A Buffalo Lawyer
Random thoughts -- and helpful links and resources -- from a Buffalo lawyer who loves practicing law. My practice focuses on federal, municipal, and appellate litigation. My name is Jeremy A. Colby and I approve of this Blawg -- which does not represent the thoughts or views of my past, present or future: firm(s), clients, employers, schools, professors, educators, friends, and/or relatives (herein collectively defined as "Anyone Else"). See "Disclaimer" below.
Tuesday, August 12, 2014
Friday, April 25, 2014
NYS Trial Academy proposes language for retainer agreements to reflect new rule from the Appellate Division (see prior post)
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
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 . . .
Monday, October 28, 2013
Witness reliability (or not)
Here is an interesting presentation by Dr. Elizabeth Loftus
Friday, August 23, 2013
Chief Justice Roberts to speak at the Jackson Center
Chief Justice John G. Roberts spoke at the Jackson Center.
It was not the type of event that Jackson might have considered gaudy.
Monday, May 13, 2013
pro bono appeals program
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
Some of her links include (and lead to these interesting links on the subject)
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:
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.
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)
NYSBA article (9/2012)
Social Media liability risks
presentation to Theodore Roosevelt Inn of Court (Nassau County), 11/2011
ABA article re pitfalls
Thursday, March 14, 2013
New firm policy
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
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)
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?
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.
Wednesday, June 13, 2012
Another reason for ABL to stay on his diet
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."
Wednesday, March 28, 2012
Rehnquist, Jackson, and letters stolen from Library of Congress
“I think that Plessy v. Ferguson was right and should be reaffirmed.”
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
We argue that Rehnquist's 1955 letter represents his disappointment with Brown and the beginning of his outspoken criticism of the
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.
Elizabeth S. Lenna Fellow
Robert H. Jackson Center, Inc.,
Tuesday, December 20, 2011
ABL and former County Attorneys -- Christmas celebration
Friday, November 11, 2011
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
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
Tuesday, February 15, 2011
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
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
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
Friday, July 16, 2010
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
Friday, June 25, 2010
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?).