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Dear YLS Member:
In keeping with the momentum of our January issue, this issue of Electronically In Touch is sure to have something for everyone, whether you are interested in:
We would like to thank the young lawyers who submitted content for this issue, and encourage those of you interested in sharing your ideas, advice, tips, and/or content submissions to sent them to us at firstname.lastname@example.org.
We hope that you enjoy the February issue and look forward to staying In Touch...
Justina Cintrón Perino,
Calendar of Events
3/7/2006 5th District Annual Winter Reception
3/29/2006 3rd and 4th District Judicial Forum (save-the-date – more information to follow)
The Essentials of Drafting an Enforceable Arbitration Clause
By Elizabeth J. Shampnoi, Esq.*
The utilization of arbitration, as a method of dispute resolution, is a growing trend among businesses that are cost conscience and looking to minimize the time spent in litigation. For young lawyers, this is an opportunity to demonstrate to the client their understanding of these important objectives. When counseling your client about an agreement, it is important to discuss what method of dispute resolution will be implemented in the event there is a dispute. Further, the pros and cons of alternative methods to litigation should always be discussed.
When the determination is made that an alternative such as arbitration is in the best interests of your client, there are several items that you should be aware of when drafting such a provision. It is not advisable to solely state, “All disputes will be resolved through arbitration.” This leaves the parties with several unresolved issues, which can lead to multiple disputes prior to the commencement of the arbitration. If there is no time or inclination to negotiate the arbitration clause then it is generally acceptable to utilize a standard arbitration clause as a default. For more information and examples of standard arbitration clauses you can visit the American Arbitration Association’s (AAA) website at www.adr.org.
In the event that you are fortunate enough to be in a position to draft or negotiate the clause, you should keep in mind that arbitration is a creature of contract and you can tailor the process to meet the needs of your client. At a minimum; however, the clause should cover the logistics of the process so the matter will not be delayed.
First, determine if you want to have arbitration be the sole method of dispute resolution. Over the years, mediation has grown in popularity and when counsel suggests the use of mediation, it is no longer viewed as a sign of weakness. Mediation can be beneficial to the parties because they can craft their own agreement with the assistance of a neutral third party. Arbitration can always be the next step if the mediation is not successful.
Second, identify the governing rules you wish to apply. Arbitration is designed to be both time and cost effective so the Federal Rules of Civil Procedure should not be your default set of rules for arbitration. Many organizations like the AAA have various sets of rules that are designed for particular industries and these will serve as a default if your clause is silent regarding certain issues. For example, if you have a construction contract you might want to mention the Association’s Construction Industry Arbitration Rules and Mediation Procedures. Likewise, if you anticipate a substantial or complicated dispute consider naming the AAA’s Large, Complex Commercial Dispute Resolution Procedures.
Third, name an administering organization. An administering organization provides a neutral forum that can oversee the arbitration process from start to finish. Among other things, the organization can provide a qualified list of neutrals, handle difficult disclosure issues, collect and disburse funds to the neutrals and handle the removal of an arbitrator if necessary.
Fourth, identify which issues are subject to arbitration. One can utilize wording such as, “Any and all disputes related to this contract shall be….” You might want to consider limiting this broad statement by specifically naming the types of issues the arbitrator can decide and which are reserved for the courts.
Fifth, entry of judgment language for domestic matters is important. Specifically stating that, “…judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof…” is usually enough, but check your local rules to be sure.
In sum, there are several other considerations when drafting, such as the number of arbitrators to serve, the locale of the hearing and choice of law. Utilizing a simple and straightforward clause will avoid unnecessary delay in the commencement of the arbitration. Where possible, draft the clause to meet your client’s needs so that you can exercise some control over the dispute resolution process.
The American Arbitration Association is a not-for-profit, full-service ADR provider offering dispute avoidance services such as partnering, dispute review boards (DRBs) and on-site neutrals, as well as traditional dispute resolution procedures such as mediation and arbitration. For more information, please contact Elizabeth J. Shampnoi in the New York Regional Office at 212-484-4084 or visit the Association’s web site at www.adr.org.
* Elizabeth J. Shampnoi, Esq. is the District Vice President of the New York region for the American Arbitration Association. She is responsible for business development, education, outreach, special events, and the panel of arbitrators and mediators in the New York Metropolitan area. Ms. Shampnoi is a member of the bar of the State of New York and of the State of Connecticut.
Standing Out in the Crowd—a monthly column
By Christina H. Bost Seaton*
Don’t Forget Your Friends
Young associates often think that the most important thing is to bill as many hours as possible. After all, isn’t that the only way they end up being valuable to the firm at their age? The more hours they bill, the more money the partners make, and the more likely you’ll keep your job.
Billing hours, however, is only part of the equation. In order for there to be hours to bill, there must be clients. Where do clients come from? Most of the time, they don’t just walk through the door, waiting to be served. There are tens of thousands of lawyers, and hundreds, if not thousands, of law firms in New York City alone. To many potential clients, lawyers and law firms basically seem interchangeable. Because of this, most clients choose their lawyers, as opposed to any number of other qualified lawyers, because they have a personal relationship with that lawyer (or with another individual who has recommended the lawyer).
If you are interested in being at your firm for the long haul, and, in particular, if you would like to make partner, the most powerful thing you can do is to bring in clients. The process of bringing in clients is referred to in legal jargon as “business development,” and many attorneys think of it as only one step above Bobcat Dan pitching used cars. In my mind, labeling the process of getting clients “business development” only does a disservice to young attorneys, because it adds an unnecessary air of mystery to a totally ordinary thing. “Business development” is really no more than having friends (and friends who have friends.)
When young associates think of “business development,” they think of the fancy hot-shot partner, who has a $15 million book of business. Young associates generally don’t know people who are CEOs at fancy corporations that can afford to hire attorneys at our rates. But “business development” isn’t about making a quick sale. It is an ongoing process of relationship building, or to put it even more simply, having friendships. Your friends may not be Mr. Moneybags now, but in the future, they may be the ones with the power to hire outside counsel when their company gets sued. If you’ve been a good, reliable friend, and you’ve illustrated that most important lawyerly trait, good judgment, they just might call you. And if you’re really lucky, they’ll start calling you even when you are a young associate.
So, make sure to catch your college happy hour sometimes. That hour may be far more valuable than an extra billable.
* Christina H. Bost Seaton is a second-year associate in the litigation and labor and employment practice groups at Troutman Sanders LLP in Manhattan, where she is constantly trying to “play rainmaker.”
Case Law Update
By Matthew S. Lerner*
Recent Grants for Leave to Appeal to the New York Court of Appeals
On December 20, 2005, the New York Court of Appeals granted leave to appeal to the Court in three cases impacting New York civil law. First, the Court granted leave to appeal in Parker v. Mobil Oil Corp., 16 A.D.3d 648 (2d Dep't 2005), concerning an issue of expert witness testimony in a toxic tort context. In Parker, the plaintiff was diagnosed with acute myelogenuous leukemia ("AML"), and commenced a personal injury action against certain oil corporations. He alleged that he contracted AML as a result of his occupational exposure to gasoline containing benzene. The novel issue surrounds the admissibility of the plaintiff's expert witnesses, who attempted to establish the causal link between the plaintiff's exposure to the gasoline and his AML. The core evidentiary issue is to what extent the plaintiff was required to establish the precise level of his exposure to benzene to establish that his AML was caused by it through scientifically-reliable methodology. The Appellate Division, Second Department granted motions in limine to preclude the plaintiff's experts' opinions based on the speculative nature of their methodology.
In Allstate Ins. Co. of Hartford v. Cook, the Court will likely address the interplay between allegations of an insured's self-defense justification and an insurer's disclaimer based on an intentional act exclusion of the insurance policy. The Third Department in Cook decided the novel issue of insurance coverage. The insured killed a person in his house, claiming he did so in self-defense. In light of a wrongful death action brought by the decedent's estate and son, the insured sought a defense and indemnification under his homeowner's insurance policy. The Third Department upheld the insurer's disclaimer, determining that the insured's actions were not covered under the applicable policy. Notably, Justice Cardona dissented, observing that the insured's actions could fall within the ambit of the negligence cause of action in the underlying wrongful death complaint.
Finally, the Court granted leave to appeal in Semenetz v. Sherling & Walden, Inc., involving the application of the product-line exception to gain jurisdiction over a successor corporation. This case involves the issue of whether a corporation that buys all of the predecessor corporation's assets, including goodwill, trade names and inventory, is subject to New York jurisdiction based upon the "product line" exception to the traditional successor corporate liability rule. The Third Department stated in its decision, "a corporation which acquires the assets of another is [generally] not liable for the torts of its predecessor."
The facts of the case will help understand the precise issue. An Alabama corporation, the defendant, manufactured and sold a product to a New York corporation. The plaintiff was allegedly injured while using the product. A little over a year after the accident, the defendant sold all of its assets, including goodwill, training, and inventory, to the defendant Sawmills, an Alabama corporation with its principle place of business in Alabama. The plaintiff attempted to establish jurisdiction over the defendant Sawmills through an exception to the product-line exception to successor corporate liability.
* Matthew S. Lerner is an associate at the Albany, New York, office of Goldberg Segalla LLP. He is also the author of New York Civil Law, a forum for the discussion of New York Appellate Law, Civil Procedure, Insurance Law and Defense, and other interesting legal issues. He can reached at: email@example.com and his “blawg” can be accessed at: http://www.nylaw.typepad.com/.
The YLS Spotlight
The YLS Spotlight is an opportunity to feature interesting, noteworthy, and outstanding achievements of young lawyers practicing in, around, and throughout the State. We hope that this can become a regular section of our monthly eNewsletter and encourage you, our readers, to notify us of any young lawyers in your community who you believe should be recognized.
In this issue, the YLS spotlight is on Jared Zola, Esq.
Jared Zola, Esq., a 2003 graduate of the Benjamin N. Cardozo School of Law, has been practicing at the litigation boutique Weg & Myers, P.C. in Manhattan since completing the July 2003 Bar Exam. While in law school, Jared was the Managing Editor for the Cardozo Arts and Entertainment Law Journal and received the Jacob M. Burns award at graduation for outstanding contribution in that capacity.
The bulk of Jared’s practice focuses on representing insurance policyholders in first-party coverage lawsuits against their insurance carrier. An associate at Weg & Myers, P.C., he regularly takes and defends depositions, writes motions on complex insurance law issues, argues motions before the Courts of this State, writes appellate briefs for argument before the New York Appellate Division and the United States Court of Appeals for the Second Circuit, as well as prepares for and second-seats senior trial counsel in major insurance coverage trials. Case summaries hightlighting several of Jared's recent decisions may be accessed via the following link: www.nysba.org/YLSCaseSummaries
With only three years of practice under his belt, Jared has played an active role in preparing for four major trials; three of which resulted in large, favorable settlements and one of which resulted in a verdict in favor of his clients. His role consisted of preparing witnesses for direct and cross-examination and second seating senior partners during the trials. One trial was settled in the amount of $1.125 million against a nationally know construction conglomerate on the eve of the verdict. A subsequent verdict was in the amount of $3.125 million against a major insurance company. In addition to his trial work, Jared has facilitated several settlement negotiations over the past year that have resulted in millions of dollars for his clients.
An Update from the Second District
By Susan Master, YLS Second District Representative
There are new places and new faces to get to know in the Second District. Of major note is the change of Brooklyn’s skyline with the July 2005 opening of New York State’s largest and most technologically advanced courthouse, the Brooklyn Supreme and Family Courthouse. According to the Journal of the New York State Unified Court System, the new courthouse, which is located at 330 Jay Street, and visible from the Brooklyn Bridge, is 473 feet tall with 32 stories and 1.1 million square feet of space.
The $670 million building, which houses the Kings County Supreme Court Criminal Term and the Kings County Family Court on 25 floors, has more square footage and courtrooms than any other courthouse in the Empire State. The Criminal Term has 50 courtrooms, and has relocated from 360 Adams Street and 120 Schermerhorn Street. The Family Court has 34 court and hearing rooms, and has relocated from 283 Adams Street. The building at 120 Schermerhorn Street will be renovated and used exclusively for Criminal Court. The courthouse at 360 Adams Street now houses the Supreme Court Civil Term.
There is also the new Eastern District federal courthouse, located at 225 Cadman Plaza. According to the New York Law Journal, the 14 story building contains 27 chambers, 16 district courtrooms, and eight magistrate courtrooms.
As for the new faces, in December 2005, Hon. A. Gail Prudenti, Presiding Justice of the Appellate Division, Second Department, announced the immediate appointment of Nancy T. Sunshine as the County Clerk of Kings County. Ms. Sunshine had been serving as Chief Clerk of the Appellate Term and now replaces the late Wilbur A. Levin as Brooklyn’s County Clerk and Commissioner of Jurors.
The newly-elected Surrogates of Kings County, Hon. Frank R. Seddio and Hon. Margarita Lopez Torres, took office in January 2006. Yet another change in the Brooklyn courts was the designation of Supreme Court Justice Theodore T. Jones as Administrative Judge of the State Supreme Court, Civil Term, Kings County. According to the Office of Court Administration, this is a new title, as the responsibilities were previously undertaken by Hon. Neil J. Firetog, who had overseen both the Criminal and Civil Terms. Judge Firetog remains the Administrative Judge of the Criminal Term, which has moved to the Jay Street courthouse.
Lastly, Judge Melanie L. Cyganowski has been named Chief Judge for the U.S. Bankruptcy Court for the Eastern District of New York, which is now located in the newly renovated federal building on Cadman Plaza East. According to the New York Law Journal, Judge Cyganowski sits in Central Islip and has been on the Bankruptcy Court bench since 1993. She replaced the late Conrad B. Duberstein.
ATTENTION Law Students…
The Corporate Counsel Law Section has established a diversity internship program, named for former NYSBA President Kenneth G. Standard, to place interns from diverse groups in in-house summer positions. The diversity internships will commence summer 2006. The Section's Internship Committee, headed by past Section Chair Barbara Levi, plans to recruit interns from a diverse group of law school candidates. Three internships are expected to be awarded for the first year to students who have successfully completed one year of law school at an accredited New York State school. For more information, contact the Chair of the Internship Committee, Barbara Levi, by telephone at (201) 894-2766 or by email at firstname.lastname@example.org.
In the New York State Bar
In the American Bar Association
The ABA President-Elect makes approximately 600 appointments to standing committees, special committees, commissions, and other entities and initiatives. An online guide lists and describes the available appointments, describes how each appointment fits into the overall organization, and suggests experience that may be helpful in connection with appointments.
All ABA members are eligible for a Presidential appointment. The deadline for all submissions is March 1, 2006. For more information and to apply online, click here. You may also submit a hard copy of the application form, rather than completing the on-line application, by fax or mail to:
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