legal-ethics

ABA article re pitfalls
http://www.abajournal.com/magazine/article/seduced_for_lawyers_the_appeal_of_social_media_is_obvious_dangerous

Thursday, March 14, 2013

New firm policy


"New firm policy, listen up! Anybody who sues this firm or me personally, we all drop whatever cases we are working on. We devote all of our intellectual and creative efforts to ruining that person's life. Are we clear? I don't want to stop short with just getting even. Retribution is not strong enough. Ruin, that is the goal. Irreversible, irreputable, irrational ruin! New firm policy"

Richard Fish, Ally McBeal

Monday, February 11, 2013

NY's Uniform Notice of Claim Act

In December, Governor Cuomo signed the Uniform Notice of Claim Act, which was not subject to much (if any) debate in the Legislature.  http://open.nysenate.gov/legislation/bill/S7641-2011

This law, among other things:

Adds CPLR 217-a:  making statute of limitations 1 year and 90 days for "every action for damages or injuries to real or personal property, or for the destruction thereof, or for personal injuries or wrongful death, against any political subdivision of the state . . . " 

Adds General Municipal Law sections 50-e(3)(f) and 53:  which permits claimants to either serve the NOC on the public entity (as is the case now) or to serve the NY Secretary of State, who may charge a fee of up to $250 and who will transfer the NOC to the named entities within ten days. 

Media accounts state the the sponsors of the bill signed by the Governor were seeking to "demystify" the NOC process to avoid meritorious claims being dismissed based on "technicalities."  It is not clear, however, that this law accomplishes that.  Any "technicalities" in a NOC that will result in dismissal will continue to remain fatal because Section 53(1) notes in relevant part that "[a]ll the requirements relating to the form, content, time limitations, exceptions, extensions, and any other procedural requirements imposed [under 50-e] . . . shall correspondingly apply to a notice of claim served upon the secretary of state as permitted by this section."

Moreover, if a claimant names the wrong entity (i.e., the Port Authority versus the City of New York), then serving the wrong entity via the NYSOS will not do anything to cure the problem. 

The NYSOS is allowed to charge up to $250 per NOC (and to split it with the named entities IF they have provided the NYSOS with "current and timely statutory designation" for service).  It would seem likely that parties serving a NOC will continue to do so in the normal course to save the fee, especially because many NOC's never ripen into a suit -- and because service via the NYSOS does not appear to do anything to "demystify" the NOC process.  Rather, it adds, at claimant's option, another layer of bureaucracy that delays notice to the municipality -- thus undermining the purpose of the NOC statutes (i.e., giving public entities timely notice of a claim in order to investigate the claim).  The NOC process becomes less efficient while giving claimants little, if any, additional benefit.

Despite its name, the Act does not appear to make the NOC process any more uniform than it already is.  http://explodingdog.com/title/mrsadab.html

http://explodingdog.com/title/menlive.html

Friday, February 08, 2013

Call me maybe

Prof. Jenny Rivera is on her way to being confirmed, but Cuomo has another seat to fill . . .  ABL is ready to serve (and ABL's law review articles are not full of social science gobbleygook)

http://www.nydailynews.com/opinion/judge-rivera-barely-article-1.1256281

Speaking of gobbleygook, ABL will be presenting a CLE to the UB GOLD group in March at the Buffalo Club.  The topic will be "recent developments in governmental immunity" as well as the recently enacted Uniform Notice of Claim Act -- which was passed without much deliberation or fanfare.  ABL thanks Kim Georger, who apparently had no one better to ask. :)

Wednesday, January 23, 2013

event data recorders (i.e. black boxes)

Need a list of cars so equipped?

http://www.boschdiagnostics.com/dsoftware/CDR_v10.0_Vehicle_Coverage_List_R1_0_0.pdf

Friday, December 14, 2012

Three former County Attorneys walked into a bar . . .


Actually nine did, but who is counting.  The 2d annual holiday dinner for Erie County Attorneys past and present was held at the Buffalo Club. 

Pictured from left to right are Laurence K. Rubin, Hon. Eugene F. Pigot, Jr. Jeremy A. Colby, Michael A. Siragusa, Hon. Patrick H. NeMoyer, Cheryl A. Green, Kenneth A. Schoetz, Fred Wolfe, and James L. Magavern.

Friday, November 16, 2012

Olma v. Collins -- dismissed by the 2d Circuit

The 2d Circuit agreed with ABL and dismissed claims against the former County Executive and three county employees based on absolute legislative immunity.

http://scholar.google.com/scholar_case?case=9682369783426026449&hl=en&as_sdt=2&as_vis=1&oi=scholarr

http://clients.criticalimpact.com/newsletter/newslettershow1.cfm?&id=1450


Wednesday, June 13, 2012

Another reason for ABL to stay on his diet

Arby's Urinal Burns Man's Genitals

Thursday, May 24, 2012

Title VII retaliation must relate to EEOC charge

In Townsend v. Benjamin Enterprises, Inc., the 2d Circuit addressed an issue of first impression -- whether Title VII's "participation clause covers internal [i..e., employer] investigations not associated with a formal EEOC charge."  The court answered the question in the negtive, holding that Title VII's participation clause only extends to a formal EEOC investigation; "it does not include participating in an employer's internal, in-house investigation, conducted apart from a formal charge with the EEOC."

http://www.ca2.uscourts.gov/decisions/isysquery/855b7c0d-e303-49c2-a5f6-399603d29346/1/doc/09-0197_complete_opn.pdf

Wednesday, March 28, 2012

ABL saw Robert Bennett @ fed courthouse today

Rehnquist, Jackson, and letters stolen from Library of Congress

“I think that Plessy v. Ferguson was right and should be reaffirmed.”

In December 1952, Supreme Court law clerk William H. Rehnquist wrote that privately to his boss, Justice Robert H. Jackson.  In December 1971, this Rehnquist memorandum, defending the constitutionality of racial segregation under Plessy’s “separate but equal” doctrine, was discovered.  Rehnquist’s own Supreme Court confirmation then hung in the balance.  He claimed that the memorandum reflected Jackson's views, not Rehnquist's.  He was confirmed, but his explanation triggered charges that he had lied and smeared the memory of one of the Court's most revered justices.

Professor Brad Snyder (University of Wisconsin Law School) and I have just published an essay in the Boston College Law Review that pertains to this subject.

Our essay, “Rehnquist's Missing Letter:  A Former Law Clerk's 1955 Thoughts on Justice Jackson and Brown,” analyzes a newly discovered document, a letter that Rehnquist wrote to Justice Felix Frankfurter in 1955, criticizing Jackson.  This 1955 Rehnquist letter reveals what he thought about Jackson shortly after the Supreme Court declared in Brown v. Board of Education that school segregation was unconstitutional and, just months later, Jackson’s death.  We explain that this 1955 Rehnquist letter was not known during his Supreme Court confirmation hearings in 1971 and 1986, and that it is now missing and may have been stolen from Justice Frankfurter's Papers in the Library of Congress.

We argue that Rehnquist's 1955 letter represents his disappointment with Brown and the beginning of his outspoken criticism of the Warren Court.  We contend that the letter says less about how Rehnquist felt about Jackson and more about Rehnquist's disappointment over his Justice's role in Brown, the most important Supreme Court decision of the 20th century.

Some links—

For the Boston College Law Review, click here.

For Adam Liptak’s New York Times story about our essay and these issues, click here.

For a filmed excerpt from an August 2010 speech in which attorney E. Barrett Prettyman, Jr., explained the process by which Justice Jackson hired him in 1953 to be his solo law clerk, succeeding Rehnquist and his co-clerk, click here.

Thank you for your interest, and please share this with others.
Best wishes,
John

Professor John Q. Barrett
St. John’s University School of Law
Elizabeth S. Lenna Fellow
Robert H. Jackson Center, Inc., Jamestown, NY

Tuesday, December 20, 2011

ABL and former County Attorneys -- Christmas celebration

ABL met with former Erie County Attorneys for a holiday celebration.  Pictured from right to left are:  Hon. Eugene F. Pigott, Jr., Larry Rubin, Fred Wolf, Ken Schoetz, Cheryl Green, Jim Magavern, Jeremy Colby, Hon. Patrick H. NeMoyer, and Hon. William Straub.

Friday, November 11, 2011

federal courthouse should be named after Justice Robert Jackson

ABL will be returning to private practice by popular demand

to borrow Judge Elfvin's wit (I do not think he will mind). The reference is noted in the BizFirst article by Matt Chandler.

Friday, April 29, 2011

Metadata Ethics Opinions

What's New for 2011 on Ethics? NYSBA CLE

Need help getting into the cloud or going paperless? Call Eric Posa @ DocuSyst (http://www.docusyst.com/).

NYSBA Ethics Opinions (clieck the title link above).

Saturday, April 23, 2011

ABL is mad as hell at federal spending

Tuesday, February 15, 2011

Ice Ice baby . . . in the new federal courthouse?

Sunday, February 13, 2011

Happy Birthday Justice Robert Jackson

Courtesy of Prof. John Q. Barrett of St. John's:

On February 13, 1952, Justice Robert H. Jackson celebrated his 60th birthday. Although the Supreme Court was in recess that week, Jackson and other justices were working in the building. Late that Wednesday afternoon, they were invited to Jackson’s chambers (today Justice Clarence Thomas’s chambers) for a small celebration that included a birthday cake. Chief Justice Fred Vinson and Associate Justices Felix Frankfurter, Harold Burton, Tom Clark and Sherman Minton attended, along with Jackson’s secretary Elsie Douglas, his law clerks and other Court employees.

Justice Burton, a scrupulous diarist, later made this little entry about the occasion:

Late in PM Justice Jackson had a birthday party in his chambers – the Chief Justice, + Justices Frankfurter, Clark + Minton + I attended – also his law clerks his law clerk C. George Niebank Jr + the other.

Niebank’s name was uncommon, but he had been clerking for Jackson for over a year and Burton clearly had gotten to know him. “The other,” apparently Jackson’s second law clerk, had joined the Jackson staff only a few weeks earlier following his December 1951 graduation from law school. His name, William Rehnquist, also was not common. I am sure that Burton in time came to know both the name and the young man. Rehnquist served as a Jackson law clerk through early June 1953 and then went into private law practice in Arizona.

Wednesday, February 02, 2011

e-filing in NYS court

Online Demonstration Video of New
E-Filing System Now Available

A demonstration of the new E-Filing System of the New York State Courts (NYSCEF) is now available online at http://www.nycourts.gov/whatsnew/. The demo will allow attorneys to get a password and learn the benefits of e-filing and serving documents through NYSCEF. Free training sessions are also available through the NYSCEF Resource Center, for which attendees can obtain CLE Credits. For more information, contact them at 646-386-3033 or EFile@nycourts.gov.

Sunday, January 23, 2011

Judge Pigott to address Desmond Inn of Court

Judge Pigott spoke to the Desmond Inn of Court today in the Ceremonial Courtroom. It was well attended and, as always, he entertained and provided insight concerning practice before the Court of Appeals.

Next month, on March 16, U.S. Attorney William Hochul will address the Inn.

Thursday, January 13, 2011

Facebook authorizations

In ROMANO v. STEELCASE, INC., (N.Y. Sup. 2010) Supreme Court in Suffolk County (Justice Spinner) engaged in a thorough analysis of whether or not defense counsel is entitled to seek an authorization for social networking sites such as Facebook and MySpace. The court held that a plaintiff in a personal injury action who is claiming physical limitations and loss of enjoyment are required to provide consents that authorize defense counsel to review plaintiff's Facebook/MySpace pages. Justice Spinner examined federal and Canadian case law because "there is no New York case law directly addressing the issues raised by this application, there are instructive cases from other jurisdictions." Justice Spinner also found that a plaintiff "has no legitimate reasonable expectation of privacy" in their online postings.

A month later, the Fourth Department decided McCANN v. HARLEYSVILLE INS. CO. of NY (2010 WL 4540599 (4th Dep't 2010), which held that it was error to grant a protective order prohibiting defendant from seeking disclosure of plaintiff's Facebook account. Although the court also affirmed the lower court's decision denying defendant's motion to compel, that decision was based on defendant's failure to establish the necessary factual predicate.

Tuesday, November 16, 2010

more unfunded mandates

Wednesday, October 20, 2010

Thank you Mr. Chief Justice, may I have another!


Last night, John G. Roberts, Jr. (USSC CJ) was the Frank J. Raichle Lecturer. "A Conversation with the Chief Justice" was a conversation (thus appropriately titled) between the Chief Justice and his former partner, Joseph M. Hassett, who asked questions presented by Canisius College students, faculty, alumni . . . and even Chief Judge Skretny. It was an unparalleled evening for the WNY legal community and Buffalo's favorite son.

JGR was entertaining and informative. He deftly handled some not-so-deftly crafted questions (ABL wanted to know what JGR's favorite sit-com is and whether he mows his lawn). JGR also offered other bits of wisdom, such as, you should always eat a donut offered by a Court of Appeals judge. He also recollected that, while clerking for then Justice Rehnquist (6 years pre-CJ for WHR), assisted in writing an article on the duties of the Chief Justice, a position that both men would later hold). Generous references to Justice Robert H. Jackson (Jamestown's favorite son).

ABL almost hit for the cycle, shaking hands with judges on each level of the federal judiciary and two of the three levels of the NY State Court system.

Thursday, October 14, 2010

2d Cir. cites Youtube



Here is a link to the 2d Circuit's decision in Dickerson v. Napolitano, 604 F.3d 732 n.1 (2d Cir. 2010), which cites Youtube to explain the cinematic reference that begat Operation Stinking Badges.

Friday, August 13, 2010

Desmond & Jackson


Officers of the Charles S. Desmond (Buffalo) and Robert H. Jackson (Jamestown) Inns of Court met at the Robert H. Jackson Center. ABL and Greg Peterson, Judge Marshall, Judge Walker, and Arthur Bailey are pictured standing around the chair used by Justice Jackson at the USSC.
The Inns are meeting together on October 16, 2010 in Jamestown in conjunction with a play at the Jackson Center on the career of Clarence Darrow. Members of the bench and var who are interested in joining the Inn should contact ABL.

Friday, July 16, 2010

Caveat Emptor

In AIG Europe, S.A. v. MIH Scrap Metals Intern., LLC, 2010 WL 2720593 (W.D.N.Y.,2010), Judge Arcara decided a personal jurisdiction motion in an interesting case involving a multi-million order of copper from Tanzania, that was supposed to be checked by a agent from London when it was loaded on a ship -- and which turned out to be crates full of rocks and dirt. ABL also hears that when the insurer sent an investigator to Africa to snoop around, that he was promptly greeted by armed gunmen who politely asked him to stop asking questions and to leave.

Start saving your pre 1981 pennies -- which are worth more than a crate full of rocks and dirt.

Saturday, July 03, 2010

need a lawyer in Buffalo? Rochester? Syracuse?

or any venue in between? then call ABL! Consultations are free and I will seek to point you in the right direction if I am unable to assist.

Wednesday, June 30, 2010

Legal Marketing blog

Friday, June 25, 2010

WNY's history of earthquakes

Thursday, June 17, 2010

NY Times article on digital advertising

Facebook and internet advertising is better for the consumer because it gives them more information to evaluate attorneys than do commercials or the yellow pages (does anyone gets calls from the phone book anymore?).

[LAWTECH]
Cartoon is found in the linked article from the NY Times.

Wednesday, June 02, 2010

Litigation Holds -- resources

http://www.lawtechguru.com/files/ILTA-Legal_Hold_Best_Practices-Jeff_Beard.pdf (5 page white paper)

http://www.iltanet.org/WhitePaperPDFs/2009LitigationSupport.aspx (32 page white paper)

http://legalholds.typepad.com/legalholds/2010/05/all-lawyers-must-be-able-to-fashion-a-defensible-legal-hold.html

http://legalholds.typepad.com/legalholds/2009/06/white-paper-best-practices-for-legal-hold-processes.html