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Newsletter November 2012

On the Calendar 2012-13 Meetings/CLE: Nov. 15 Program on Legal Malpractice Doors open at 11:30 a.m.; luncheon meeting at noon, SCBA members—$25; nonmembers—$30 Financial need scholarships available—contact [email protected] or 393-4115 

Inside this issue:

November 15, 2012—Water’s Edge Lighthouse, 2 Freeman’s Bridge Rd., Glenville  Honor colleagues on their military service 

Vote on the Assigned Counsel Plan



Gain CLE: LEGAL MALPACTICE—1.0 hour of credit Presented by Frank M. Putorti Jr.

Save the dates for these additional member luncheon meetings + CLE   President’s Message: Giving Thanks

2

Committee Tips: Your Client Is Always On the Stand

3

Ethics and Civility in Every Day Practice

4

Real Estate Committee Annual day-long Real Estate Practice CLE—May 15, 2013 at Glen Sanders Mansion, Scotia

Book Review: 8 Commercial Litigation in NYS Courts Member Meeting Proceedings



January 17, 2013 – Glen Sanders Mansion—CLE on free and low-cost legal research, presented by Tara Moffett April 18, 2013 – Water’s Edge Lighthouse—Extended CLE from the SCBA Family/ Matrimonial Law Committee June 20, 2013 – Glen Sanders Mansion—annual meeting

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Dues Are Due

Who’s Who?

Schenectady County Bar Association dues notices for the 2012-13 program year have been sent to members. Dues are now due.

See any familiar faces in this blast from the past? Share your answers with us at [email protected] schenectadycountybar. org. We’ll publish answers in the newsletter.

Thank you for your membership and participation. Need a copy or have a question? Contact us at: 518-3934115 or [email protected] schenectadycountybar.org.

Meanwhile, need a clue? See page 13 for the letter from the writer who sent this great photo to us.

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President’s Message:

Giving Thanks SCHENECTADY COUNTY BAR ASSOCIATION BOARD OF DIRECTORS Officers President Michael E. Basile Vice President Jenifer M. Wharton Treasurer Frank Tedeschi Secretary Barbara L. Guzman

Board Members Hon. Vito C. Caruso Hon. G. Douglas Griset Frederick W. Killeen Joseph L.. Litz Frank M. Putorti Jr. Veronica Reed Deborah A. Slezak Hon. Matthew Sypniewski Christina M. Tremante

Executive Director Beth Krueger

 P.O. Box 1728 Schenectady NY 12301 [email protected] schenectadycountybar.org 518-393-4115

As we approach the upcoming holiday season, I thought I would write an article wherein I give thanks for all the blessings bestowed upon me. I am sure no one has ever previously written a piece with such a focus. To avoid being stricken down during this holiday season, I am specifically excluding the Bible from the last comment. OK - I couldn't come up with a topic, and it was just easier to write in the moment and in a scattershot manner, which is also something I have never done before. (I should not say these things immediately after mentioning Bible and being stricken down!) I am thankful that I was never Senate majority leader and that I never had a stadium named after me. I am not commenting on anyone's performance in office. I am simply too modest to be comfortable with such notoriety and recognition. I am thankful that I can speak and write freely due to my lame-duck status. You might ask why I was not always a lame-duck, since I've never had to run for re-election. Let us not quibble during this time of year. I am thankful that this article qualifies as legal scholarship, making me a legal scholar at my ripe age. (Is this a great country or am I dreaming?) Unfortunately, e-mails do not officially qualify as legal scholarship. One former member recently made a point of calling me specifically to advise that he had relocated and that the e-mails could cease. I guess he is getting enough legal articles elsewhere now. I am thankful that I live and work in Schenectady County. At a recent seminar I attended, the attendees were asked to introduce themselves and list their places of residence and favorite places. After listening to a litany of residences and resort locales being recited respectively for each category, I announced that Schenectady was both my place of residence and favorite place. This drew some chuckles from the crowd (not as many as one might expect. Schenectady is coming back!). Funny, there was no laughter when several attendees subsequently listed Manhattan in response to both queries. I guess by that point, the attendees had felt guilty for laughing at my Schenectady response. I am thankful that the local presidency term is two years, long enough for people to forget how good the prior president was (or perhaps even who he was – NAW, we can’t forget Frank) and also a long enough term following mine for people to forget about my missteps in office. I am thankful that I have paid my dues to the Schenectady County Bar Association and gotten that off my “to do” list. To those of you who see this as a sneaky way to remind members to pay their dues, kindly see my second reason for giving thanks, listed above. I am thankful that the Schenectady County Board of Directors is comprised entirely of responsible, honest and hard-working people with a sense of obligation and with the power to reward presidents in an appropriate manner upon the completion of a president's term. I am thankful that I did not have to campaign for a second year in office. (Wait a minute—I never campaigned for the first year and still got elected. That might be how I got into this situation in the first place!)

(Continued on Page 13)

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November 2012

Around the Horn: Interesting Tidbits and News of Note from Our Committees Your Client Is Always on the Stand From Paul E. DeLorenzo, Chair Criminal and Civil Litigation Committee While we often spend not only hours but days and sometimes even weeks preparing our clients for the rigors of direct examination and trial, it is often overlooked that during the course of any trial, whether it be a bench or jury trial, that your client is always “testifying.” You may be asking yourself what exactly does this mean …? The simple explanation is that both the judge and the jury are always watching the litigants. Whether it be the party’s posture while sitting at the table or standing in the hallway; the plaintiff’s gait while walking to the witness box; the hostile nature of the interaction between the defendant and counsel; the party’s response to testimony that would impeach their credibility or otherwise hurt their case; or any other situation in which the judge or jury views your client, that client is always subject to scrutiny. The judge and jury will continue to watch and judge all of your client’s conduct during the course of the trial, both inside and outside of not only the courtroom but also the courthouse. Your goal in preparing your client must be not only to ensure they understand that they are subject to this constant scrutiny but that they also ensure that they are not coming across as insincere or unlikable during this time, as we are all aware that likability is an important factor when trying to convince a judge or jury to help your client. When your client comes across as unlikable, no matter whether it is while on the stand, seated at the table, in the hallway or at the diner having lunch, it is likely a judge or jury will not want to help them and render a verdict in their favor. By instructing your client to keep courtroom manners, likability and their case in general, in mind at all times you will only be helping the cause.

There is an oft-repeated anecdote which illustrates this point: A defendant was on trial for murder. There was very strong evidence indicating guilt, but no corpse had been found. In the defense’s closing statement, counsel, knowing that his client would most likely be convicted, decided to try a trick.

“The simple explanation is that both the judge and the jury are always watching the litigants.”

“Ladies and gentlemen of the jury, I have a surprise for you," the lawyer said as he looked at his watch. "In one minute, the alleged victim in this matter, who we all have presumed dead, is going to walk into this courtroom through that door!" For the next minute, defense counsel looked toward the courtroom door. The jurors, somewhat stunned, all looked and waited eagerly. But, as the minute passed, nothing happened. Finally, after the courtroom began to stir and the door never opened, defense counsel said, "I must apologize as I made up the previous statement, but you all did look on with anticipation. I therefore put it to you that there is reasonable doubt in this case as to whether anyone was killed and I insist that you return a verdict of not guilty." With that, the jury retired to deliberate, but after only a few minutes, they came back and pronounced a verdict of guilty. "But how?" the defense counsel exclaimed. "You must have had some doubt. I saw all of you stare at the door." "Oh, yes," the jury foreman replied. "We all looked - but your client didn’t!"

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Ethics and Civility in Every Day Practice Jack Clark of DuCharme, Clark & Sovern, LLP, presented the CLE at the September 13, 2012 member meeting. Following is his outline, reprinted with permission. A. Ethics of bailing on deadbeats

D. Ethics of file copying upon termination 1. 2.

Client entitled to return of original file and lawyer can retain a copy. What if client says—no copy for you! Rationale is lawyer keeps copy to defend self from later malpractice claim. Lawyer may properly demand a General Release in exchange for not keeping copy (seems like a better deal than keeping the copy) (NYSBA FOs #780 & 339)

RETAINER LANGUAGE: “We reserve the right to discontinue our representation of you if, at any time, you fail to promptly pay a bill when due. We also reserve the right to require an additional fee deposit if it appears that a great deal of legal work is going to be called for in an upcoming month.

Ethics Matters - Gaal – NYSBA L&E Journal Summer 2005

Mere nonpayment not enough

E. Ethics and that misdirected e-mail

Language of retainer not controlling OK to withdraw if no material adverse impact on client. OK to withdraw with material adverse impact on client when client deliberately disregards payment obligations. FACTORS: Litigation or not (if not – easy to bail) Timing (early in game – easier/ late in game harder) Rule 1.16(c) – New York Rules of Professional Conduct It’s easier when they cooperate … B. Bailing avoidance – progressive engagement 1. 2. 3.

Limited engagement Step 1– Lump sum for discrimination review - $1500-$2500. End of Representation Limited engagement Step 2 – Lump sum (could be hourly) for filing with EEOC/SDHR. - $1500$2500. End of Representation Litigation after right to sue – Contingent or hourly depending on how case shapes

C. Ethics of Facebook stalking 1. 2. 3.

PUBLIC SITES – OK TO BROWSE AND USE (NYSBA Committee on Professional Ethics – FO #843) STEALTH “FRIENDING” TO GAIN ACCESS Ethics violation in Pennsylvania for sure – probable violation in NY How about using existing “Friends” to gain access to adversary private site?

Ethics Matters by John Gaal – NYSBA L&E Journal Fall 2010

1. OLD VIEW – Read no further, advise sender of

2.

mistake, follow sender’s instructions including return or destruction of info. (ABA FO 92-368, NY County Opinion 2003-04). NEW RULE 4.4 – Requires only “notification” to sender. But following the old rule minimizes both risk of disqualification by recipient and preclusion order on the evidence obtained.

Ethics Matters - Gaal – NYSBA L&E Journal Summer 2009 When you sent it 1. FESS UP – If it went to adversary party, tell that party’s attorney. 2. Advise adversary attorney to return or destroy as you determine preferable to protect your client. Give adversary attorney a copy of prior slide. 3. Tell your client. Hope that the overall good you have done for the client outweighs this faux pas. Use of the “recall” feature in Outlook It doesn’t work F. Ethics and the crooked adverse party Dear Mr. Brickman: My client remains perturbed that your client embezzled $90,000 from the business and now refuses to return the funds. Please talk some sense into her or we will have no alternative but to turn this over to the district attorney. I hope to hear back from you in the near future. (Continued on Page 5)

November 2012

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(Continued from Page 4)

NY GUIDANCE CONFLICTING Improper – In Re Malone, 105 AD2d 455 (1984) “Testers” approved – Cartier v. Symbolix, Inc 386 F. Supp 2d 354 (SDNY 2005).

Both (1) Unethical and (2) Possible Independent CriminalWill OffenseExecution of Coercion. Checklist BUT - If Brickman brings it up first – OK to deal Reprinted with permission: Hon. Guy P. Tomlinson, Surrogate Judge, Ethics Matters Montgomery Countyby John Gaal – NYSBA L&E Journal Winter

SUIT CLAIMS RENTAL BIAS Attorney general contends black applicants, those with children, targets at apartments Casey Seiler State Editor Section: Main, Page: A1 Date: Wednesday, July 7, 2010

2003

Date: ______________ Day of Week: __________ Client Name: ______________________ G. Ethics and the surreptitious tape recordings Confidential pre-execution meeting with client.

Employee records her termination meeting or her co dirty jokes  -workers Sufficienttelling prior contact to prepare final draft of Last Will and And then there is: http://www.youtube.com/watch? Testament has already taken place v=GJOgdKmnblA 

ALBANY -- The attorney general's office claims in a lawsuit that the owner and rental agent of a Glenville apartment complex discriminated against African-American rental applicants, as well as applicants with children. Attorney General Andrew Cuomo's office said an undercover investigation conducted over several months last year showed that management at Shady Lane Apartments, a 444-unit complex, gave markedly different treatment to couples who shared similar characteristics except for race and familial status.

A. Parties present:

NY RULE – Lawyer may not make surreptitious tape  1. Client-Testator referred consent to as C/T) recordings even though(hereinafter NY is a one-party  2. Law Office Professional(s) state (NYSBA Opinion 328 – 1974). Lawyer can’t give  idea 3. Others: YES /the NOadversary (note: pre-execution meeting client to record but can tell client on day of will execution is intended to be confidential, if the law if asked. unable to so meet indicate circumstances) ABA Rule – Lawyer may make surreptitious tape reso long review as no false denial (ABA  cordings B. Confidential of proposed LastFormal Will and TesOpinion 01-422 2001) . Lawyer can advise client to tament including: make recordings.  Rule 1. Reading of will REAL – Lawyer can advise client to make re 2. Mena Explain provisions will 195 Misc. 2d 402 cordings. v. Key Food of Stores,  3. Ask if and establish that will is understood by C/T (2003)

(proceed only if completely understood) 4. Ask if C/T has any questions and answer all to Ethics Matters – Gaal – NYSBA L&E Journal – Summer 2003 satisfaction (do not proceed to 5 unless all questions have been H. Ethics andanswered) being a union attorney  5. Inquire if any changes in will are desired by C/T Who is the (if client? so, make changes and repeat 1- 4 above, proceed only if C/T answers “no”)Setting – Union LawRULE – Grievance/Arbitration 6. Ask ifONLY will is the C/T wants to be yerrepresents THEway UNION, notit the grievant. (proceed onlyonif Prof “yes”)Ethics FO 743-2001). (NYSBA Committee  7. Determine if C/T understands (s)he is making will SECTION 75 HEARINGS – Union Lawyer represents and disposition made by it Employee only since Union is not a party to the pro 8. Determine if C/T understands the plan and effect ceeding. of the will STILL caseof–nature, Grievant A &  CONFLICTS 9. Determine– ifSeniority C/T is aware extent,

Cuomo said his office had conducted more than 200 undercover tests of the kind performed at Shady Lane.



J.

Ethics and dodging the obnoxious company lawyer

Ethics and Civility – Jack Clark - September 2012

Ethics and Dodging the Obnoxious Company Lawyer

wins so B loses job. SAYS – Tell B to have his own lawyer.

Ethics Matters - Gaal – NYSBA L&E Journal Spring 2002 I.

Ethics and pretexting (it’s not texting or sexting) Your client’s job application was rejected by Big Box Co and client says it is because of his race but they said he wasn’t qualified. How about sending in some fictitious highly qualified minority candidates and a marginally qualified WASP to prove they are discriminating.

(Continued on Page 6)

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Dealing direct with the adjuster

1. 2. 3.

Defendant’s counsel is a dork; can we call the insurance adjuster to resolve the claim? Yes – It’s OK Can we directly contact witnesses who are employees of the company? Depends – Decision makers – No; Non Decision Makers - Yes Can we directly contact witnesses who are former employees of the company?- Yes

Minimize internal firm complaints Proper Leadership

Ethics and Civility – Jack Clark - September 2012

Minimize internal Firm complaints – Proper Leadership

Ethics Matters - Gaal – NYSBA L&E Journal Spring 2006 K. Ethics of copying the other party on communication to other party’s lawyer 1.

It’s unethical! (NY Rule of Professional Conduct 4.2). 2. What if the enemy client calls you direct? Still unethical – don’t continue the chat (ABA FO 95396) 3. What about adversary lawyer emailing you and copying her own client? Can you reply to all? Depends on nature of communication (adversarial or not? Reply to all invited? Use common sense). 4. The back door communication – Client sends copy of your letter to the adversary Ethics Matters - Gaal – NYSBA L&E Journal Winter 2009 NYS Bar Ass’n Journal – September 2012 – Ethics Forum L. Ethics of stealth lawyering Keeping your role secret via ghostwriting NO CLEAR NEW YORK RULE  Not a problem according to ABA (FO 07-446) or in AZ, ILL, Maine.  NYSBA FO #613 (1990) – OK to help but disclosure required of name of lawyer helping.  Bar of the City of New York - sufficient if pleading notes “prepared by counsel” (Op 87-2)  Likely rule – if attorney is charitable OK – if stealth is a tactic to retain sympathy for pro se litigant then not OK. (Apparent NJ rule – NJ Op #713) Ethics Matters - Gaal – NYSBA L&E Journal Fall 2008

M. Ethics and purloined documents When your client is the purloiner UH OH – (1) Great evidence for a winning claim or (2) preclusion order with civil and criminal liability for your client.  Was access legitimate. If it was, is there a confidentially restriction?  Was theft “protected activity” – balancing test applies (employer right to confidentiality vs. employee right? to preserve evidence of her claim). Employer usually wins this argument.  Was discovery of the material by employee “innocent” or part of an unlawful search of employer files? ONE POSSIBLE RESOLUTION Minimize the harm and preserve the right to use the documents Bates stamp a complete copy and return original and a Bates stamped copy to the employer while preparing document request for the numbered documents The Effect of Purloined Documents on Whistleblower Retaliation Cases, David J. Marshall and Alexis H Rickher, NELA Conference Presentation, June 26, 2009. (Continued on Page 7)

November 2012 (Continued from Page 6)

N. Ethics and sex with client “LAWYER'S PRACTICE SUSPENDED Court: Guilty of professional misconduct after sex with a client Carol DeMare, Staff Writer Section: Capital Region, Page: B5 Date: Saturday, February 5, 2011 ALBANY -- A former assistant public defender who was convicted of having sex with a client was suspended Thursday from the practice of law for one year. He was convicted of having sex in the spring of 2007 with a woman who at the time was facing drug charges following a raid on the Albany home she shared with a boyfriend. The woman testified (her attorney) told her he would work harder and prioritize her case if she engaged in sex with him.

Page 7 (j)(1) A lawyer shall not: (i) as a condition of entering into or continuing any professional representation by the lawyer or the lawyer’s firm, require or demand sexual relations with any person; (ii) employ coercion, intimidation or undue influence in entering into sexual relations incident to any professional representation by the lawyer or the lawyer’s firm. The safe harbors (2) Rule 1.8(j)(1) shall not apply to sexual relations between lawyers and their spouses or to ongoing consensual sexual relationships that predate the initiation of the client-lawyer relationship. (k) Where a lawyer in a firm has sexual relations with a client but does not participate in the representation of that client, the lawyers in the firm shall not be subject to discipline under this Rule solely because of the occurrence of such sexual relations. O. Ethics and billing—Time keeping Sung to Cyndi Lauper's "Time After Time” "Sometimes you call me up and beg me for free advice You’re stealing from me and wondering why I’m not nice My mind and my time are my merchandise Don’t make me say this twice "If you come to my office or call my phone, I'm billing time If you stop me at parties to whine and moan, I'm billing time You say you want the best but then you don’t pay the fee Motions cost money but you think they should be free You cry ‘Oh why is my bill so high’ Well let me clarify

“Sexual relations” denotes sexual intercourse or the touching of an intimate part of the lawyer or another person for the purpose of sexual arousal, sexual gratification or sexual abuse. Rule 1(u) – Terminology [12] A lawyer is prohibited from engaging in sexual relations with a client in domestic relations matters. In all other matters a lawyer’s sexual relations with a client are circumscribed by the provisions of Rule 1.8(j).

If you come to my office or call my phone, I'm billing time If you stop me at parties to whine and moan, I'm billing time If I think of you when I am all alone, I'm billing time If you're late for appointments, I will be waiting and billing time Billing Time Parody by the Bar & Grill Singers ©2000 Used with permission by The Bar & Grill Singers and Capco Productions, Ltd

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Book Review

Commercial Litigation in NYS Courts Commercial Litigation in NYS Courts – 3rd Edition Robert L. Haig, Editor-in-Chief New York County Lawyers’ Association West’s New York Practice Series Review by Peter V. Coffey This six-volume set with cross references for rules, statutes, case citations and index contained in a seventh paperbound volume seeks to, and in my opinion does, cover all aspects of commercial litigation from its history in New York through all aspects of litigation to discussions of specific areas. The initial publication coincided generally with the establishment of commercial parts in the New York State Supreme Court initially in New York County and thereafter expanded to other areas in the State. The commonality of timing is not serendipity – for in fact both the publication of Commercial Litigation in New York State Courts and the establishment of Commercial Parts involved the Editor-in-Chief of this publication, Robert Haig. He served as a Co-Chair with then Chief Administrative Judge E. Leo Milonas of a committee appointed by Judge Kaye to “develop a blueprint for the creation of a statewide Commercial Division in the State of New York Supreme Court.” Robert Haig was intimately involved in the development of the commercial courts in the State of New York. Accordingly it enhances the credibility of this publication knowing that it is significantly united with the actual commercial practice in the newly developed Commercial Division of the New York State Supreme Court. In the introductory chapter—Commercial Litigation in New York State Courts, the Hon. Jonathan Lippman describes New York’s preeminence as a center for commercial litigation. I particularly enjoyed the discussion of 18th Century New York commercial litigation and the highlighting of Alexander Hamilton’s position as a commercial litigator. I am a great fan of Alexander Hamilton (he did a lot of things better than fellow lawyer Thomas Jefferson including speaking French) and to some extent his national involvement masked his prominence in the New York Bar. Lippman describes the status of commercial litigation in New York, noting that at one point there was at least a perception that commercial litigators were abandoning New York State for Federal or Delaware courts or turning to arbitration. The New York State Bar Association identified the need to remedy the situation. Lippman sets forth the establishment of the Commercial Division in New York in response to that per-

ception or reality, if you will, and notes how it revolutionized the handling of commercial litigation in New York, enabling New York to maintain its preeminence as a center of commercial litigation. And so we have the above-mentioned development of the commercial court system in the State of New York and the development of this publication.

“It takes a great effort to achieve that level of completeness and this publication gets right into the nitty-gritty.“

All that being said, the question is: “What does the publication do for me?” A lot. I can count on a single hand those publications that I have used over the years that cover a topic with such thoroughness - a publication that you can go to and be reliably assured that almost every question you have from the most basic questions to the most complex questions will be addressed and answered. It takes a great effort to achieve that level of completeness and this publication gets right into the nitty-gritty. Volume 2 discusses in great detail fundamental topics such as jurisdiction; venue; investigating the case; the evaluation of case; comparison of commercial litigation in State Courts and Federal Court; third-party actions; joinder; consolidation; issue and claim preclusion. Volume 3 continues this fundamental development, addressing such issues as provisional remedies; parties; bills of particular; disclosure; the sealing of court records in commercial litigation; complete discussion in several chapters of discovery proceedings; the selection of experts and expert testimony; motion practice; summary judgment; practice before the Commercial Division. Volume 4 continues with, again, tremendous particularity including chapters on jury selection; motions in limine; trial and trial preliminaries; cross-examination; expert witnesses; graphics and demonstrative evidence; (Continued on Page 9)

November 2012 (Continued from Page 8)

and most importantly the issue of damages including compensatory damages and punitive damages. And what is most appealing - awarded attorneys’ fees. This theme is continued in Volume 4A in the exposition of additional aspects of commercial litigation including fees; sanctions; appeals; enforcement of judgments; litigation management and litigation technology; ethical issues in commercial cases including civility. Thereafter, the publication addresses specific areas of commercial litigation including contracts; insurance; sale of good warranties; bills and notes; secured transactions; agency; partnerships; products liability; health care litigation; broker dealer litigation; professional liability; misappropriation of intellectual property; white collar crime; construction; environmental and surrogate’s court practice. The point being that any lawyer involved in commercial litigation can turn to this publication and have just about any issue addressed or answer needed. It has been my intention not to get specific but one chapter did strike me as significant and expositive of the detail of this publication. That was the sections on paper records and document preservation. In this age of electronic communication, electronic discovery and electronic storage, this discussion is of enormous value. Some particular mention should be made of the authors — Judge Graffeo and Judge Smith on the Court of Appeals; George Bundy Smith, Stewart F. Hancock, Jr., retired judges of the Court of Appeals; and as mentioned, Jonathan Lippman; numerous justices serving on the New York State Supreme Court, both on the trial level and the appellate level, with many of them having actively participated in the Commercial Division such as John M. Curran; and just the “cream of the crop” of commercial litigators from around the State including the chairs or heads of various trial sections of the most prominent litigation firms in the City of New York. To my thinking most important is the input of these experienced, successful litigators in discussing such areas as trial strategy, discovery and similar areas. This review of course cannot be as detailed and thorough as the publication is in itself. However, a more particular discussion of one chapter gives exposition of the merit of all the chapters. Specifically a discussion of Chapter 5 – Case Evaluation illustrates the point. Again, we have the advice of a successful litigator – in this case Alan I. Raylesberg – in a topic that calls for the wisdom of someone who is a successful practical litigator - not an academic but a hands-on practitioner.

Page 9 Raylesberg discusses “how to evaluate a case at the outset from the plaintiff’s perspective and the defendant’s perspective”; the likelihood of dismissal by summary motion; evaluating the case for settlement; evaluating the case as it would be presented to a jury; and then with a chart, he discusses the “quantitative models for evaluating litigation risks and costs.” As is true of just about every section in the book, the end of the chapter contains practice aids, including a checklist of factors to be considered and specific questions to determine the answer. It also contains a sample form of a written case evaluation. My area of practice, of course, is real estate and real estate litigation so I would like to discuss the particularities of that section, specifically, Commercial Real Estate Litigation. The chapters contained in this section are written by practicing attorneys and the value of these chapters comes from the analysis of litigators who have been involved extensively in this area of litigation. Indicative of the practical analysis contained in this section is the initial advice that primary consideration be given to the contract itself - so true. All aspects of real estate contracts are discussed including formation issues, terminology, the necessary terms to a contract - the meaning of these necessary specific terms in a contract - statute of frauds and common issues for the purchaser and common issues for the seller. Finally, the issue of the recording of the contract is discussed. Interestingly, I was just involved in an e-mail discussion with lawyers across the State regarding the issue of recording the contract. This chapter also continues the concept of giving practical advice - consideration of the value of the real estate as opposed to the size of the deposit - if you win what are you going to get? Given changing economic times, is it more advisable simply to walk away from the deal and forfeit the deposit? In this regard there is a discussion of damages and what damages are available to each party. So often texts discuss all aspects of the law but never get to the issue of damages. When I went to law school the school discontinued the course on damages. That is ultimately what we are all talking about and this text does not have that failure. Further, practical advice (Continued on Page 12)

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Member Meeting Proceedings September 13, 2012 Water’s Edge Lighthouse, Glenville, New York 12:00 p.m. The meeting was called to order by President Michael Basile, with a sufficient number of members of the Association being then present to constitute a quorum. 1. Judiciary: President Basile recognized the Judges who were then present. 2. Minutes: The minutes from the last two membership meetings had been published and presented to the members. A motion to approve was made by Judge Slezak, seconded by Veronica Reed, and unanimously approved. 3. CLE Presenter: President Basile recognized Jack Clark, who would be speaking after the meeting about ethics. 4. Treasurer’s Report: Copies were on the tables for members to review. 5. Law Day: Sign-up lists were passed around, as well as Lawyers in the Classroom, for interested members. 6. Military members: Lists were also on the table regarding members’ military service so that we can recognize and thank those who have served. 7. Membership Directory: Interest was sought from the membership to adding a listing of practice areas to the directory if a sufficient numbers of members feel it would be useful.

Celebrating Half-Century of Service: Schenectady County Bar Association President Michael Basile, right, presents Richard Della Ratta with a plaque from the Association in honor of his 50 years in the practice of law. Also honored were George Camino, Ralph Nocera and Michael Palmiotto. announced that the Matrimonial and Family Law Committee would hold its next meeting on October 10th at the Gordon Tepper offices. c. Law Day next year will be on May 1, 2013 at Schenectady County Community College. 9. Old Business

8. New Business a. President Basile announced and honored the members who have been practicing for at least 50 years: George Camino (who is in Florida, and who we will send the plaque by mail); Ralph Nocera and Michael Palmiotto (who were unavailable to attend the meeting and would be sent their plaques); and Richard Della Ratta, who was present to accept and receive the plaque honoring his work. b. Committee Reports: Cory Dalmata announced that the Civil and Criminal Law Committee’s CLE at the Rail was successful. Andrew Healey announced and welcomed a new member, Jorge Rodriguez. Deborah Slezak announced the Elder Law Committee’s first meeting would be on September 19th at 8:30 a.m. at the Cioffi offices, and a CLE would be held in the spring. Eric Tepper

a. The Technology Committee is still looking for new members. b. We will be honoring our military veterans at the next meeting in November. c. The Association has made a donation of $1,000.00 to Schenectady County Community College to fund a scholarship for a Schenectady resident, with a preference for someone in the paralegal program; if no eligible resident is in that program, the alternative preference is for a resident enrolled in the Business Administration or Criminal Justice program. Next Meeting: The next Membership Meeting is scheduled for November 15, 2012 at 12:00 p.m. at the Water’s Edge Lighthouse in Glenville.

November 2012

Page 11

LEGAL PROCESS SERVERS Willach Technical Services, Inc. 31 Wicken Square Albany, New York 12205 Serving New York’s Capital Region for over 23 years

Joan M. Lachanski William B. Lachanski, Jr.

(518) 452-7894

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… Commercial Litigation is given noting that when representing a purchaser consideration must be given to the filing of a notice of pendency. (I am particularly happy it is called a “notice of pendency” and not a “lis pendens” - these things are not “lis pendens.”) Following the extensive discussion of real estate contracts, there are chapters on mechanic’s liens, tax liens, title insurance claims, actions to quit title, co-tenancies and partition, easements, adverse possession, boundary disputes and encroachments. Again, a comprehensive review of real estate litigation. To be somewhat picky, it is noted that the text states that in the event of an anticipatory breach a purchaser seeking to obtain specific performance need not actually tender performance but must nevertheless be able to establish that it was ready, willing and able to perform – Section 103:31 at footnote 5 - that footnote cites to Second

Department cases for this proposition. However the Court of Appeals in Pesa v. Yoma Development Group, Inc., 18 NY3d 527 (2012), said specifically that that was not the rule in the Second Department and in fact in the Pesa case was an appeal from a Second Department case holding to the contrary. The Court of Appeals overruled the Second Department and stated: “The rule followed by the Third and Fourth Departments is the correct one.” Accordingly the rule stated by the text is the correct rule but at the time it was written it was not the correct rule in the Second Department and there was a conflict between Departments. Furthermore, the text needs to be updated to account for a recent Court of Appeals decision expanding the availability of damages to a purchaser when the seller defaults. In all, Commercial Litigation in New York State Courts is a “soup-to-nuts” text for the commercial litigator. It is comprehensive and reliable in its review of case law and, even more importantly, gives the guidance of practicing lawyers who know what they are talking about.

November 2012 (Continued from Page 2)

… President’s Message I am thankful that I did not have to debate during this year

of presidential campaigning. The members should also be thankful. Otherwise, there might have been a display of "reverse-Joe Biden" conduct, i.e. crying by me during the debate and, thereafter, by the members upon the realization that, no matter who won the debate, I would still be president! I am thankful that the campaign season is now over. There were so many people traipsing across my lawn in the last month that I started to give out candy early to induce them to leave. It usually worked, even though it was dollar-store candy. I guess not every politician's price is so steep. I am thankful that Carl Strock has now retired, making him eligible to serve as an editorial counterpoint to my unfocused ramblings. What would we title the conjoined pieces - point and no point? I think I have reached the point of no return, so I am about to wrap up. I am thankful that I only have to write three more of these scholarly pieces. This means you only have to read three more of the works d’art. (I will pause a moment here for the applause to stop. OK Frank, stop clapping so I can finish this.) Of course, you don't have to read any of the pieces. I know - you can't help yourself. You are afraid you might miss something. If you haven't learned by now, I won’t state the obvious. I am thankful that this is the end, but not as thankful as all of you. I am most thankful that I am the first to wish you all a happy holiday season. Be safe!

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Letter on Mystery Photo on Page 1 Hello! My name is Jane (Cohen) Frankel. I am the daughter of former Ernest A.R. Cohen who resided at 27 Front Street. My Dad was a member of your association for many years as he practiced law in Schenectady for a very long time, actually most of his life. I have come across this photo that was in some memorabilia from my Dad’s home which I thought you might enjoy. I do NOT have a clue who any of these former members are but, I believe, they are also former Schdy Bar Assn members. I could be way off in my assumption, however. You might wish to contact Mr. Alfred Goldberger, a former friend of my Dad’s and I also believe that my Dad worked with Alfred on many legal matters. Alfred still practices, I believe, in Schenectady. Not 100% sure on that one, however. Nevertheless, I thought the Bar Assn might like to have this picture. I am going to say it was probably from the 1960s (early?) but there is nothing to lead me to a correct year/date. All I can really tell you is that my Dad is in the white coat, standing 2nd from the right. It’s a neat picture and, to be honest, I do recognize some of the faces, but can’t put a name to anyone else.

P.O. Box 1728 Schenectady NY 12301-1728 518-393-4115 www.schenectadycountybar.org [email protected]