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April 2007 Dear YLS Member: I am pleased to present to you the April issue of Electronically In Touch. In this issue, you will find: • Civilly Settling: Civil Appeals Settlement Initiatives and
You - a practical guide to civil appeals settlement in New York. I would like to thank the young lawyers who submitted content for this issue. Your contributions are important in keeping the YLS membership informed of current topics, trends, and developments in the law. Your career and professional development advice is always useful, practical, and enjoyable to read. If you are looking for an opportunity to become more active in the Section, I encourage you to consider writing a brief article, case law update, legislative summary, book review, or comment on a current news event for inclusion in the newsletter. I also encourage you to share any ideas, advice, and/or tips you may have on ways we can improve this publication to meet your unique and changing needs. Submissions should be sent to me at jcperino@gmail.com. Electronically In Touch is a monthly publication. The deadline for submissions is the 10th of the month. We hope that you enjoy the April issue and look forward to staying In Touch… Justina
Cintrón Perino Civilly Settling: Civil Appeals Settlement
Initiatives and You What do appeals involving Election Law cases and Article 78 actions have in common? While it might not be the first thing to come to mind, these actions are among the few that are not eligible for an appellate settlement conference in most departments. The driving force behind holding a settlement conference for most civil appeals is judicial economy, and the appellate divisions themselves promulgate rules which carry out this intent. The settlement conference system is much like that provided by the CPLR at the trial court level, in that counsel to the litigants – and possibly the litigants themselves – are brought to the conference in order for a mediator to decide whether there are areas of contention that can be settled or limited on appeal. Before taking an appeal, it is important to consult your local appellate division’s rules regarding civil appeals settlement programs in general and how these rules apply to your case in particular. Each appellate division uses variants on the civil appeals settlement theme, and, effective February 1, 2007, the Fourth Department has done away with its civil appeals settlement program altogether. Regardless of the appellate division to which you take an appeal, if your case falls within the ambit of the civil appeals settlement criteria used by the applicable appellate division, you must complete a prescribed form, which typically asks for a summary of the parties involved on appeal, issues on appeal, and the procedural history of the case. This form should be filed with the Notice of Appeal, and will be transmitted to the Appellate Division along with the Notice of Appeal. There are a few important things to remember in regards to civil appeals settlement procedure. In many cases, it is possible for actions excluded from a civil appeal settlement conference requirement to appear as though they are in fact covered actions. For example, in an article 78 action, an individual petitioner may sue a governmental entity and name an individual official as the lead appellant, making it appear as though the case is a standard civil case and subject to the civil appeals settlement conference requirement. If there is any doubt, or if you receive a request for civil appeals settlement forms which you believe to be erroneous, a call to the clerk can easily end the confusion. In preparing for a settlement conference, it is important to fully explain to your client the nature of the proceeding and assure your client that his rights on appeal will not be prejudiced in the event that he opts not to settle. The non-binding nature of a settlement conference should not, however, obviate the fact that issues of law and fact will likely arise during the conference, and, even if the briefs have not been filed yet, it is important to have a working knowledge of your arguments on appeal before going to the conference.
On February 20, 2007, New York’s highest court ruled that a union employee’s right to have union representation at a meeting with his bosses, where he reasonably feared that the meeting might lead to discipline, did not apply to public sector union member employees as it did to private sector union member employees. In other words, no longer are you entitled, as a public school administrator, to invoke the Taylor Law [Civil Service Law § 200 et seq.] as a basis to have union representation guaranteed when you go into a meeting with District personnel where you believe discipline may result. This is a diminution of the well-known “Weingarten Right.” The decision raised the hairs on the back of the necks of your SAANYS (School Administrators Association of New York State) legal staff, and undoubtedly their counterparts down the road at NYSUT (New York State United Teachers). So is there any comfort that can be taken from the decision? Well, considering that New York’s highest court is not likely to overrule itself, we can only look to Chief Judge Judith Kaye’s dissent of the decision. Judge Kaye basically undressed the majority with a recitation of case law, legislative history and powerful, insightful reasoning. Without going into a protracted legal discussion, the majority distinguished the language of the National Labor Relations Act (NLRA) that provided the basis for the Weingarten protection for private sector union member employees with the language of the Taylor Law, which applies to New York public sector union member employees. Judge Kaye’s dissent, its defense of you and your rights, was legally powerful, but still missed the boat on one aspect your humble correspondent wishes would be given greater consideration. The arguments on both sides flirt with, but never directly address, the philosophical distinctions between public sector and private sector employment. Judge Kaye’s legal discussion points to the private union employee’s right to strike with the public union employee’s statutory prohibition from striking as a practical and fundamental basis for her interpretation that the Weingarten Right should apply to employees subject to the Taylor Law. Judge Kaye builds her, in my legal opinion, correct and powerful argument from there. However, Judge Kaye’s argument, like many legal arguments, relies too much on the “perceived imbalance” between management and rank and file. The courts refer to rank and file employees as “fearful” and “ignorant” and ever-condescendingly “inarticulate” when it comes to dealing with bosses. While in individual instances this may be true, it offends my egalitarian impulses that legal precedent, which has the force and effect of shaping public opinion, should be based on such paternalistic and condescending premises. When the leaves on a tree begin to die early, we look to its roots for the cause. I say to the courts; the leaves of the Weingarten tree are dying, so check your premises, your roots so to speak. In private sector business, the goal is to grow the corporate body by application of its rational self-interest to value-for-value transactions between virtuous parties. Non-virtuous parties become excluded by trial and error and bad reputation. You know, the old “fool me once shame on you, fool me twice shame on me” method. Tried and true throughout the ages. The public sector does not have the same goal. The public sector relies on the unnatural cooperation of the participating individuals to transfer their rational self-interest for personal gain (that would redound to the gain of the corporate body in the private sector) to that of the public good. In other words, the goal is different in the public sector, but the human beings involved are not. The public sector is not funded by value-for-value transactions, it derives its funding by confiscation of the property of the taxpayers. This makes public sector employment invariably political. Therefore, a compelling argument should be made that the Weingarten Right must be implied in and applied to the Taylor Law to protect New York’s public sector employees against the political vagaries of public employment. Political witch-hunts and personality conflicts are ubiquitous underlying factors in labor relations disputes in New York’s public sector today. Judge Kaye’s dissent comes ever so close to disclosing this. However, it’s too little too late. The majority has spoken and your right to representation has been diminished. Could this lead to a Kafka-esque interrogation of a public employee? It may and sooner than we think.
Standing Out in the Crowd—a monthly
column Continued Reflection Last month we began to tackle the nagging question that many young lawyers face—what am I going to be when I “grow up”? In order to address that question, young lawyers need to be willing to re-evaluate where they are in their careers. To do so, you must engage in a process of introspection and self-reflection. This process isn’t easy, but it will help you determine your priorities. Last month, I asked you to consider four questions that would help you begin this process: (1) Why did you
want to become a lawyer? Often, young lawyers get so caught up in the day-to-day aspects of their jobs that they lose touch with why they wanted to be a lawyer at all. I can bet you didn’t choose to be a lawyer because you wanted to do the tasks often delegated to the most junior associates, such as editing documents and organizing papers. Whatever your original motivation for becoming a lawyer was, your experiences as a “real” lawyer should now have illustrated to you the differences between your ideas about being a lawyer and the reality. Ask yourself what parts of your job, today, you most enjoy. Do you really enjoy researching corporate law? Is your favorite task negotiation? Today, you may find that you want to be a lawyer because you really want to continue defending employees from enforcement of non-compete agreements, whereas you had originally thought you wanted to litigate large securities cases. Figuring out what parts of being a lawyer you really enjoy is really a tactical question. On the other hand, the third question listed above, asking what you really want from your career, is a big picture, strategic question. You may not have had a concrete answer to the latter question. That’s okay. That question is really a more targeted version of the fourth question listed above—what are your priorities in life? Spend some time really thinking about your priorities. Are you wildly passionate about volunteering for Big Brothers/Big Sisters? Is there nothing more exciting to you than working on the hottest, most cutting-edge case? To enjoy life, you have to make time (and opportunities) to do the things that are most important to you. When figuring out what you want to be when you “grow up,” you need to find a job that (a) on a day-to-day basis, includes the legal tasks you most enjoy; and (b) permits you to live your life in accordance with your priorities. Here are two more questions you can consider when engaging in this reflective process: (1) Who do you
want to become? As I suggested last month, take a block of time this weekend and really think about these questions. Actually write down your answers. Remember, your answers are only for you. Respect yourself enough to take the time to really think about what you want out of life. After all, you can’t find what you’re looking for if you don’t know what it is.
BOOK REVIEW Mark Herrmann is a litigation partner in the Cleveland office of Jones Day. In this 135-page book Mr. Herrmann offers advice to new associates on everything from dealing with your secretary to Blackberries. Herrmann states that “BlackBerries don’t make people rude. Jerks who own BlackBerries reveal that they’re jerks because the technology makes the revelation easier.” The second chapter is entitled “How To Fail As An Associate” and lists the ten most common mistakes made by associates. Every associate should read this chapter and then evaluate their work. If an associate cannot create a market for his or her services within the firm, then they should not be surprised when their associate supervisor calls them into his or her office for an “interim review.” There were some comments in the book that I thought were unnecessary, however, it is better to hear them from a partner in another firm then to find out that these comments were made about you during the last partners meeting. The
Curmudgeon’s Guide to Practicing Law is published by ABA
Publishing and is Saturday, May 19, 2007 Please contact James R. Barnes as soon as possible at jbarnes@burkecasserly.com to reserve your spot. May 23, 2007 Networking Reception/Financial Education Seminar for Young Lawyers All Young Lawyer
Section members are invited to attend a special networking and financial
educational workshop. The networking reception begins at 5:30 P.M. (Cash
bar and light hors d'oeuvres). The workshop begins at 6:00 P.M. at the
New York State Bar Association, One Elk Street, Albany, New York. The
workshop is being presented by Jordan Smith, an Albany Law graduate and
financial adviser. Jordan will cover six areas that are the key to sound
personal financial management for the young lawyer: Please RSVP, via email to YLS@nysba.org, no later than Friday, May 11, to reserve your place. May 26,
2007 All young lawyers are invited to attend the Binghamton Mets vs. New Hampshire Fisher Cats ballgame on Saturday, May 26, 2007 at 7:00 p.m. The B-Mets Stadium is located at 211 Henry Street, Binghamton, New York 13901. The cost is only $10.00 per person, payable at the door. This is a small fee to pay considering you’ll be watching the game from a skybox and enjoying great food and beverages provided by your host the Young Lawyers Section of the New York State Bar Association. Please RSVP to Carrie Wenban, cwenban@binghamtonlaw.com or (607) 584-5654, by May 18, 2007. Tickets will be left at the will call box for pickup upon arrival to the stadium. June 3-4,
2007 Hotel George * Alexandra R. Harrington is engaged in private practice in Albany, New York, and is counsel to the Albany lobbying firm of Powers & Company. ** Andre Dalbec is Assistant Counsel at the School Administrators Association of New York State in Latham, New York. *** Christina H. Bost Seaton is a third year associate in the complex litigation and labor & employment practice groups at Troutman Sanders LLP in Manhattan, where she is constantly trying to “play rainmaker.” She is the co-author of Say Ciao to Chow Mein: Conquering Career Burnout, which is available on www.cordellparvin.com and at bookstores. **** Carrie A. Wenban is an associate at Levene, Gouldin, & Thompson, LLP in Binghamton, New York. |
