prsrt std u.s. postage paid permit no. 416 … · april is the cruelest month. so opines t. s....

BULLETINwww.eriebar.org

President’s Letter

PRSRT STDU.S. Postage

PaidBuffalo, NY

Permit No. 416

B A R A S S O C I A T I O N O F E R I E C O U N T Y Vol. 53 | No. 3 | November 2013

By Michael J. Ryan

April is the cruelest month. So opines T. S.Eliot in “The Wasteland.” Of course, he neverspent a January in Buffalo.

Personally, November is not in my top ten.

Summer is really over. The fall foliage is nowthe fallen foliage. Another unsuccessful trick-or-treat foray. The Bills have been mathematicallyeliminated from the playoffs. Possibly theSabres, too.

Looking back, it was November 1, when Ishipped out for Viet Nam. And, on November11, we observe what was originally calledArmistice Day. The day to remember those whohad fallen in the war to end all wars. Thatappellation proved to be overly optimistic, asthe past century has seen conflicts almost with-out interruption. So we call it Veterans Day.

I am saddened to think about the fine peoplewho made the ultimate sacrifice and wonderabout their accomplishments had they lived. Iam also humbled and honored to have been intheir ranks.

Allow me two disclaimers:

First, I am not a hero. And I do not mean thatin the same sense that Richard Nixon professedhe was not a crook. Because we all know hewas.

Second, nobody owes me nuthin’! Hold theparade.

In all candor, I was not some gung-ho trooperwho volunteered to participate in the live fireexercise across the pond.

While in Infantry School at Fort Benning, abunch of us whose main branch was MilitaryIntelligence (I already know all the oxymoronjokes) were called out to take a series of tests.

continued on page 4

Disaster Recovery Manual Now Available

It was standing room only in the atrium of the newRobert H. Jackson United States Courthouse in down-town Buffalo as over 200 guests recently gathered for theformal unveiling of the building’s official name honoringthe Supreme Court Justice and U.S. Chief Prosecutor atNuremberg.

“The nightly news seems to be continu-ously filled with stories of disaster. Nolawyer now living will ever forget theevents of September 11, 2001, and theireffects on our colleagues who practicedfrom the twin towers of the World TradeCenter.”

~ Laura A. Calloway Alabama State Bar

What would you do if there was a fire inyour building and you couldn’t get backinto your office? What if someone hackedinto your computer and destroyed client files? Ormaybe you’re a solo practitioner who suffers an injuryor illness that renders you unable to work for a consid-erable period of time…what then?

To help address these questions and more,Immediate Past President Kathleen M. Sweetappointed a disaster recovery task force in Novemberof 2012. Chaired by William F. Savino, the group wastasked with developing a model disaster preparednessplan that would help local attorneys anticipate andplan for events that could disrupt their practices. Thetask force recently completed its work and has releaseda manual, which is now available on the BAEC web-site, www.eriebar.org.

“The seed of the idea for disaster planning cameout of the ABA meeting in New Orleans,” according to

Federal Courthouse Officially Named for Justice Robert H. Jackson

Hon. William M. Skretny, Chief U.S. District Judgefor the Western District of New York, presided at theceremony as Hon. Richard J. Arcara welcomed atten-dees. Skretny and Arcara began making the case for a

Sweet, who noted that the meet-ing “was held on the anniversaryof the week it was supposed to beheld when Katrina hit there.”

Sweet says the meeting “pro-vided dozens of real-life examplesof the storm’s impact on thewhole community and on lawyersin particular.”

“How that event affectedlawyers professionally and per-sonally and how it affected their

clients, the court system and the legal community was,frankly, way more involved than I had ever consid-ered.”

The meeting inspired Sweet to make disaster plan-ning and business continuity one of her presidential ini-tiatives.

“Although we will likely and hopefully never sustaina natural catastrophe of that scale here, the programsmade me realize that even on smaller, more predictableevents, my own firm could benefit from having somestructured approach to readiness and planning so thatthe pain and aggravation of responding to an unwel-come event could be mitigated,” Sweet says.

The manual covers numerous aspects of the disastercontinued on page 4

continued on page 6

From left, Thomas King of GSA, Jackson’s granddaughter Julia Craighill, Second Circuit Executive Karen Milton, Hon. WilliamM. Skretny, Chief U.S. District Judge for the Western District of New York, Hon. Robert A. Katzmann, newly appointed ChiefJudge, U.S. Court of Appeals for the Second Circuit, Hon. Richard J. Arcara, Hon. John T. Curtin, Hon. John L. Michalski, andJackson’s grandson Tom Loftus. Photo by Cynthia Peterson

“They died for liberty – they died for us. They are at rest. They sleep in the land they made free, under the flag they rendered stainless…”

~ Robert Green Ingersoll

www.eriebar.org | November 2013

Vol. 53 | No. 3 | November 2013

BAR ASSOCIATION OF ERIE COUNTY

Organized 1887

438 Main Street, Sixth Floor | Buffalo, New York 14202

(716)852-8687 | fax (716)852-7641 | www.eriebar.org

Bulletin correspondence: [email protected]

BOARD OF DIRECTORSRegina A. Del Vecchio, Frank LoTempio III, Daniel T. Lukasik, Brian M.Melber, Edward J. Markarian, Marianne Mariano, Daniel J. Marren andWilliam F. Savino, Jeffrey F. Baase, Laura C. Doolittle, Michael J. FlahertyJr., Anne E. Joynt

LIFE MEMBERS

Mark A. Adrian, Carol J. Alaimo, Brian D. Baird, Patrick J. Bannister, LynnA. Clarke, William J. Cunningham, Eric P. Doherty, Victor J. Gagliardi,Sharon Stern Gerstman, Jean E. Gittler, Susan J. Grelick, Donald J.Holzman, Stanley Kwieciak III, Michael P. McClain, J. Eldon Owens, LaurenD. Rachlin, Jeffrey A. Spencer, James M. Wadsworth.

Would you like to see your name here? See page 19 to find out how to become a contributing member.

CONTRIBUTING MEMBERS

Joan Casilio Adams, Peter S. Aiello, Donald A. Alessi, Grace Marie Ange,Richard J. Attea, Hon. Rosalie M. Stoll Bailey, Hon. Tracey A. Bannister,Stephen E. Barnes, Jr., Thomas R. Beecher, Jr., Ronald P. Bennett, LeonardBerkowitz, David W. Beyer, Richard S. Binko, Richard N. Blewett, Harold J.Brand, Jr., Peter J. Brevorka, Phillip Brothman, Patrick J. Brown, T. AlanBrown, Joel Brownstein, David Buch, Donna L. Burden, James P. Burgio,Michael C. Burwick.

John F. Canale, John J. Carney, Alan S. Carrel, Thomas R. Cassano, StephenE. Cavanaugh, Ferdinand J. Ciccarelli, Emilio Colaiacovo, John F. Collins,William B. Collins, Anthony J. Colucci, Jr., Robert B. Conklin, Robert N.Convissar, Edward C. Cosgrove, Peter L. Costa, Donyelle E. Crapsi, Paul V.Crapsi, Jr., Douglas S. Cream, Hon. John T. Curtin, Steven P. Curvin, RogerT. Davison, Regina A. Del Vecchio, John M. Dempsey, Richard F.DiGiacomo, Anne C. DiMatteo, Dean M. Drew, Hon. Timothy J. Drury,Marvin T. Dubin, Robert E. Dwyer, Donald B. Eppers, Leo J. Fallon, Victor N.Farley, Mark G. Farrell, Gabriel J. Ferber, Michael E. Ferdman, Robert P.Fine, Peter J. Fiorella, Jr., Brian P. Fitzgerald, Richard E. Forrestel, LawrenceC. Franco, Brenda M. Freedman, Jeffrey M. Freedman, MaryannSaccomando Freedman, Robert Friedman, John J. Fromen.

Thomas J. Gaffney, William H. Gardner, Lynn D. Gates, Eugene M.Gaughan, Stuart A. Gellman, Robert M. Goldstein, Jerome C. Gorski,Wayne R. Gradl, Samuel L. Green, John C. Grennell, Richard F. Griffin,Richard D. Grisanti, John J. Gruber, Mark W. Hamberger, Thomas J. Hanifin,James P. Harrington, Mary Louise Hayden, Herbert J. Heimerl, Jr., WilliamR. Hites, Susan S. Hogan, Edwin P. Hunter, Melvyn L. Hurwitz, Norman E.Joslin, James B. Kane, Jr., Judith D. Katzenelson, James J. Kirisits, William J. Kita, Christian G. Koelbl III, Dan D. Kohane, Karl W. Kristoff,Thomas E. Krug.

Stephen R. Lamantia, John P. Lane, Richard J. Lehner, John N. Lipsitz,Arthur A. Lorenzo, Frank LoTempio, III, Leo M. Lynett, Jr.

James L. Magavern, Irving C. Maghran, Jr., Mark J. Mahoney, Giles P.Manias, John Markarian, Mary Dee Martoche, Hon. Salvatore R.Martoche, Norman J. Mattar, Hon. Jeremiah J. McCarthy, Maureen A.McCready, Thomas I. McElvein, Jr., Donald G. McGrath, Diane J.McMahon, Brian M. Melber, Raymond T. Miles III, Joseph D. Mintz, AlbertJ. Mogavero, Peter J. Murrett, Jr., Joseph M. Nasca, Paul T. Nesper, PaulaM. Eade Newcomb, Anthony M. Nosek, Hon. Henry Jos. Nowak, James J.O’Brien, Robert L. O’Connell, Hon. John F. O’Donnell, Timothy M. O’Mara.

Carl P. Paladino, Frank R. Papa, Thomas C. Pares, James A. Partacz, RobertE. Pearman, Hon. Erin M. Peradotto, Robert H. Perk, Jeffrey A. Perla,Michael F. Perley, Nicholas A. Pierino, Joel M. Poch, Theodore J. Pyrak,James P. Renda, Mary (Molly) K. Roach, Jay N. Rosenthal, Mario J. Rossetti,Victor A. Rossetti, Richard P. Rosso, Arthur J. Rumizen, Arthur A. Russ, Jr.,Thomas Santa Lucia, Scott M. Schwartz, Edward J. Schwendler, Jr., RichardB. Scott, Donald P. Sheldon, Richard J. Sherwood, Louis H. Siegel, MyronM. Siegel, Robert G. Sillars, Richard Charles Slisz, Robert B. Sommerstein,Gregory Stamm, Robert S. Stephenson, Milton J. Strebel, David L. Sweet,Kathleen M. Sweet.

Phillip A. Thielman, Gordon D. Tresch, Thomas V. Troy, Frederick D. Turner,Dimitri J. Tzetzo, Peter A. Vinolus, Dale M. Volker, Matthew X. Wagner, Jr.,John B. Walsh, Neil Weinberg, Peter C. Wiltse, Wayne D. Wisbaum, RichardD. Yellen.

Letters to the editor and short articles of general interest to our readers are alwayswelcome. All materials submitted for publication in the Bulletin are subject to editing for reasons of style, space and content.

Send all submissions as Word documents to [email protected] (preferred) or by mail to: Bulletin Editor, 438 Main Street, Sixth Floor, Buffalo, NY 14202.

Call Brittany Luongo at Bar Headquarters for more information, 852-8687.

DEADL INE• • • January 2014 Bulletin D E A D L I N E • • •

The next deadline for ALL Bull etin contributors and advertisers is

Wednesday, November 20, 2013.

Every Lawyer’s Worst Nightmare

“What do you want from me? We didn’t rehearse that one in your office!”

We Have A Winner in Our Caption Contest! Congratulations to Patrick J. Baker of Buffalo, who came up with the winning caption.

Thanks to all who took the time to submit their ideas.

EDITORIAL BOARDEditor ............................................Bonnie D. O’BrianLaw Editor ....................................Jeffrey A. SpencerTax Notes Editor ..........................Gary D. BorekArt Editor ......................................Giles P. Manias

Hon. David J. Mahoney(1960-2008)

Photography ................................Susan L. KohlbacherGlenn Edward Murray

Editorial Assistant ........................Brittany O. Luongo

OFFICERS AND DIRECTORS | 2013-2014President ......................................Michael J. RyanVice President ..............................Laurie Styka BloomTreasurer........................................Bruce W. HooverDeputy Treasurer ..........................Gregory T. MillerExecutive Director........................Katherine Strong Bifaro

continued on page 4

Letters to the EditorDear Editor:

A report that ran on “60 Minutes” recently was noth-ing more than an attack on the disabled.

Anchor Steve Kroft contended that Social SecurityDisability was nothing more than a “secret welfare sys-tem.” Kroft also stated in his report that people are“gaming the system,” but where are the numbers toback up this assertion? He doesn’t state how manypeople may be cheating the system or fraudulentlyreceiving SSD benefits. Kroft’s assertion was madewithout any sort of hard numbers to back up such aninflammatory statement.

According to the Consortium for Citizens withDisabilities (CCD), the Social Security Administration’sstandards for being approved are among the strictest inthe world. Only four in ten applicants are awardedbenefits. Many people who are chronically ill waitmonths or years for benefits, and when they do receivebenefits, payments are modest. The average SocialSecurity Disability monthly payment is $1,100, and ishardly making anyone rich.

Sen. Tom Coburn of Oklahoma also chimed in, stat-ing “Probably a third of people on disability, there’s noway they’re disabled.” Again, what is Sen. Coburn bas-ing this on? The statements made by Sen. Coburn andKroft were made without any justification of facts andfigures. No individuals with disabilities or disabilityadvocates were interviewed for the report. This wasnothing more than a one-sided story that asserts theSSD is full of scammers.

Kroft also took it upon himself to inflate the numberof SSD recipients, putting the number at 12 millionpeople. There are not 12 million people collecting SSD.The number, based on the SSA’s statistics, is 10.9 mil-lion, with 8.8 million actual recipients and roughly 2

million of their family members, most of whom arechildren.

The “60 Minutes” report also attributes the rise inpeople receiving disability to the downturn in the econ-omy and says that SSD is being used as a replacementfor unemployment. However, the numbers say other-wise. The percentage of applicants awarded benefitshas declined during the recent economic recession. Thenumber of people awarded SSD benefits dropped from39 percent in 2007 to 33 percent in 2011. This sug-gests that applicants who did not meet the strict stan-dards were screened out.

During the course of the story, Sen. Coburn told thestory of a tree trimmer who was collecting SSD and stillworking. Coburn claims the tree trimmer asked for hispayment in cash so that he could continue to collectdisability. This example does not portray an accuratepicture of SSD recipients, many of whom are elderly, orstruck with serious diseases such as cancer and multi-ple sclerosis. Diseases such as these make working anear impossibility and force recipients to collect bene-fits that are scarcely above the poverty level.

“60 Minutes” also quoted Buffalo native JudgeMarilyn Zahm, who seemed to state how easy it is toget disability benefits. However, Judge Zahm wasquoted in a 2009 Buffalo News story as saying thestandards were too tight. “Every month, most judgessee a case that should have been paid at the first level,”Zahm said then.

The story also spent a significant amount of timefocused on the supposedly lucrative business of attor-neys flooding the system with disability cases. This isnot the true focus of the SSD program. The focus is therecipients, many of whom depend on a modest benefitto help pay for basic necessities such as food, shelter,

More than 70 percent of members surveyed rated CLE programs presented by the

Erie Institute of Law as the most important services we offer.

You won’t find local CLE programs as compelling, convenient and cost-effective

anywhere else.

It’s great to belong to something this good.

Listenand Learn.

Peter J. Battaglia, DeanErie Institute of Law

bar associationof erie county

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PAGE 3November 2013 | www.eriebar.org

bench and bar in the news

How to place an announcement:

If you are a BAEC member in good standingand you’ve moved, been promoted, hired anassociate, taken on a partner, or received anaward, we’d like to hear from you. Talks,speeches (unless they are of national stature),CLE presentations and political announce-ments are not accepted. In addition, we willnot print notices of honors determined byother publications (e.g., Super Lawyers, BestLawyers, etc.). Notices must be submitted inwriting and limited to 100 words. They areprinted at no cost to members and are subjectto editing. E-mail your notice and high resolu-tion photo (300 dpi) to [email protected]

Kelly E. Marks, an associate withPhillips Lytle LLP, has been namedto the board of the Greater BuffaloChapter of the American Red Cross. Atax attorney, she focuses her practiceon partnership and corporate tax,real estate investment trust tax, andrelated matters. Marks earned herJ.D., magna cum laude, from Albany

Law School of Union University, along with anAdvanced Corporate Tax Certificate from NYU Schoolof Law. She also holds an M.B.A. and a B.S. cum laude,from SUNY at Buffalo.

Pauline C. Will, a founding part-ner of Bennett Schechter Arcuri &Will LLP, has been appointed vicechair of the CommercialTransportation Litigation GeneralCommittee for the ABA’s Tort Trial &Insurance Practice Section. Will, whofocuses her practice on complex tortlitigation, was also appointed to the

ABA’s Law Practice Division, where she will serve onthe Women Rainmaker Career Paths Committee.

Jean C. Powers, a partner inJaeckle Fleischmann & Mugel, LLP,has been honored by Trocaire Collegefor her “volunteer and philanthropiccontributions” to the college. She is apast chair and member emeritus ofTrocaire’s board of trustees. Powers iscurrently a director of the University

Marks

at Buffalo Foundation and also on the board of theGirls Education Collaborative. A former president ofthe Volunteer Lawyers Project, Inc., and the ErieCounty Bar Foundation, among other groups, Powersreceived her B.A., cum laude, and M.A. from St. John’sUniversity, and her J.D., magna cum laude, from SUNYat Buffalo Law School.

Angelo Gambino has joinedBrown Chiari LLC where he willhandle cases involving nursing homenegligence, medical malpractice andgeneral personal injury cases.Formerly with Gibson, McAskill &Crosby, LLP, Gambino received hisJ.D. from Notre Dame, where he wasan editor of its Journal of College and

University Law and also received the John E. KrupnickAward for excellence in trial advocacy. He is currentlyan adjunct professor and mock trial coach at CanisiusCollege.

Diane M. Pietraszewski, anassociate in the labor and employ-ment practice group at JaeckleFleischmann & Mugel, LLP, has beenelected president of the board ofWorking for Downtown, a communi-ty organization committed to sup-porting and revitalizing downtownBuffalo. A frequent lecturer on labor

and employment law topics, Pietraszewski holds a B.A.from SUNY College at Geneseo and a J.D. from St.John’s University School of Law.

David C. Mineo has been reap-pointed by Chief AdministrativeJudge A. Gail Prudenti to a two-yearterm on the board of trustees for theSupreme Court Library at Buffalo.Mineo received his J.D. from TheJohn Marshal Law School and hisB.S. from Canisius College. He is themanager of the Chicago Title

Insurance Company Canada claims center.

Kimberly R. Barnashuk, anassociate with Phillips Lytle LLP, hasbeen named to a three-year term onthe Hamburg Natural HistorySociety, Inc. board of directors.Barnashuk focuses her practice onenvironmental law. A student of theNew York City Environmental LawLeadership Institute, she received her

J.D. from New York University School of Law and herB.A., magna cum laude, from The George WashingtonUniversity. [B]

Hon. Eugene F. Pigott Jr. has beenselected to receive the highest honorbestowed by his alma mater, SUNYBuffalo Law School, and the SUNYBuffalo Law Alumni Association.Pigott will receive the Edwin F.Jaeckle Award at a meeting of theLaw School to be held in conjunctionwith the New York State Bar

Association meeting on January 31, 2014.

The award is given annually to someone who “exem-plifies the highest ideals of the Law School and theLaw Alumni Association and has made significant con-tributions to the school and the legal profession.” It isnamed for Edwin F. Jaeckle, a founding partner of theBuffalo law firm Jaeckle, Fleischmann & Mugel and amajor benefactor of the school.

Governor George Pataki appointed Pigott to the NYSCourt of Appeals in 2006. The jurist has remainedinvolved with the Law School, serving on the Dean’s

Pigott to Receive UBLaw’s Jaeckle Award

Pigott

Will

Gambino

Pietraszewski

Mineo

Powers

Barnashuk

continued on page 8

The need may be based on medical problems, job loss, emotional difficulties, family crises or many other situations. No person or problem is categorically excluded.

If you need assistance – or know a friendor colleague who does – please callKelly Bainbridge at 628-4892. All services are individualizedand completely confidential.


Disaster RecoveryManual Now Availablecontinued from page 1

and medications.

The “60 Minutes” story has portrayed recipients asstealing from the system on the backs of taxpayers.Nothing could be further from the truth. The state-ments made in the report are a disservice to the dis-abled, and CBS should be ashamed for allowing such aone-sided story to air.

– Jeffrey FreedmanBuffalo, NY

Letters to the Editorcontinued from page 2

Afterward, one of my buddies guessed that the thirdtest was for language aptitude and anyone scoring wellwould go to Vietnamese language training. He deliber-ately tanked the test. He was sent to the Presidio inMonterey for six months of German and then to theVaterland. There were no reports of enemy activity inthe Black Forest at that time.

The Jesuit curriculum known as the Ratio Studiorumwas top-heavy with the arts - and hadn’t changedmuch in over 400 years. At Canisius High and CanisiusCollege, I had six years of Latin, four years of Greekand three years of German.

Guess how I did on the test? Thank you, St. IgnatiusLoyola. I ended up in El Paso for eight months ofVietnamese, which was actually not much better thanViet Nam.

But I was really lucky. I came home without so muchas a hangnail, thanks to my mother’s prayers. You canscoff, but I firmly believe that.

After a summer clerkship at the Ohlin Damon firm,they had offered me a permanent job. They held it forme while I was on active duty. A number of World WarII and Korean vets there. Nice people.

So if the price of a ticket to ride in this country wastwo years of my time, I got a really good deal. I sufferedno injuries and had a job waiting.

Not everyone was so fortunate. It took years for thegovernment to recognize that Post Traumatic StressDisorder (PTSD) wasn’t a figment of someone’s imag-ination, and they denied that Agent Orange was thecause of any health problems. The physical and men-tal health issues affecting Viet Nam veterans led to anepidemic of chronic joblessness and homelessness.

I think we lost more people back home than we didover there.

Forty years later, it would be nice to say we learneda lesson. Unfortunately, many of the old mistakes andshortcomings are repeated today. In some respects,things have actually gotten worse.

One advantage, if you can call it that, which we VietNam vets had was the fact that the vast majority of uswere not career soldiers. We were draftees or ROTCguys like me, with a two-year active duty hitch, one ofwhich would very likely be Over There.

Today, a careerist might pull three, four, five or moretours in garden spots such as Iraq and Afghanistan. Thechances for PTSD go up exponentially with each one.In addition to the danger, it disrupts family life andrelationships. National Guard and Reservists can getmultiple call-ups, which are harmful to their real-world job security and advancement.

And what is the thanks of a grateful government?There is a backlog of over 600,000 V.A. claims. And this

President’s Lettercontinued from page 1

continued on page 12

recovery process and allows attorneys to save criticalinformation about clients, employees, finances, insurance, utilities, computer files, passwords, andmuch more. [B]

November 2013 | www.eriebar.orgPAGE 5

George W. Collins, Jr. has beenselected by the Defense TrialLawyers of Western New York toreceive its highest honor, the RobertM. Kiebala Memorial Award andrecognition as the 2013 Defense TrialLawyer of the Year. Collins willreceive the award at the group’sannual meeting on Wednesday,

December 4, from 5:30 to 7:30 p.m., at The Mansionon Delaware.

The award is made each year to an attorney whobest exemplifies the Association’s mission of “promotingthe highest standard of trial conduct through membereducation and advocating the defense position in civilcases with the judiciary and where appropriate in theNew York state legislature.”

Collins is a partner at the Bouvier Partnership LLP,where he serves on the management committee andhas chaired the litigation department. He has 26 yearsof experience as a trial attorney and focuses his prac-tice on personal injury litigation.

Civility AwardThe DTLA will dedicate a civility award in honor of

attorney Neil Sherwood, who passed away in 2012.Sherwood’s “commitment to his profession and volun-teer work as a firefighter made him a model among hisfellow defense trial lawyers,” according to a statement.

The 2013 civility award will go to William J. Kita,a partner at Burgio, Kita, Curvin & Banker. Kita’spractice concentrates on personal injury litigation andhe currently chairs the BAEC’s Judiciary Committee.

The following board members will be honored astheir terms come to a close: Jennifer Adams, Vickey-Marie Brunette, Ryan Mills and Nicole Palmerton(emeritus). President John DePaolo will turn over hisduties to Vice President Kelly Philips and remain on theboard for a one-year emeritus term.

The slate for the election of 2013 officers includes:Vicky-Marie Brunette (Vice President/President-Elect),Thomas Kawalec (Treasurer), Michelle Parker(Secretary) and new board members Colleen Mattreyof Damon Morey, Anthony B. Targia, Assistant CountyAttorney, and Tara Waterman, in-house counsel forTravelers Insurance.

For information about attending the annual meeting,contact any officer or Membership Chair DanielArchilla at 856-0875. [B]

Collins Named Defense Trial Lawyer of the Year

Collins

Lawyers Helping Lawyers

My Name is MaryI will start by saying I never imagined my writing

would be published in this part of the Bar Bulletin.That being said, if my story can help anyone, I am gladto share it.

My name is Mary, and I’m an alcoholic.

My father was an alcoholic. My mother’s father wasan alcoholic. Of my three siblings, two are alcoholics.It’s a shared family trait, like blue eyes or a big nose.Alcoholism is less desirable, though, because it’s achronic, progressive disease. Alcoholism took mygrandfather, and it helped take my father. I hope itwon’t take me, and I hope it won’t take you or anyoneyou love.

My first experiences with alcohol were in junior high,after hours at the playground or in the woods. We’dpass a bottle around, or maybe raise the funds to get asix-pack. It wasn’t long before I started counting thenumber of drinks against the number of people presentand thinking there wasn’t enough to drink. That’s theproblem. When it matters to you, there’s never enoughto drink.

I began going to bars at maybe fifteen years of age,and that seemed fun. Concerts were good, becausethen there would be a bottle of hard liquor, and it did-n’t take as much of that to get drunk. High schoolspilled over into college, with its round of bars and fratparties. Blackouts became frequent, and I would oftenwake up in strange places with strange people, some-times missing articles of clothing. What is it aboutdrinking that makes people want to discard theirshoes? To this day, I see stray pairs littered on the sideof the road.

Well, the day came that I determined I had becomean embarrassment to myself and my family, and Idecided I would not drink any more. At that time, I wasa periodic binge drinker, so it wasn’t as habitual as thecigarettes I smoked every day. I went to a few AA meet-ings, but decided that I wasn’t much of a joiner and itwasn’t for me. I went out, and did not pick up a drinkfor more than 10 years.

As those years passed, I graduated college, went towork, went out on my own and attended law school. Ipassed the bar exam and went back to work as anattorney. People marveled that I didn’t drink, andasked me how I quit. It was easy, I said. I just decidedI’d had enough.

I can’t say why or exactly when I picked up my nextdrink. It may have been partly that the years haddulled the memory of the harsh consequences that putme off it in the first place. Part of me told myself that Ihad only drank to excess because I was young, and Imust have outgrown that by now. Deep down, though,I knew I was kidding myself. I was playing Russianroulette with my life, but I just didn’t care.

One glass of wine for a special occasion once a yearturned into two glasses of wine for a celebration, thena beer while on vacation with friends. Over the next 10

continued on page 8


new federal courthouse in Buffalo well over 10 yearsbefore the approval to fund the structure passedCongress in 2007.

According to Greg Peterson, co-founder of the RobertH Jackson Center in Jamestown, the effort to name thecourthouse for Jackson began in March 2008 when aneditorial comment in the Buffalo News suggested nam-ing the new Niagara Square Courthouse after the lateU.S. Supreme Court Justice.

“Thus began a four-and-a-half year campaign to seeit finally become a reality,” Peterson said.

Early supporters of the name include former StateAssemblyman Rolland Kidder, former LieutenantGovernor Stan Lundine, and Jackson scholar John Q.Barrett. Other key supporters were Congressman BrianHiggins, who introduced a bill to name the courthouseafter Jackson in 2011, and Senators Charles Schumerand Kirsten Gillibrand, who championed the bill beforethe Senate. The bill was signed into law almost a yearago by President Obama.

“The federal courts are often called the guardiansof the Constitution because their rulings protect rightsand liberties guaranteed by it. Jackson’s legal careerand life clearly defined his role as one of its most dedi-cated guardians,” according to James C. Johnson,President and CEO of the Jackson Center .

“Naming the courthouse in honor of Jackson is a fit-ting tribute to the most decorated member of the fed-

eral judiciary to ever have come from the Western NewYork region,” Johnson said.

Speakers for the event included Hon. Robert A.Katzmann, newly appointed Chief Judge, U.S. Court ofAppeals for the Second Circuit; John Q. Barrett,Professor of Law at St. John’s University and Jacksonbiographer; Denise L. Pease, Regional Administrator,U.S. General Services Administration; and Hon. ByronBrown, Mayor of Buffalo.

A personal reflection on Justice Jackson’s life wasgiven by granddaughter Julia Craighill, who character-ized the grandfather she never knew as having “a loveof his hometown of Spring Creek, PA, as well as thegreat outdoors, and a reverence for “what the naturalworld has to teach us.” Jackson returned to SpringCreek for family camping trips each summer, where,Craighill related, “he was the only one who could makeflawless pancakes on an open fire.”

Near the conclusion of the ceremony, Peterson andCraighill unveiled a bust of Jackson that will be dis-played in a place of prominence within the courthouse.An identical bust was presented to United States ChiefJustice John Roberts by Jackson family members dur-ing his visit to the Robert H. Jackson Center last spring.

Born in rural northwestern Pennsylvania, Robert H.Jackson was a country lawyer in Jamestown, who sub-sequently served as Solicitor General, AttorneyGeneral, and as an Associate Justice of the U.S.Supreme Court. Following World War II, JusticeJackson was selected by President Truman to be theChief U.S. Prosecutor at the International MilitaryTribunal, Nuremberg, where he led the trials againstsenior Nazi leadership for crimes against humanity,war crimes and crimes of aggression. His writings andactions have come to personify the American ideal offairness and justice for all.

The Robert H. Jackson Center was established to“honor and advance Justice Jackson’s remarkable legacy,pursue the relevance of his life’s work, and to provide aneducational facility” for those purposes. Visitwww.roberthjackson.org for further information. [B]

Federal Courthouse Officially Named for Justice Robert H. Jackson continued from page 1

Trial Advocates HoldConstitution Day Lecturefor Students In 1952, Congress passed a law to commemorate

“the formation and signing, on September 17, 1787, ofthe Constitution of the United States.” The BuffaloChapter of the American Board of Trial Advocates(ABOTA) recently commemorated Constitution Daywith an inaugural James Otis Lecture in the Robert H.Jackson Federal Courthouse on Niagara Square.

Ninety students from the Emerson School ofHospitality, Hutchinson Central Technical, and EarlyMiddle College High Schools in Buffalo were chosen toparticipate in the day’s events. Additional students fol-lowed the proceedings through live streaming of theevent to the schools.

Hon. William M. Skretny, Chief Judge of the UnitedStates District Court for the Western District of NewYork, Gregory L. Peterson, co-founder of the Robert H.Jackson Center in Jamestown, New York, and MichaelF. Perley, ABOTA Buffalo Chapter past president andcurrent membership chair, were the honored speakers.The presentation centered on Justice Jackson’s famousdissent in Korematsu v. United States and how thethemes of that opinion reverberate today.

During lunch, prepared by students at EmersonHigh School and enjoyed in the jury selection room atthe courthouse, students participated in breakout ses-sions to further discuss the lecture topics. Additionalmoderators for the breakout sessions were: FederalMagistrate Judge Hon. Hugh B. Scott, FederalMagistrate Judge Hon. Jeremiah J. McCarthy,Appellate Division Associate Justice Hon. Erin M.Peradotto, Buffalo City Court Judge Hon. Susan M.Eagan, Jeffrey T. Bagley, Esq., Law Clerk to the Hon.William Skretny, Barry L. Radlin, Esq., ADR ProgramAdministrator, USDCWDNY, University at BuffaloSchool of Law student Sarah E. Siracusa, and Buffaloteachers Lynn M. Garcia, Jessica Giambrone, TomGiordano, and Margaret Lattimer.

ABOTA presented the program “as part of its coremission to preserve and protect the Constitution,including the Seventh Amendment right to trial by juryin civil cases,” according to Buffalo Chapter presidentHilary Banker. The James Otis Lecture was intended tohelp participants “remember the origins of our liberty.”

Who is James Otis?On February 25, 1761, James Otis, Jr., a 37-year-old

lawyer from the small hamlet of Barnstable, stepped

up to make an argument before the Supreme Court ofJudicature in the Massachusetts Bay Colony sitting inBoston. Otis argued that the renewed Writs ofAssistance, which allowed the Crown or its agents tosearch any subject’s home or property for contrabandor untaxed goods without judicial oversight or justcause to believe a crime had been committed, violatedthe Natural Rights of Englishmen. His argument wasfounded on the principle that not even the King wasabove the law that protected the rights of all citizens. Itwas the first time an argument such as this had everbeen made in a courtroom.

A young lawyer named John Adams sat enraptured inthe back of the courtroom, initially taking down everyword of Otis’s oration. When he could no longer keepup, he summarized the balance of Otis’s brilliant five-hour argument. Adams left the courtroom that dayconvinced that all who heard Otis were “prepared totake up arms against the Writs.” Years later, Adams



I was formally introduced to theCatholic faith in the Fall of 1957when I was baptized at CorpusChristi Church on the east side ofBuffalo. I have no independent recol-lection of my christening but my par-ents told me later that I did not cometo the faith quietly or without somephysical resistance.

Shortly thereafter, we moved further east toKaisertown, where I received my formal education,which was steeped in Catholicism under the loving,chalk-dusted and sometimes formidable hands of theFelician Sisters at Saint Casimir’sschool. We began every school daywith 8:00 Mass and Communion,but I recall one day right aftersummer vacation when FatherPastor turned all the kids awayfrom the altar, saying that he did-n’t recall seeing so many of us atMass over the preceding couple ofmonths. I suppose he was con-cerned that we were coming toCommunion with souls that hadbeen soiled by a summer’s worth of shenanigans andother misadventures. So we all marched to confessionand were safely returned to God’s and Father Pastor’sgood graces.

As some of you may recall, early school life in the six-ties was a little stricter and a lot more regimented thanit seems to be today. After all, when you had one mid-dle-aged or older sister in charge of no fewer than 35kids in every class eight hours a day, five days a week,how could it have been anything but strict and regi-mented? Every morning, like clock work, when sisterwalked in the room, we would all get up in unison andgreet her with, “Niec Benje Pochfalowny JesusChrystus, Dzie Dobre Siostra,” to which she wouldreply “Na wieki wiekow, Amen,” which, loosely trans-lated, meant “Sit down, be quiet and open up yourBaltimore Catechisms.”

You may remember those were the booklets thattaught us the principles of our faith by the process ofmemorization of important facts and filling in the

blanks. ”God is Love.” “God created me to know, loveand serve him,” and so on. But the thing about teach-ing abstract concepts to young children in so concretea way was that sometimes things would get lost intranslation. I recall my kindergarten classmate, MartinBogoniewski, being called upon by Sister Carlita tolead us in the Hail Mary, and he began the prayer withthe phrase, “Hail Mary, full of grapes.” I don’t know ifhe had misheard it when he first learned it, or maybehe misunderstood the nature of the Blessed Mother’sintercession at the wedding feast at Cana, but, aftersuppressing a smile, Sister Carlita, who was a verysweet lady, gently but firmly set Martin straight.

I had a rather short-lived and inauspi-cious career as an altar boy in the thirdgrade. My biggest obstacle was myinability to grasp the Latin prayers.As some of you may recall, Masses backthen were said entirely in Latin and thepriest faced the altar rather than theparishioners. For the longest time, theolder altar boys had me believing that“et cum spiritu tuo” was the rectoryphone number and that “Agnus Dei” wasthe church secretary.

But instead of actually learning the prayers, I wouldbase my responses on the vocal cadence and intonationof the priest and, as I found out, it was no blueprint forsuccess. It was my first and last solo service on thealtar, 6:30 Mass with Father Stan, who was not themost congenial fellow. I picked up the cluster of bellsand started wailing away like Quasimodo. When I putthem down, there was dead silence. Then Father Stanslowly and deliberately turned his head backward overhis left shoulder, not unlike the bronze statue, Talos,who comes to life in the movie, Jason and theArgonauts. And he shot me a look that almost turnedme to stone. I spent the rest of that morning at thechalk board writing “I shall not ring the bells duringthe Pater Noster,” which, I found out the hard way, wasthe Our Father.

Like most parish families, our family was reasonablyobservant of church tradition and ritual. Though myfather, despite having been taught by the Fransiscansat Saint Francis High School, was somewhat of a

doubting Thomas. More accurately, a doubtingStanley. I recall him saying that he had difficultyaccepting the concept of transubstantiation. After I fig-ured out what he was talking about, it seemed that hebelieved that when the priest re-enacted the LastSupper during the Consecration, the bread and winewere not actually transformed into the body and bloodof Christ. To him, it was just a symbolic exercise. WhenI got a little older and a little bolder, I took him to taskand said that when people go to the movies, in order toappreciate what they’re seeing, they are supposed toengage in the willing suspension of disbelief. Well, withthe Mass, you have to take it a step further and not justsuspend your capacity for disbelief but actively engageyour capacity for belief. That’s why they call it faith.

All indications to the contrary notwithstanding, myfaith has always been an important part of my life. Iam firmly convinced that my good fortune, both per-sonally and professionally, is no happy accident orseries of random coincidences. And every Sunday at8:00 a.m., usually here at the Cathedral, I thank Godfor my blessings, and as I look to the week ahead, Iusually pray for patience, understanding and a gooddose of humility. Occasionally, when I have a particu-larly challenging case or high profile matter where Ithink that I am being judged, my simple and ferventprayer is “Dear God, help me not to screw this up.”

If you’re wondering what, if any, message can betaken from my little march down memory lane, it issimply that our faith is a gift that we must cherish andnurture, and that while our individual journeys in faithmay not always be a smooth sail, what with occasionalmisunderstandings, missteps or doubts, God is alwaysthere to protect and guide us. All we have to do is toactively engage our capacity for belief. [B]

2013 Red Mass Remarks of Hon. Thomas P. Franczyk

“Dear God,

help me not

to screw this up.”

Franczyk

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PAGE 8

Advisory Council, judging moot court competitions andserving as a guest speaker in several classes.

Born in Rochester, Pigott served on active duty in theArmy, stationed in Viet Nam, after graduating fromLeMoyne College. He then attended SUNY Law Schooland practiced with the firm of Offermann, Fallon,Mahoney & Adner following his graduation. He wasappointed Erie County attorney in 1982 and served inthat position until 1986, when he became chief trialcounsel for the firm of Offermann, Cassano, Pigott &Greco.

Pigott was appointed to the New York State SupremeCourt in 1997 and thereafter was elected to a full 14-year term. In 1998, he was designated to the AppellateDivision, Fourth Department, and was appointed pre-siding justice in 2000. His nomination to the Court ofAppeals was confirmed by the state Senate in 2006.

BREACH OF WARRANTYIn Haag v. Hyundai Motor America (12-CV-6521L,

9/10/13), plaintiff brought a putative class actionalleging that the defendant misrepresented informationregarding brake performance and a claimed “secretwarranty.” Among other holdings, the court (i) granteddefendant’s motion to dismiss plaintiff ’s claim underN.Y. General Business Law §349 because the claimwas based on “information and belief” allegations con-cerning statements that may or may not have beenmade by defendant’s agents; (ii) denied defendant’smotion to dismiss plaintiff ’s breach of express warran-ty claim, finding that the alleged defect may fall underdefendant’s “materials and workmanship” warranty;and (iii) dismissed plaintiff ’s implied warranty claimfor lack of privity, rejecting plaintiff ’s argument thather claim that brakes may wear out faster than expect-ed fell within the “things of danger” exception to theprivity requirement for such claims.

CIVIL RIGHTSIn East Amherst Plumbing, Inc. v. Thomson (12-CV-

195A, 9/27/13), the plaintiff subcontractor on a termi-nated state construction project sued under §1983,alleging that the state’s facilities manager and otherdefendants took various improper actions with the goalof deterring non-union contractors like plaintiff frombidding on state contracts. The court granted defen-dants’ motion to dismiss, holding among other thingsthat (i) plaintiff ’s “class-of-one” equal protection claimwas invalid because such a claim is unavailable whenthe government makes discretionary decisions regardinggovernment employment, (ii) plaintiff ’s procedural dueprocess claim was invalid because plaintiff ’s claimed“property interest” was at most a breach of contractclaim, and (iii) plaintiff ’s First Amendment claim wasinvalid because defendants’ alleged actions did not con-stitute a direct and substantial interference with theright of plaintiff ’s employees to remain non-union.

years, the occasions got closer and closer together, untilI was drinking every day. I told myself I was relaxing,and it was good for me to let go of stress. That was alie. My drinking had become a mental obsession thatwas more important to me than anything - even myfamily and friends.

This time, I couldn’t stop. I tried quitting cold turkey,limiting it to weekends, having one drink an hour, justdrinking beer, just drinking hard liquor and the like. Idid not want to go to AA, because then I would have tostop drinking. At the same time, I knew I couldn’t go onliving the way I was.

One Sunday morning, I spoke with a friend afterchurch. It was the only place I knew him from, but itturned out he was also an alcoholic. An alcoholic inrecovery. I went right from church to a meeting thatmorning, feeling a mixture of excitement, resignationand relief. It had to be done. I couldn’t do it by myself.I gave up and went in.

I have not had a single drink since that day. I givecredit for that to the program of Alcoholics Anonymous,and to the higher power I call God. I could not do it bymyself. I tried. When I admitted that, asked God forhelp, and joined a group of people committed to help-ing one another stop drinking, I could do it.

I encourage anyone who thinks they may have aproblem with drinking to seek that help. Go online.Find a meeting. Call the Lawyers Helping Lawyerscommittee of this Bar Association. There are other peo-ple out there, people much like you, who would be gladto help. Please reach out. A better life is waiting.

If you or a colleague are struggling with substanceabuse, please call 852-1777 for completely confidentialassistance. [B]


Pigott to Receive UBLaw’s Jaeckle Awardcontinued from page 3

western district case notes

By Paul K. Stecker and Kevin M. Hogan

DEBT COLLECTION/CLASS ACTIONSIn Hallmark v. Cohen & Slamowitz, LLP (11-CV-

842S, 9/16/13), plaintiff alleged that defendants vio-lated the Fair Debt Collection Practices Act, 15 U.S.C.§1692, by including $140 allegedly paid for a court fil-ing fee in the amount owed stated in a demand lettersent to plaintiff. The court denied defendants’ motionfor judgment on the pleadings, finding that defendantshad not adequately established that they were author-ized to collect the filing fee. The court proceeded togrant plaintiff ’s motion for class certification, findingthat plaintiff met each of the requirements for classcertification.

EXPERT WITNESSESIn Auther v. Oshkosh Corp. (09-CV-527(A)(M),

9/16/13), plaintiff, a U.S. Marine, was injured duringtraining when he was struck by a rim that separatedfrom a tire after the wheel assembly was ejected from atruck. The magistrate judge granted defendant’sDaubert motion to exclude the proposed testimony ofplaintiffs’ expert witness, finding that (i) the expert’stestimony was not necessary to explain how the tireand rim were ejected (namely, because of a split in thebrake chamber diaphragm) because that issue was notin dispute and (ii) the expert’s testimony that the brakechamber diaphragm was defectively designed was notreliable because it was based solely on other experts’reports, unaccompanied by any independent testing orresearch. [B]

Lawyers Helping Lawyers

My Name is Marycontinued from page 5

“Finish each day and be done with it. You have done what you could; some blundersand absurdities have crept in; forget them as soon as you can. Tomorrow is a new day;you shall begin it serenely and with too high a spirit to be encumbered with your old nonsense.”

~ RALPH WALDO EMERSON

W o r t h Q u o t i n g


ernment and the FISA court, neces-sity equals relevance.

It has been reported that Verizon,AT&T and Sprint have receivedSection 215 orders. To date, no tele-phone company has brought anaction in the FISA court challenginga Section 215 order. Thus, at thistime, only government attorneyshave argued before the FISA courtconcerning the scope and constitu-tionality of Section 215.

Congress has known about the bulk collection ofmetadata for some time but has declined to rein in theSection 215 surveillance. But some members ofCongress are critical of the program. Rep. Jim

Sensenbrenner (R-Wis.), one of the Patriot Act authors,criticized the broad relevance standard, stating that“It’s like scooping up the entire ocean to guarantee youcatch a fish.”

In mid-September 2013, the FISA court ordered the government to identify by October 4 which court opinions on the meaning and constitutionality ofSection 215 can be released to the public.(http://www.uscourts.gov/uscourts/courts/fisc/misc-13-02-order-130813.pdf) The order came in responseto a motion filed by the ACLU and Yale Law School’s

Media Freedom and AccessInformation Clinic. The ACLU papersasked the court to disclose whether ithas revisited its earlier decisions in thewake of the U.S. Supreme Court rulingin U.S. v. Jones, the GPS tracking case.The ACLU also asked the courtwhether it has considered the constitu-tionality of the gag order that prohibitstelephone companies from disclosingthat they have been ordered to turnover records under Section 215.

In a future column, we will discuss anumber of pending lawsuits that challenge the legalityof the bulk collection of metadata under the very broadinterpretation of relevance under Section 215. [B]

cyberlaw: the brave new e-world

By Anne F. Downey

Necessity Equals Relevance

“It’s like scooping

up the entire ocean

to guarantee you

catch a fish.”

This is the second column in a series about theForeign Intelligence Surveillance Act (FISA). Futurecolumns will explore related topics, including situa-tions where FISA court warrants are not needed, argu-ments about the constitutionality of surveillanceauthorized by FISA court warrants, and the status ofpast and pending legal challenges.

In last month’s column, we discussed backgroundinformation concerning the Foreign IntelligenceSurveillance Act (FISA) court. This month, we will lookat the legal issue at the heart of the court’s rulings onsurveillance activities under Section 215 of the PatriotAct, 50 U.S.C. 1861.

Under Section 215, the court has authorized theNational Security Agency (NSA) to gather telephonemetadata on your calls, my calls, and the calls of mil-lions of Americans. Metadata includes the phone num-bers of the caller and person called, and the time andlength of the call. It does not include the content ofcalls.

Every 90 days, Justice Department attorneys requestthat the FISA court renew the government’s authoriza-tion to collect telephone metadata from telephone com-panies. Once such orders are granted (as they havebeen continuously since 2006), a government analystseeks permission to proceed with surveillance from oneof 22 authorized officials. After permission is granted,counterterrorism analysts access the metadata. An ana-lyst starts with a foreign number and looks at the num-bers connected to it. Connected numbers are searchedthrough reverse phone directories and other databases.Telephone numbers of particular interest are fullyinvestigated, with a review of all calls to and from anumber, and sometimes all calls to and from thosenumbers. The legal standard for obtaining permissionto carry out the surveillance is the government’s asser-tion of a “reasonable, articulable suspicion” that thestarting phone number is associated with an interna-tional terrorist organization.

In order to obtain a Section 215 order from the FISAcourt, the government must show that the metadatabusiness records are “relevant” to an international ter-rorism, counterespionage or foreign intelligence “inves-tigation.” There has been much criticism about thegovernment’s broad stance as to what records are “rel-evant” to an “investigation.” As interpreted by the FISAcourt, your calls and my calls are relevant. In otherwords, all calls are relevant.

Likewise, the word “investigation” has been inter-preted broadly. No specific plot or threat is required.The records need only be relevant to the “investigativeprocess.”

In a FISA court decision issued August 29, 2013,Judge Claire V. Eagan reauthorized Section 215 bulk collection of telephone metadata for another 90-day period. (http://www.uscourts.gov/uscourts/courts/fisc/br13-09-primary-order.pdf//). Judge Eagan statedthat, according to the government, no government vio-lations of the Section 215 surveillance rules hadoccurred during the prior 90-day period. We know,however, that in 2009 the FISA court reprimanded theNSA for violating the rules and misleading the courtabout its use of metadata. Judge Eagan indicated thatsuch violations have been resolved.

As to the “relevance” standard, Judge Eagan wrote“[T]he government may meet the standard underSection 215 if it can demonstrate reasonable groundsto believe that the information sought to be producedhas some bearing on its investigations of the identifiedterrorists organizations.” She cited an earlier FISAcourt ruling that “bulk collection is necessary for [the]NSA…As a result, it is this showing of necessity that ledthe Court to find that ‘the entire mass of collectedmetadata is relevant….’” Thus, according to the gov-

FIGURING OUT FAMILYA non-biological, non-adoptive parent does not have

standing to seek visitation when a fit biological parentopposes it. Equitable estoppel was held to not be appli-cable in such situations. (In the Mtr. of White v. Wilcox,__AD3rd__, 4th Dept., 9/27/13, # 903)

The Fourth Department recently upheld the awardof joint custody to separated parents with the splittingof primary physical custody between them. (In the Mtr.of Allen v. Button, __AD3rd__, 9/27/13, # 927)

The breakdown in the father’s visitation scheduleresulting in increased child rearing expenses was a suf-ficient unanticipated change of circumstances to per-mit (the mother) to seek increased child supportdespite an incorporated but not merged separationagreement. (In the Mtr. of Gallagher v. Gallagher,_AD3rd__, 9/27/13, # 951)

LATE WON’T RATEA motion to serve a late Notice of Claim on a munic-

ipality was denied where the notice was served 10months after the accident, and other requirementswere not satisfied. This case is a good, concise review ofthe law in this area. (Andrews v. Long Island RR et al.,__AD3rd__, 2nd Dept., 10/2/13) See also, Claud etal., v. Babylon Un. Fr. Sch. Dist.,(__AD3rd__, 2ndDept., 10/2/13).

Failure to respond to defendant’s demand for a com-plaint resulted in dismissal of the action. (Dunlop v. St.Leo the Great R.C. Church et al., __AD3rd__, 4thDept., 9/27/13, #865)

PONDERING PARTITION WARSOur Fourth Department recently held that counter-

claims asserting an unwritten domestic partnershipagreement should not have been dismissed in a caseseeking partition of real property. (Ramos v. Hughes,__AD3rd__, 9/27/13, # 866) See also Carter et al., v.Johnson et al.,(__AD3rd__, 2nd Dept., 10/2/13) .

TO BE OR NOT TO BE IN “CUSTODY”Defendant’s statements were held to be not sup-

pressible because she was not “in custody” when thestatements were given. The court noted the voluntarynature of the defendant’s interactions with the police.(Peo. v. Vargas,__AD3rd__, 4th Dept., 9/27/13, #899)

PARSING PSYCHIATRIC MALPRACTICEDenial of defendant’s summary judgment motion

was upheld where plaintiff ’s decedent committed sui-cide after being released from a hospital psychiatricward. (Mazella v. Beals and Mashinic,__AD3rd__, 4thDept., 9/27/13, # 931)

SECTION 240 SENSITIVITIESPartial summary judgment as to liability was grant-

ed where plaintiff was injured by a falling metal platewhile working on a scaffold. (Signs v. Crawford et al.,__AD3rd__, 4th Dept., 9/27/13, # 938)

However, see Gaffney v. Norampac Industries, Inc. (__AD3rd__, 4th Dept., 9/27/13, # 992), where afalling seal hit plaintiff and the sec. 240 claim was dis-missed.

SLIP TIPS AND STUMBLE BUMBLESOur Fourth Department dismissed the cause of

action against an abutting landowner where the plain-tiff slipped on a municipal sidewalk and there was noordinance imposing liability on abutting property own-ers. (Panzica v. Fantauzzi et al.,__AD3rd__, 9/27/13,# 863)

Clear evidence of a “storm in progress” required dis-missal of plaintiff ’s sidewalk slip-and- fall case. (Gloverv. Botsford, _AD3rd__, 9/27/13, # 959)

Plaintiff ’s claim that she slipped on defendant’s stepdue to slippery paint was dismissed in light of evidencethat there were no prior slips on the steps and that thesteps had been painted with non-slip paint. (Flynn v.Haddad, __AD3rd__, 4th Dept., # 991)

Lack of constructive notice of an icy conditionrequired dismissal of this slip-and-fall claim. (Cruz v.Rampersad et al., __AD3rd__, 2nd Dept., 10/2/13)

Bar Association of ErieCounty ProfessionalEthics Opinion

The BAEC’s Professional Ethics Committee isavailable to respond to your ethics questions andissues facing the legal community. This Committee,chaired by Howard B. Cohen, cannot, however,consider complaints about unethical practices, orany grievance matters. They are available to enter-tain inquiries about whether or not prospectiveactivities of counsel fall within accepted guidelines.Following is an opinion of the Committee issued inresponse to an inquiry from the BAEC’s RealProperty Committee. For further information,please contact Howard at 854-4300 [email protected].

Opinion No. 13-04Topic: Confidential Information; Release of File of

Former Client to New Attorney.

Digest: With the consent of the former client, alawyer must turn over the former client’s file to thatclient’s new attorney.

Rules: 1.4; 1.6; 1.9; 1.14; 1.15; 1.16

Question: (a) Must a lawyer turn over the fileincluding an executed will of a former elderly client tothat client’s new attorney if so instructed by the formerclient, even if the lawyer believes that the former clientis being influenced to change the will in favor of theclient’s caretaker? (b) May a lawyer disclose non-con-fidential adverse information about a former client tothe client’s new attorney? (c) May a lawyer discloseconfidential information of another client to the formerclient’s new attorney?

Facts: A lawyer received a request from an attorneyadvising the lawyer that he was the new lawyer for aformer elderly client and that all the former client’sfiles, including wills, should be turned over to the newlawyer. It is not clear whether the new attorney fur-nished a written authorization from the client author-izing the transfer of all the files including the wills orwhether the inquirer has had any direct communica-tions with the former client about any of the issuesraised.

The former lawyer has learned from “concerned per-sons” on a non-confidential basis that the client’s care-taker has “allegedly” influenced the client to changethe existing 2008 will held by the lawyer. The caretakerhas a history of substance abuse and a long history ofcriminal convictions. In the past, the lawyer repre-sented the caretaker in Family Court and in local crim-inal courts, but no longer represents the caretaker.

The lawyer has also learned from non-clients thatthe caretaker has stolen money from the client in thepast, used the client’s credit cards and is presently inpossession of the client’s check book. The lawyer is alsoaware of other wrongdoings of the caretaker, as well asorders of protection issued by the Erie County Courtrequiring both the caretaker and his spouse to “stayaway from the client.”

Applicable Rules: The answer to the questionsbased upon the facts are found in Rules 1.4, 1.6, 1.14,1.15 and 1.16 of the Rules of Professional Conduct (the“Rules”). Rules 1.4(a)(4), 1.15(c)(4) and 1.16(e)require a lawyer to turn over to the client that whichbelongs to the client. Rules 1.6 and 1.9 prohibit alawyer who possesses confidential information learnedduring a consultation with a client from disclosing thatinformation without the client’s informed consent orthe disclosure is impliedly authorized to advance thebest interest of the client. Rule 1.14 permits a lawyerwho reasonably believes the client has diminishedcapacity and is at risk of substantial physical, financialor other harm unless action is taken, to take reasonablynecessary protective action.

OpinionSummary: This inquiry raises several issues. First,

the lawyer is required to turn over the entire file,including an executed will of the former client, to thenew attorney if he or she is so instructed by the formerclient in writing, assuming the former client does not


citationsBy Jeff Spencer



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is hailed as an improvement. Plus bonuses are handedout for processing the easy cases to improve thebureaucratic scorecard, while the more complex claimscan languish for a couple of years.

One of the worst cases of ingratitude by the numberswas chronicled in Esquire Magazine a few months ago.It was the story of the Navy Seal who actually shotOsama bin Laden. While the President, Vice President,Secretary of Defense, Secretary of State and Director ofthe CIA were all risking rotator cuff surgery pattingthemselves on the back for a job well done, this manwas literally the boots on the ground.

After 16 years of active duty, the last decade as a Sealconducting over two hundred missions a year, he wasburned out and didn’t re-up. The deal is you have toserve 20 years for your pension and other retirementbenefits, so he gets pretty much zip. Have a nice day,sailor. That just doesn’t seem right.

Chipping away at our military monolith is like tryingto change Ayers Rock into gravel. That doesn’t mean itisn’t worth a try.

In the meantime, there are some opportunities foreach of us to use our talents to help veterans as theytransition to civilian life. Joe Morath and David State,Co-chairs of the BAEC Veterans’ Committee, canalways use more help. Judge Robert Russell’s VeteransCourt is an effort that has been successful for severalyears and has been instituted in other areas. And therecently opened Veterans One-Stop Center at 1280Main Street offers another possibility to be of service.

No one can solve all of the problems confronting ourveterans, but tackling one of them at a time would beof help.

Every morning, my daughter Brigid calls me,undoubtedly to make sure my feet have hit the floor.On November 11, the call starts “Happy Veterans Day,Dad. Thank you for your service.” That covers it forme. I’m good. I wish every vet could say that. [B]

President’s Letter continued from page 4

Are You An AttorneyStruggling With

Depression?If so, you’re definitely not alone. A recent

Johns Hopkins study of 108 occupationsfound that lawyers topped the list of thosewho suffered from depression. Attorneyswere found to suffer from depression at arate of four times that of the general popu-lation.

Depression is a treatable illness and theright combination of medications and ther-apies can significantly improve the qualityof life for those who suffer from it.

Help and support are just a phone callaway. The Lawyers with DepressionSupport Group meets on a weekly basis toshare stories and fellowship. The groupmeets every Friday (except holidays). Seethe calendar on page 24 for meeting dates,times and locations.

If you or a colleague are struggling withdepression, there is no need to suffer insilence. For further information, visitwww.lawyerswithdepression.com or contactDaniel T. Lukasik at 847-1010. All calls arestrictly confidential. We invite you to join usand share your story.


B E G R E E N — R E C Y C L E Y O U R B U L L E T I N

sumptively entitled to access to all his files possessed byhis former attorney. The opinion was influenced bySage Realty Corp. v. Proskauer Rose Goetz &Mendelsohn, 91 N.Y.2d 30,34 (1997), which adoptedthe majority rule that upon termination of an attorney-client relationship, a client is “presumptivelyaccord[ed]...full access to the entire attorney’s file on arepresented matter with narrow exceptions.”1

NY State 766 was based on two provisions in theCode of Professional Responsibility, DRs 9-102(c) and2-110(A)(2), which are now comparably set forth inRules 1.15(c)(4) and 1.16(e). Rule 1.15(c)(4) provides

that “a lawyer shall...promptly pay or deliver to theclient or third person the funds, securities, or otherproperties in the possession of the lawyer that client orthird person is entitled to receive.” Rule 1.16(e), whichaddresses termination of representation, provides, inrelevant part:

A lawyer shall take steps, to the extent reasonablypracticable, to avoid foreseeable prejudice to the rightsof the client, including...delivering to the client allpapers and property to which the client is entitled....

These provisions of the current Rules support theconclusion in NY State 766, just as the correspondingprovisions of the prior code did. Thus, the former clientis presumptively entitled to access the former client’sfiles possessed by the inquirer, subject only to theinquirer’s ability, as to particular materials, to make asubstantial showing of good cause to refuse clientaccess.

According to the facts described by the inquiringattorney, the request for the former client’s files camenot from the former client directly but from a newlawyer claiming to be acting on behalf of the formerclient. To the extent that the inquiring attorney hasreason to question whether the new lawyer’s state-ments accurately reflect the former client’s actualwishes regarding the file or the engagement of the newlawyer, the inquirer may and should require adequateconfirmation of the former client’s instructions. (Rule1.6)

In addition, if the lawyer for the former client rea-sonably believes that such client has diminished capac-ity or that the instructions to turn over the files to anew attorney may not be fully understood by thatclient by reason of diminished capacity, Rule 1.14(b)becomes applicable. That Rule provides:

“(b) When the lawyer reasonably believes that theclient has diminished capacity, is at risk of substan-tial physical, financial or other harm unless action istaken and cannot adequately act in the client’s owninterest, the lawyer may take reasonable necessaryprotective action, including consulting with individ-uals or entities that have the ability to take action toprotect the client and, in appropriate cases, seekingthe appointment of a guardian ad litem, conservatoror guardian.”

On the other hand, if the lawyer does not reasonablybelieve that the former client has diminished capacity,the requirements of paragraphs 9 and 10 above areapplicable.

Non-Confidential Information: The informationreceived from concerned persons presumptively wasgiven to the lawyer for the purpose of protecting theformer client. Assuming that it was not learned in thecourse of the representation of the former client, itwould not fall within the definition of confidentialinformation contain in Rule 1.6(a) and may be dis-closed to the new lawyer and to the authoritiesinvolved in enforcing the orders of protection or other-wise protecting the interests of the former client.

Confidential Information: The more difficultquestion is the confidential information learned fromthe caretaker who is also a former client. The lawyer’sprofessional responsibilities are more complicated. Rule1.9(c)(2) addresses a lawyer’s obligation to refrainfrom revealing confidential information of a formerclient.

Rule 1.9(c)(2) provides that “[a] lawyer who has for-merly represented a client in a matter or whose presentor former firm has formerly represented a client in amatter shall not thereafter: ... reveal confidential infor-mation of the former client protected by Rule 1.6except as these Rules would permit or require withrespect to a current client.”

Rule 1.6 defines “confidential information” as con-sisting of information gained during or relating to therepresentation of a client, whatever its source, that is(a) protected by the attorney-client privilege, (b) likelyto be embarrassing or detrimental to the client if dis-closed, or (c) information that the client has requestedto be kept confidential. “Confidential information”does not ordinarily include (i) a lawyer’s knowledge oflegal research or (ii) information that is generallyknown in the local community or in the trade, field orprofession to which the information relates.


have diminished capacity. Instruction from the attor-ney alone is not sufficient. This is a mixed question oflaw and ethics, and beyond the jurisdiction of the com-mittee. Second, the lawyer may discuss non-confiden-tial information concerning the caretaker learned fromconcerned persons. Third, the lawyer may not revealinformation learned during the course of the represen-tation of the caretaker, without the caretaker’s consent.

Files and Will: This phase of the inquiry is nor-mally straightforward and controlled by NY State 766(2003), which concluded that a former client is pre-

Bar Association of Erie County Professional Ethics Opinioncontinued from page 10



Recently I read an article that changed my behavior.The article, “Impactful Distraction,” appeared in theAugust 24 edition of Science News. Available online athttps://www.sciencenews.org/article/impactful-dis-traction, the article convinced me that it was absolutelytime to put down the phone when I’m driving. I’vealways used a headset or Bluetooth, and I like to thinkthat I’ve been very careful. But no matter how carefulI’ve been - or think I’ve been - the bottom line is thatdriving and talking on the phone, let alone texting, issimply not safe. Period.

New York state has one of the toughest anti-textingand driving provisions in the country. Given that ourstate has already clamped down (five points, $150minimum fine) on texting when driving, drivers in NewYork, and the lawyers who represent, know and lovethem, it should be obvious. But when I read some ofthe statistics included in this article, I literally stoppedjustifying my mobile phoning habits and quickly putthe phone down.

One of the compelling arguments in the article sug-gests that while we think we’re multitasking, we’re not.We’re toggling. Professor Paul Atchley, a cognitive psy-chologist at the University of Kansas, Lawrence, sug-gests that people don’t multitask as they think. Theytoggle between tasks. Further, according to the ScienceNews article, which cites Dr. Atchley’s research, “whena conversation becomes more dense and complicated,cognitive demand devoted to it increases, which meansthat less brainpower is available for driving.Considered this way, do you really want to be drivingnext to someone whose full attention is focused some-where besides the road, even for a small burst of time?”

I reached out to Dr. Atchley for clarification; here ishis response:

“Try the following. Get a timer or a clock with a sec-ond hand. When you are ready, recite aloud as quicklyas possible the alphabet to the letter L and then switchquickly and count to the number 12. I will wait... Howlong did that take? About five seconds or so? Good.Now, let’s multitask. Do the same thing EXCEPT now

is intoxicated. According to the NEJM article, “Currentdata suggest that each year, at least 1.6 million trafficaccidents (28 percent of all crashes) in the UnitedStates are caused by drivers talking on cell phones ortexting. Talking on the phone causes many more acci-dents than texting, simply because millions more driv-ers talk than text; moreover, using a hands-free devicedoes not make talking on the phone any safer.”

These statistics have absolutely secured my atten-tion.

Since I’ve become a self-proclaimed evangelist(aren’t all evangelists self-proclaimed? But I digress!)on this issue, I’ve been asked why phone conversationswhile driving are any more dangerous than conversingwith someone who’s actually present in the car. Dr.Shin’s research indicates that cognitive studies haveshown - as Dr. Atchley has stated - we are unable tomultitask. Further, as we attempt to drive and talk,neurons are diverted differently depending on whetherwe are talking on the phone or talking to a passenger.Dr. Shin explained that “when patients aren’t con-vinced, I ask them, ‘How would you feel if the surgeonremoving your appendix talked on the phone - handsfree, of course - while operating?’” This hypotheticalcaptures the essence of the problem, namely the chal-lenge of concentrating fully on the task at hand whileengaged in a phone conversation.

In a recent editorial for Real Clear Politics, Dr.Atchley wrote: “In the current debate about the risks oftechnology behind the wheel, it is easy for us to under-stand the risk of not looking at the road or not holdingonto the steering wheel, so we focus on acts like textingand driving and give a pass to hands-free technologies.But it is as much about the brain as it is about the eyesor the hands. There are too many cases where a driverreports ‘I was looking straight ahead but I didn’t seethe car,’ and too much data from over half a century ofcognitive science for us to ignore the fact that we needour brains to drive. And when we tax our brain, evenwith something simple like switching back and forthbetween reciting letters and numbers, the limits of ourbrain get exposed.”

I have no intention of giving up my mobile phone.But I’m not driving and using it simultaneously anymore. Please join me. We’ll all be safer. [B]

lost in (techno) spaceBy Martha Buyer

It’s Time to Reconsider Multitasking When DrivingBecause You’re Not Multitasking, You’re Toggling

you should recite a letter and then a number and thena letter and so on. “A, one, B, two...” Go ahead, I willwait... considerably longer this time. I suspect this timeyou started to slow down around the letter F or so. Asyou switched back and forth between two tasks youknow extremely well, you had to keep track of eachtask. Your memory got fuzzy, you slowed down, youmade mistakes, and maybe you even gave up andsheepishly looked around to see if anyone was watch-ing. If you completed the task, it took you much longerto complete.”

What about hands-free? The fact is, according toDaniel Simons, a psychologist at the University ofIllinois at Urbana-Champaign, mobile phone conver-sations impede what a driver sees and processes. Whilemobile phone conversations aren’t the only reason forthis, the notion of driving home, for example, and notremembering the trip is not foreign to most of us. Sowhile the removal of the juggling of the phone givesback some cognitive capacity, the amount is relativelysmall.

There are multiple distractions (eating, singing,mind wandering, etc.) that pull drivers away from theroad, but a study referenced in an article by Amy Shin,MD, published by the New England Journal ofMedicine, quoted research indicating that the averagerisk of a collision is four times as high when a driver isspeaking on the phone than when he/she isn’t (seehttp://www.nejm.org/doi/full/10.1056/NEJMp0910137). Perhaps even more frightening is that the responsetime is equivalent to the response time of a driver who

As to confidential information, Rule 1.6(a)(2) allowsfor disclosure that is “impliedly authorized to advancethe best interests of the client and is either reasonableunder the circumstances or customary in the profes-sional community.” Comment [5] to Rule 1.6 notes, forexample, that in some situations, “a disclosure thatfacilitates a satisfactory conclusion to a matter” may beimpliedly authorized. Here we focus on the caretaker. Itappears clearly that the disclosure of confidential infor-mation learned from the representation of the care-taker would not advance the best interests of thecaretaker but on the contrary, would be detrimental tothe caretaker if disclosed. Accordingly, any confidentialinformation the lawyer learned in his representation ofthe caretaker may not be disclosed. However, it is notclear from the facts described by the inquiring attorneywhether his prior representation of the caretakerrelated to incidents involving the other former client oronly to unrelated incidents.

Also, as noted in paragraph 14 above, “ConfidentialInformation” does not include information that is gen-erally known in the local community. It very well mayinclude the criminal convictions of the caretaker, as

they would be a matter of public record in Erie Countyand thus may be disclosed if generally known.Comment [4A] to Rule 1.6 notes that information is not“generally known” simply because it is available in apublic file. More must be shown.

Conclusion: A lawyer must turn over the filesincluding executed wills to a former client’s new attor-ney pursuant to the former client’s instructions and tothe extent required by law, unless the lawyer reason-ably believes that because of the client’s diminishedcapacity, he or she is not aware of the consequences ofthe instructions. The lawyer may disclose to the newattorney non-confidential information learned fromconcerned persons, but may not disclose confidentialinformation gained during or relating to the represen-tation of the caretaker as a former client.

________________________________________1 Exceptions arise when the attorney can make “a substantial showing ...of good cause to refuse client access.” For example, the attorney “shouldnot be required to disclose documents which might violate a duty ofnondisclosure owed to a third party, or otherwise imposed by law,” or“firm documents intended for internal law office review and use.” 91N.Y.2d at 37.


ST. THOMAS MORE GUILD, INC.An Organization for Lawyers in the Diocese of Buffalo, New York

2014 Membership Application

The Saint Thomas More Guild is named for Sir Thomas More, the patron saint of lawyers.

The major activity of the St. Thomas More Guild is to sponsor the Red Mass, offered each fall at St. Joseph’s

Cathedral to invoke divine guidance and strength for those entrusted with responsibility of the legal and judicial

systems. The Guild also sponsors a luncheon in the Spring featuring a speaker and presentation of the St.

Thomas More Award, a Mass in honor of the feast of St. Thomas More in June and other programs of spiritual

renewal throughout the year.

We would be pleased to welcome you to the St. Thomas More Guild.

Name: ____________________________________________________________________

Address: __________________________________________________________________

Telephone: ________________________________________________________________

Fax: ____________________________________________________________________

E-Mail Address:____________________________________________________________

Annual Membership Dues: $25.00

Please Make Checks Payable To: St. Thomas More Guild, Inc.

Please Mail Application and Check To: St. Thomas More Guild, Inc.P.O Box 35Buffalo, New York 14201-0035

Dear Member of the Bar,

Hon. Thomas P. (Tim) Franczyk deliveredthe remarks reprinted on page 7 at the annualRed Mass sponsored by the St. Thomas MoreGuild each autumn to seek divine guidance andblessings for lawyers, judges, and public offi-cials. Bishop Richard J Malone celebrated theMass at St. Joseph’s Cathedral.

The St. Thomas More Guild invites you tojoin our organization, which is an association oflawyers in the Diocese of Buffalo committed toproviding opportunities for spiritual growth andprofessional development for members of thelegal profession. In addition to the Red Mass, atradition which dates from 13th centuryEurope, the Guild also sponsor a spring lunch-eon, a scholarship essay contest and variousvolunteer opportunities, as well as continuinglegal education programs. You can join by sub-mitting the application below.

If you weren’t fortunate enough to hear JudgeFranczyk’s remarks at the Red Mass, I’m sureyou’ll enjoy his fond and amusing memories ofa Catholic childhood, as well as his thoughtfulreflections on his own faith and its integrationin daily life.

Sincerely,Cornelia Farley, PresidentSt. Thomas More Guild

Bar Association of Erie County Professional Ethics Opinioncontinued from page 10

DirectorsJohn J. Aman

K. John Bland

Laurie Styka Bloom

James J. Contino

J. Patrick Lennon

Katherine M. Liebner

Daniel T. Lukasik

Michael L. McCabe

Hon. Patricia A. Maxwell

Susan C. Ministero

Nelson E. Schule, Jr.

John L. Sinatra, Jr.

Mary L. Slisz

Vincent J. Sorrentino

Kevin W. Spitler

Donna Hoelscher Suchan

PresidentCornelia Farley

Vice PresidentJ. Michael Lennon II

SecretaryCraig R. Bucki

TreasurerDavid C. Mineo

FOR FURTHER INFORMATION,

contact Cornelia Farley at [email protected]

or visit our website at www.stthomasmorewny.org.

St. Thomas More Guild Inc.An Organization for Lawyers

in the Diocese of Buffalo, New York


The Sixth Annual Champions for Justice Bash will beheld on Friday, November 22, 2013 from 6:00 until9:00 p.m. This year, we have a new venue – The PearlStreet Grill & Brewery. Come join your friends and col-leagues to support the Champions for Justice who workor volunteer at Legal Services for the Elderly, Disabledor Disadvantaged of WNY, Inc., The Legal Aid Bureauof Buffalo, Inc. and the Erie County Bar AssociationVolunteer Lawyers Project.

Immediately prior to the festivities, the three organ-izations will honor volunteers and community partnerswho enable them to fulfill their missions. The honoreesare vital to serving the thousands of people who comethrough our doors each year. We could not do our workwithout their help. They are:

Legal Services for the Elderly & Disabled• Community Partner of the Year: CommissionerRandy Hoak – Erie County Department of SeniorServices

• Corporate Partner of the Year: National Grid andMiguel Santos

• Medical Partner of the Year: Buffalo Pharmacies

• Volunteer of the Year: Jessica Fields, Esq.

Legal Aid Bureau of Buffalo• Re-Entry Services Champion for Justice Award:Tammy Rogers – Federal Probation Officer

• Domestic Violence Advocacy Champion for JusticeAward: Julie Butkowski – Domestic ViolenceAdvocate, International Institute of Buffalo

• Consumer Rights Champion for Justice Award:Scott Laughlin – Consumer Advocate, ConsumerCredit Counseling Services

• Housing Rights Champion for Justice Award:Diana Ganzenmuller – Housing Counselor,Buffalo Urban League

Volunteer Lawyers Project• Judicial Award: Hon. Michael F. Griffith

• Law Firm Commitment: Hiscock & Barclay, LLPand Hurwitz & Fine, PC

• Solo Practitioner: Jennifer P. Stergion

• Divorce: Bernadette Hoppe

• Family Court: Frank J. Longo and Audrey RoseHerman

• Eviction Defense: Michael J. Mettille

• Unemployment Insurance: Sean Costello

• Immigration: Kevin Mulvehill

• Litigation: John P. Feroleto

• Not-for-Profit: Martha Buyer

As of press time, we are fortunate to have the follow-ing sponsors:

Gold SponsorsCellino & Barnes

Hodgson Russ LLP

Phillips Lytle LLP

Bronze SponsorsRupp, Baase, Pfalzgraf, Cunningham & Coppola, LLC

Supermarket Management/Tops Niagara Street

Upstate NY Chapter of the AILA.

If you are interested in sponsorship or advertisingopportunities, please contact Judy Piwowar at ouroffice (853-3087 ext. 213) for tickets; please contactJulie Nicpon at our office, 853-3087 ext 223. This isalways a fun event with great food, a silent auction andthe opportunity to spend time with your colleagues atthe bench and bar. Please join us! [B]

in the public serviceBy Karen Nicolson, Chief Executive OfficerLegal Services for the Elderly, Disabled, or Disadvantged of WNY, Inc.

By Jonathan Smithers

I feel the time has come to declarean interest. As a lawyer, I know onlytoo well that full disclosure is essen-tial.

My statement (such as it is) is sim-ply that your editor and I exchangeemails from time to time in which

she most kindly indicates whether the subject of whichI write may be of interest or amusement to you. Onesuch email exchange gave me the idea for this piece,which is about the difference between what we say andwhat our listeners hear.

I saw an amusing list on LinkedIn, written for theEnglish and translating what foreigners actually hear.Some of this will of course translate well for you; thus“I note what you say” actually means “you are clearlyan idiot” but the foreigner will hear “he was pleasedwith my suggestion.” Of the many examples anotherfrequently used is“you must come todinner,” which ofcourse means “I haveno intention of seeingyou again” but leavesthe foreigner thinkingthat there may shortlybe following a gastro-nomic experience.

Whilst it is easy forthe English-speakingworld to find amuse-ment at the inabilityof those for whom it isnot the mother tongueto understand oursubtleties, the transla-tion works well intothe difference betweenwhat the lawyer is saying and what the client is hear-ing. We are all familiar with trying to dress up badnews or, to use the modern parlance, “managing theclients’ expectations.” There can be a fine line betweentelling them how it is and presenting the facts in anacceptable manner.

I am sure we can all think of examples of a client whohas gone through a complicated set of facts. We havealready concluded that they have utterly missed thepoint/have lost any grip on reality/want to litigate on apoint of principle but have no intention of paying for itand uttered the words “that sounds like an interestingcase.” Was the client able to read between the lines?Probably not but we don’t want to sound too negativeor make them turn their venom against us.

Nearly three years ago, as co-author of the NationalProperty Transfer Protocol, I drafted a clause whichrequired lawyers to tell the clients at the outset what arealistic timescale would be. All too often the estateagent (realtor) would tell the client that they would bein the house within a few weeks if they found the rightlawyer or tell them that the price would go up if theydid. This was almost always nonsense and showed thatthe realtor had no understanding of the process/riskmanagement/due diligence or indeed what the clientactually wanted.

The easy path wasto say to the client“yes, of course, I canachieve that.” It keptthem happy andstarted the process.The more difficultbut better path wasto say “no, let meexplain to you howthis actually works.”For those boldenough to do it, theyfound 100 percent ofclients appreciatedthe honesty and real-ism. For those whodidn’t, they usuallystored up a complaint

or disgruntled client later who wouldn’t come back.The trick was laying it out in a way the client wouldwant to hear and would actually understand. Speakingtheir language and addressing what they actuallywanted to know.

From my own personal experience, it makes verysound economic sense - far too obvious but worth


News from Kent, Our Sister City in Great Britain

Smithers

“You and the Law”Educates Public onLegal IssuesWe appreciate the time that the following

members of our legal community have taken toeducate the public about legal matters by vol-unteering their time to appear on You and theLaw. The program airs every Friday at 5:45p.m. during NPR’s “All Things Considered.”

Randy S. Margulis TBD

Bridget M. O’ConnellMediation Settlement Day

Laurie L. Menzies Elder Law

Kara A. Buscaglia Criminal Law in the TownJustice Courts

You and the Law is underwritten by the ErieCounty Bar Foundation and the LawyerReferral and Information Service of the BAEC. If you would like to appear as a guest on the program, please contact Alex Basinskiat 852-8687 ext. 118 or by e-mail at [email protected].

attributed Otis’s argument as the beginning of theRevolutionary movement. He wrote, “then and therethe child Independence was born.”

Although Hutchinson and his Court eventually ruledagainst Otis (following written instructions fromLondon), Otis’s argument prevailed with the people ofthe New World, and eventually with all of WesternCivilization. Not only did he set in motion the eventsthat lead to the Revolution, but his argument laid thefoundation for the Fourth Amendment, the Bill of

Trial Advocates Hold Constitution Day Lecture forStudents continued from page 6

Jonathan Smithers, deputy vice president of the Law Society of Englandand Wales, pictured at right, recently celebrated the Opening of theLegal Year at Westminster Abbey with Nicholas Fluck, president, center,and Andrew Caplen, vice president, at left. Judges attend the ceremonyin full finery, including robes and wigs.

Rights, and, more broadly, the notion of limited gov-ernment based on reason, and the rule of law.

Despite his remarkable achievement, and Otis’s cen-tral role in the Revolution and the foundation of ourConstitution, few people today remember who Otiswas or what he accomplished. To help revive the mem-ory of this lawyer-patriot, the Massachusetts Chapterof the American Board of Trial Advocates created theJames Otis Lecture Series.

repeating - that a happy client will pay the bill andrecommend others. They will tell their friends “this isa lawyer who knew what he was talking about.” If wewant our clients to trust us, we have to earn that;understanding that what they hear may be differentfrom the words which we speak is a good steppingstone to achieve it. [B]


The Young Lawyers Committee is again challenging your firm to gather as manytoys as possible for some very deserving children.

Not only will your toys help make the holidays more special for children involvedin abuse and neglect proceedings, but the small, medium, and large firms whodonate the most toys for children will have their pictures in the Bulletin!

A big THANK YOU and congratulations to the three firms from last year who col-lected the most toys for our worthy kids!

For more information, please see page 4. Help us make this an unforgettable hol-iday season for some amazing kids!

Elizabeth M. Midgely, Chair Young Lawyers Committee

Get Ready for the Fourth Annual Yuletide Challenge Toy Drive!

Small Firm: Doran & Murphy, PLLC

Medium Firm: Colucci & Gallaher, P.C

Large Firm: Phillips Lytle LLP

Nominations Sought forBar Association LeadersThe Bar Association of Erie County is seeking active,

involved leaders to run for officer and director positionsfor the 2014-15 year.

The Nominating Committee chaired by PresidentMichael J. Ryan is now accepting applications frominterested members of the Bar Association of ErieCounty for the positions of vice president, deputytreasurer and director. You may nominate yourself orother members you feel would be qualified and willing.Candidates should be able to demonstrate a history ofactivity within the organized bar.

Vice PresidentThe vice president performs the duties of the presi-

dent if he or she is absent or unable to perform theduties of the office. The vice president serves a one yearterm followed by a one-year term as president. Thepresident is the chief executive officer of the Associationand presides at all meetings of the Association and allmeetings of the board of directors. The president is theAssociation’s spokesperson.

Deputy TreasurerThe deputy treasurer is a member of the Finance

Committee and performs as treasurer in his or herabsence or inability to perform the duties of the office.The deputy treasurer serves a one-year term followedby a one-year term as treasurer. The treasurer is theAssociation’s chief financial officer.

DirectorThe affairs of the Association are managed by a 16-

member board of directors. Four directors rotate off theboard annually and four new directors are elected.Directors are elected to a three-year term and are noteligible for re-election as a director until the expirationof one year after he or she has left that position.

Interested persons should send a resume along withthe position title to: Nominating Committee, BarAssociation of Erie County, 438 Main Street, SixthFloor, Buffalo, New York 14202. The NominatingCommittee is actively soliciting nominations from themembership.

Nominating CommitteeMichael J. Ryan, ChairPeter J. BattagliaCatherine E. NagelBridget M. O’ConnellHon. E. Jeannette OgdenDavid M. StillwellLawrence J. Vilardo

Become a Contributing Member!The BAEC bylaws confer “contributing member” status

on any member who resides or maintains an office in ErieCounty and elects to pay an additional $50 in annual duesto help support Association programs. Contributing mem-bers have the same rights and privileges as regular mem-bers and “such additional rights and privileges as theboard of directors shall bestow,” including special recog-nition in the Bulletin, annual dinner program and otherpublications.

Each year, bar associations across the country paytribute to the American justice system on Law Day.Traditionally observed on or around May 1, Law Dayis a focal point for many community activities. The BarAssociation of Erie County’s Law Day luncheon andawards ceremony marks the culmination of months oflaw-related educational activities, including a highschool mock trial tournament, poster contest and com-munity outreach.

Our long-standing Law Day tradition involves hon-oring local attorneys and non-attorneys who have dis-tinguished themselves in service to the law and theideals of the Constitution. The Bar Association of ErieCounty will present several awards on Law Day,including the prestigious Liberty Bell Award,bestowed in appreciation of outstanding service to thecommunity. This award is presented to individuals ororganizations that have distinguished themselves in atleast one of the following areas:

• Promoting a better understanding of ourConstitution and the Bill of Rights;

• Encouraging a greater respect for law and thecourts;

• Stimulating a deeper sense of individual responsi-bility so that citizens recognize their duties as wellas their rights;

• Contributing to the effective functioning of ourinstitutions of government; and

• Fostering a better understanding and appreciationof the rule of law.

Last year’s Liberty Bell Award was presented to NewYork State Senator Mark Grisanti, 60th SenateDistrict.

Special Service AwardTraditionally presented to a non-lawyer who is con-

nected with a governmental agency or the courts, thisaward recognizes outstanding service to the legal com-munity. Nominees are notable for their cooperationwith members of the legal profession; efficient handlingof their duties; and willingness to extend themselves tothe benefit of the legal profession and the public. Lastyear’s Special Service Award was conferred onKamilah M. Archibald and Ronald Coleman, CaseManagers, DUI Court, Buffalo City Court.

Police Officer AwardThe Police Officer Award is given to a law enforce-

ment officer in Erie County whose service is in keepingwith the Constitutional imperative to balance the rightsof society against the rights of the accused. The BAEC’sCriminal Law Committee selects the recipient of thisaward based on the following qualities:

• Conduct which demonstrates an understanding ofthe Constitution and especially the Bill of Rights;

• Conduct which encourages respect for the law andthe rule of law;

• Conduct which promotes and contributes to a bet-ter understanding of, respect for, and effectivefunctioning of the judicial process;

• Cooperation with the legal community; and

• Conduct which demonstrates a concern for societyand appreciation for the dignity of all persons.

Any law enforcement officer whose jurisdictionencompasses any part of Erie County is eligible for thisaward. Last year’s award was presented to HomicideInvestigator Mary Evans, Buffalo Police Department.

Justice AwardThis award is presented to a lawyer or non-lawyer

whose efforts have substantially contributed to theimprovement of the Justice System. The Justice Awardis only given when circumstances warrant. It is notnecessarily presented on an annual basis. Last year theaward was presented to Anthony San Giacomo,Chief U.S. Probation Officer.

Media AwardThe Media Award is presented to single out achieve-

ments in print and electronic media and products inmedia and the arts which strengthen the system of jus-tice and freedom under the law. The 2013 recipients ofthis award were Maria Visco and Al Vaughters, Call4 Action Program, WIVB-TV.

Rev. A. Joseph Bissonette Pro Bono AwardThis award honors the memory of Father Bissonette,

who received the Liberty Bell Award posthumously in1987. Created through the generosity of RaymondBissonette, Father Bissonette’s brother, the award rec-ognizes and memorializes Father Bissonette’s life’swork with the inner city poor and his commitment tosocial justice. The first-ever recipient of this award wasMatthew B. Herdzik, Jr.

How to Nominate a Candidate for a LawDay AwardNomination forms for candidates for all the Law Day

Awards are available online at www.eriebar.org. Thedeadline for receipt of nominations for 2014 Law DayAwards is Friday, January 3, 2014. [B]


Law Day Award Nominations Sought


New Lawyers Invited toSpend an Evening withthe JudiciaryBeen in practice 10 years or less? If so, this has your

name all over it!

The BAEC Young Lawyers Committee has teamedup with the Admission to the Bar Committee to presenttheir annual Evening with the Judiciary. This event,open to attorneys in practice 10 years or less, is one youdon’t want to miss. (Trust us!)

“We are very lucky to have many amazing membersof the judiciary locally, and here is your chance to meetthem outside the courtroom,” according to YoungLawyers Committee Chair Elizabeth M. Midgley.

The event will be held on Wednesday, November13 from 5:30-7:30 p.m. at Templeton Landing. Theevening offers a “unique opportunity to mix and min-gle with judges and other young lawyers outside of thecourtroom,” Midgley said.

Please RSVP to Susan Kohlbacher ([email protected]) by November 5 (RSVPs are manda-tory). The cost is $15 for BAEC members and $20 fornon-members.

There are also some great sponsorship opportunitiesavailable for this event. Contact Liz Midgley ([email protected]) for more information.

Mark your calendars and plan now to be part of thisspecial evening! [B]

In Memoriam

“Perhaps they are not stars in the sky

but rather openings where our loved ones

shine down to let us know

they are happy.”

~ Eskimo Legend

Paul W. Mathias

Harvey Rogers

Marvin H. Mason

Contributions to the Erie County Bar Foundation provide an excellentvehicle for recognizing and honoring members of our profession.Memorial gifts to the Foundation become a lasting tribute to the entirelegal profession, as funds are used exclusively to assist attorneys andpromote understanding of our legal system.

In Memory of Mark G. Hirschorn:Brian R. Welsh

In Memory of Francis J. Offermann,Jr.:

Diane F. BosseHon. Sharon & Bradlee TownsendPhilip H. Magner, Jr.Stephen E. Cavanaugh

In Memory of Harvey Rogers:Bar Association of Erie CountyColeman VolgenauEdward J. Schwendler, Jr.

In Memory of Marvin H. Mason:David F. Davis

In Memory of John Vance (Father of Paul Vance):

David R. Pfalzgraf

In Memory of Judge Peter Gugino:Frederick R. Gugino

In Memory of Hon. Vincent E.Doyle:

Herman J. Ginsburg

In Memory of My Mother, Diane M. Schwach:

Michelle Schwach Mieczniekowski

In Memory of Brenda Moynihan:Kelly Zarcone

In Memory of Russell Morey:Matthew B. Morey

In Memory of John Olszewski:Peter A. Vinolus

In Memory of Arthur F. Dobson, Jr.:J. Mark GruberRobert S. StephensonWilliam K. Buscaglia, Jr.

In Memory of My Father, Henry W.Jadd:

Robert I. Jadd

In Honor of David H. Kernan:Robert Michael Greene

In Honor Albert J. Mogavero:Jeffrey M. Freedman

In Honor of Grace Marie Ange:Kathleen V. O’Brien

In Honor of J. Michael Lennon:Robert J. Schreck

In Honor of UB Law School:Christopher Grover

In Memory of Salvatore F.Giallombardo:

Hon. Joseph A. Fiorella

In Memory of Michael J. Flaherty(Father of Michael J. Flaherty, Jr.):

Anthony J. Colucci, Jr.David Murray & Carrie SmithDebra A. NortonHon. Frederick J. MarshallJ. Mark GruberJeffrey P. MarkelloJennifer M. DillonJohn J. CarneyKathleen M. SellersJulie Ann DeeMary K. GoslinMichelle ParkerThomas C. Farley, Jr.

In Memory of Harold J. Boreanaz:Patrick J. Baker

In Memory of Francis J.Offermann, Jr.:

Robert S. Stephenson

In Memory of Jane Cole Godin(Mother of Richard H. Cole):

Andrea Sammarco & Tracy Sammarco

In Memory of Michael J. Rooth:Anna Marie Cellino

In Memory of Donald E. Griffin(Brother of Richard F. Griffin):

John Ballow

The Foundation gratefully acknowledges the following contributions:

In Memory of Greg Hoelscher:Robert M. Lippman

In Memory of Paul Williams:Roger J. Edel

In Memory of Joseph Vispi:Michael A. WargulaThomas M. Rizzo

In Memory of Robert J. Lane, Sr.:Thomas S. Lane

In Memory of Eric T. Dadd:David Nelson

In Memory of Stanley Jay Keysa:Christopher Willett

In Memory of Ora Lee FunderburkGresham (Mother of ChristopherGresham):

Thomas C. Farley, Jr.

In Memory of Hon. Edgar C.NeMoyer:

Patrick J. Baker

In Memory of Hon. Frank A. Sedita,Jr.:

Hon Joseph A. Fiorella

In Memory of Hon. John H. Doerr:Jo Ann M. Wahl

In Memory of My Father-in-Law,Anthony J. Hojnacki:

James D. Schultz, Jr.

In Memory of Catherine L.Haslinger:

John E. Haslinger

In Memory of Dennis J. Dee:James J. Kirisits

In Memory of Charles H. Dougherty:Deborah E. Nicosia

In Memory of My Father, Edward M. Semple:

E. Michael Semple

Foundation Contributions to Benefit Profession

We wish to honor the memory of the follow-

ing members of our Bar Association. Memorial

gifts to the Erie County Bar Foundation are

an excellent way to remember friends and

colleagues, as gifts are used for the benefit

of the entire profession.


erie institute of lawProviding continuing legal education for your Professional advantage

PLEASE NOTE: The Erie Institute of Law is unable to issue partial credit for seminars, except for multiple session programs such as the Tax andLeadership Institutes. If you have questions about whether a program qualifies for partial credit, please call Mary Kohlbacher at 852-8687.

Check our calendar for updates and added programming at www.eriebar.org

Date/Time/Location Topic CLE Credits Price

Friday, November 1, 2013 Tour of the New York State Courts for Newly 3.0 credits $10 attorneys admitted

8:50 a.m. –1:00 p.m. Admitted Attorneys to practice 5 years or less

Ceremonial Courtroom (Special Tour presented by the Admission to the Bar Committee)

92 Franklin Street This special tour begins at the Ceremonial Courtroom and ends at the

Buffalo, NY Supreme Court Library with a CLE presentation and lunch - thanks to Batavia Legal Printing,

Gibson, McAskill & Crosby, Jack W. Hunt & Associates, Inc., Phillips Lytle LLP and Tronolone & Surgalla P.C.

Wednesday, November 6, 2013 60th Annual Tax Institute (FULL DAY) 12 credits $375 members and

8:30 a.m. – 4:15 p.m. (Live Seminar) (total program) non-members

Millennium Hotel $350 – Go Paperless

Walden Avenue

Cheektowaga, NY

Thursday, November 7, 2013 60th Annual Tax Institute (HALF DAY) 12 credits $375 members and

8:30 a.m. – 1:00 p.m. (Live Seminar) (total program) non-members

Millennium Hotel $350 - Go Paperless

Walden Avenue

Cheektowaga, NY

Friday, November 8, 2013 Planning Ahead: Key Issues for the Lawyer 4.0 credits $60 BAEC and GCBA

11:45 a.m. – 12:30 p.m. (optional lunch) Approaching Retirement members

12:30 p.m. – 4:05 p.m. (seminar) (Live Seminar w/Genesee County Bar Association) $55 Gov’t Employees

Genesee County Courts Facility $75 non-members

Grand Jury Room, 2nd Floor $10 Lunch (optional)

Batavia, NY

Wednesday, November 13, 2013 The Canadian Cottage: Canadian Issues for 1.0 credit Live Seminar:

1:00 p.m. – 2:00 p.m. American Attorneys $20 members

Adelbert Moot CLE Center (Midday Learning Lecture) $25 non-members

438 Main St. Webcast:

Buffalo, NY $30 members

$35 non-members

Thursday, November 14, 2013 Document Management in the Age of E-Filing 1.0 credit Live Seminar:

1:00 p.m. –2:00 p.m. (Midday Learning Lecture) $20 BAEC/ALA members

Adelbert Moot CLE Center The ALA Chapter meeting will be held one hour before the lecture $25 non-members

438 Main St. Co-Sponsored by Association of Legal Administrators Webcast:


$35 non-members

Friday, November 15, 2013 Cross Examination credits TBD Live Seminar:

9:00 a.m. –5:00 p.m. (Live seminar co-presented by the Criminal Law and Matrimonial TBD

AcQua Restaurant and Banquets and Family Law Committees) Webcast:

2192 Niagara Street TBD

Buffalo, NY See www.eriebar.org for details.

Wednesday, November 20, 2013 E-Filing in the Erie County Clerk’s Office – After the Dust Settles 1.0 credit Live Seminar:

1:00 p.m. –2:00 p.m. …or Up to Our Necks and Paddling! $20 members

Adelbert Moot CLE Center (Midday Learning Lecture) $25 non-members



$35 non-members

Thursday, November 21, 2013 Time and Workflow Management for Attorneys 1.0 credit Live Seminar:

1:00 p.m. –2:00 p.m. (Midday Learning Lecture) $20 members

Adelbert Moot CLE Center $25 non-members



$35 non-members

Friday, November 22, 2013 U.S. Supreme Court Review and Preview 4.0 credits Live Seminar:

9:00 a.m. –1:00 p.m. (Live Seminar co-presented by the Appellate and Federal Practice Committees) $80 members

Ceremonial Courtroom Sponsored by Counsel Press $110 non-members

92 Franklin St. Webcast:

Buffalo, NY $100 members$130 non-members

Please use form at right for the above classes.


in today’s competitive, fast-paced legal environment, effective time management is essential. take advantage of the

erie institute of law tape library and start earning your cle credits when the time is convenient for you.

the erie institute of law is now offering our most recent cle seminars on cd, cassette tape and dvd.

all of our seminars are professionally edited and are accompanied by a full set of written course materials.

listen, learn & earn!

Fracking? Wetlands? Smartgrowth? An Environmental Smorgasbord forChanging TimesProduct Code 2194

4.5 CLE credits: 4.0 Areas of Professional Practice, 0.5 SkillsPresented on May 4, 2012 Available on CD only$100 BAEC Members, $165 Non-Members

This Environmental Law seminar covers the followingtopics:

• The Brownfield Cleanup Program;• Wetlands Update 2012;• Indoor Air Quality;• Titling at Windmills; • An Update on the State Environmental Quality

Review Act; • NYS Smart Growth Act; and• Hydrofracking.

2013 Update on NYS Civil Practice andProcedureProduct Code 2211

3.0 CLE Credits: 0.5 Ethics, 2.5 Areas of ProfessionalPracticePresented on September 4, 2013Available on CD only (soon to be available “on-demand” onour web site!)$100 BAEC Members, $150 Non-Members

Steven P. Curvin of Burgio, Kita & Curvin presentsthe 2013 Update on New York State Civil Practiceand Procedure.

During the presentation, the following topics involvingcivil practice were discussed:

• Personal Jurisdiction and Service of Process; • Substitution Upon Death of a Party;• Pleadings and Amendments of Pleadings;• Scope of Disclosure and Protective Orders;• Physical/Mental Examinations of Parties; • Penalties for Failure/Refusal to Disclose;• Motions for Summary Judgment; • Default Judgments; • Motions for Dismissal for Failure to Prosecute; • Entry of Verdicts; • Appellate Issues; • Jury Issues;

Everything You Always Wanted to Know About QDROs (But Were Afraid to Ask)Product Code 2203

4.0 CLE Credits: 2.0 Areas of Professional Practice, 2.0 SkillsPresented on October 18, 2012Available on CD only$110 BAEC Members, $165 Non-Members

The Matrimonial and Family Law Committee, chairedby Catherine Nagel, welcomes you to this informa-tive program that provides an overview of QualifiedDomestic Relations Orders, or QDROs. You’ll leanthe specifics of how retirement plans work fromRaymond Barr of Phillips Lytle and KellyZarcone of Zarcone Associates. Other topics covered in detail include:

• dividing IRA benefits;• pension options and benefits for government

plans;• retirement plan discovery;• separation agreements; and • post-divorce follow-up and estate planning

considerations

Holly Baum joins Kelly Zarcone for a roundtable discussion to conclude the program.

Pros in Action: Court of AppealsArguments Product Code 2198

3.0 CLE credits: 1.0 Law Practice Management, 2.0 SkillsPresented on June 29, 2012Available on DVD Only$100 BAEC Members, $155 Non-Members

The Appellate Practice Committee invites you tojoin New York State Court of Appeals Judge EugeneF. Pigott, Jr., Buffalo attorneys Paul Cambria,Shawn Hennessy, Edward Markarian and AlanVoos, to watch and discuss video replays of Peoplev Spicola and Bissell v Town of Amherst. These caseswere well-argued at the Court of Appeals, whereJudge Pigott and the other judges of the Court ofAppeals heard the arguments of Cambria, Hennessy,Voos and New York City attorney Hal Friedman.The participants discuss how the issues wereframed in their briefs, how they prepared for oralargument, whether questions from the Court sur-prised them, and whether, in hindsight, they wishthey had handled issues differently.

To order, please send check payable to: The ErieInstitute of Law • 438 Main Street, Sixth Floor •Buffalo, NY 14202

Be sure to include your name and address for mailing pur-poses; add $5 shipping and handling for each tape pur-chased. Tapes are mailed via UPS, no P.O. boxes please. Toorder by phone using your Visa or MasterCard, call the CLEdepartment at 852-8687.

For a complete listing of taped CLE programs, visit ourWeb site at www.eriebar.org and click on theContinuing Legal Education link or call the CLE depart-ment at 852-8687.

NEW CATALOG AVA I LABLE NOW!✃

Erie Institute of Law Registration Form

Please register me for the following Erie Institute of Law sponsored events:

1. ___________________________________________________ 2. _________________________________________________ 3. _____________________________________________

Name:______________________________________________

Firm:_______________________________________________

Street Address:__________________________________________________________________________________

City: _______________________________________________State: ______________________Zip:_____________

Phone: _____________________________________________E-mail:______________________________________

Enclosed is my check in the amount $_______________ [ ] Check enclosed Charge my: [ ] Visa [ ] MasterCard

Card Number:__________________________________________ Exp. Date:______________________ Cardholder Signature:___________________________________________

Cancellation Policy: If you are unable to attend a seminar for which you have already registered, The CLE department at 852-8687. For a full refund, notice of your cancellation must be received before the date of the program. Registrants who are pre-registered and fail to attend will receive course materials in lieu of a refund.Mail or Fax to: Erie Institute of Law, 438 Main Street, Sixth Floor, Buffalo, New York 14202, (716) 852-8687, Fax (716) 852-7641.

AND……..

• The Ethical Portion of thePresentation…Lawyers Behaving Badly.

Winning Opening Statements andClosing ArgumentsProduct Code 2212

4.5 CLE Credits: SkillsPresented on September 20, 2013Available on DVD only (soon to be available “on-demand” on our website!)$110 BAEC Members, $165 Non-Members

This engaging and informative seminar covers thekey principles, techniques and strategies for plan-ning and delivering winning opening statementsand closing arguments. With the aid of movie clipsand actual openings and summations in celebratedcases, the presentation includes the essentials ofhow to seize the jurors’ attention and hold it with apersuasive courtroom speech. “Winning OpeningStatements and Closing Arguments” features:• Master storyteller techniques for opening state-

ment;• Making your message stick with the jurors and

judge;• Powerful case themes and narratives;• The ingredients of compelling arguments;• Specific arguments on matters such as missing

evidence, witness credibility; unanswerable ques-tions, damages, and handling case weaknesses;

• Employing effective rhetorical devises;• Ten persuasion paradigms;• The devastating rebuttal argument;• Today’s technology for visual persuasion and

argument visuals; and• Avoiding danger zones in opening statement and

summation;

ALL MEETINGS HELD IN THE BAR CENTER, 438 Main Street, Sixth Floor, unless other-wise noted. The Adelbert Moot CLE Center is also located at 438 Main Street, Sixth Floor.

NOVEMBER 2013

FRIDAY 1Commercial & Bankruptcy LawCommittee 12:15 p.m. – James C. Thoman,Chair

Committee to Assist Lawyers with Depression12:30 p.m. – Daniel T. Lukasik, Chair

MONDAY 4Professional Ethics Committee 12:15 p.m. – Howard B. Cohen, Chair

TUESDAY 5Board of Directors8:00 a.m. – Michael J. Ryan,President

WEDNESDAY 6Annual Western District Federal CourtDinnerCash Bar 5:30 p.m./Dinner 7:00p.m./$50Marquis de Lafayette, 391 WashingtonStreetFor further information, contact Susan Kohlbacher at 852-8687.

THURSDAY 7Negligence Committee 12:15 p.m. - Adelbert Moot CLECenterKathleen M. Reilly, Chair

FRIDAY 8Committee for the Disabled 12:15 p.m. – Adelbert Moot CLECenterLynn M. Kwon-Dzikiy, Chair

MONDAY 11Office Closed - Veterans DayCommittee to Assist Lawyers withDepression12:30 p.m. – Daniel T. Lukasik, Chair

TUESDAY 12Labor Law Committee12:15 p.m. – Heather A. Giambra,Chair

Real Property Law Committee12:15 p.m. - Adelbert Moot CLECenterKeri D. Callochia, Chair

Criminal Law Committee 12:15 p.m. - Old Surrogate Courtcourtroom,located on the 1st Floor of 92 FranklinStreet. John R. Nuchereno, Chair

WEDNESDAY 13Intellectual Property, Computer & Entertainment Law Committee12:15 p.m. - Adelbert Moot CLECenterCharles van Ee, Chair

Health Care Law Committee12:15 p.m. – William Patrick Keefer,Chair

FRIDAY 15Young Lawyers Committee12:15 p.m. - Elizabeth M. Midgley &Craig R. Bucki, Co-Chairs

Committee to Assist Lawyers with Depression12:30 p.m. – Daniel T. Lukasik, Chair

MONDAY 18Banking Law Committee 12:15 p.m. – Harris Beach LLPPietra G. Lettieri, ChairWorkers’ Compensation Committee12:15 p.m. – Russell D. Hall, Chair

TUESDAY 19Board of Directors8:00 a.m. – Michael J. Ryan,President

Federal Practice Committee12:15 p.m. - Adelbert Moot CLECenterTimothy J. Graber, Chair

WEDNESDAY 20January Bulletin Deadline

Erie County Bar Foundation8:00 a.m. – Gregory L. Brown,President

Appellate Practice Committee12:15 p.m. – Timothy P. Murphy,Chair

Unlawful Practice of Law Committee12:15 p.m. – Marc Shatkin, Chair

Matrimonial & Family Law Committee12:15 p.m. - 25 Delaware Ave, 5thFloorCatherine E. Nagel & MichelleSchwach Miecznikoswki, Co~Chairs

Human Rights Committee12:15 p.m. – Sophie Feal, Chair

THURSDAY 21Committee on Veterans’ & Service-Members’ Legal Issues12:15 p.m. – Joseph D. Morath, Chair

Environmental Law Committee12:15p.m. Jeffrey C. Stravino, Chair

Solo & Small Firm PracticeCommittee12:30 p.m. – Jennifer P. Stergion,Chair

P&P in Surrogate’s Court Committee12:15 p.m. - 438 Main Street, 12thFloorDavid H. Alexander, Chair

FRIDAY 22Committee to Assist Lawyers withDepression12:30 p.m. – Daniel T. Lukasik, Chair

MONDAY 25December Bulletin Deadline

Alternative Dispute ResolutionCommittee12:15 p.m. – Bridget M. O’Connell,Chair

TUESDAY 26Elder Law Committee12:15 p.m. - Adelbert Moot CLECenterJillian E. Brevorka, Chair

WEDNESDAY 27P&P in Family Court Committee 12:15 p.m. - Family Court BuildingTina M. Hawthorne, Chair

THURSDAY 28Office Closed ~ Thanksgiving Holiday

FRIDAY 29Office Closed ~ Thanksgiving Holiday

www.eriebar.org

PAGE 24www.eriebar.org | November 2013

Photos by Glenn Edward Murray

“Although no…engraved stone bears record of their deeds, yet will their remembrance be as lasting as the land they honored.”

~ Daniel Webster

prsrt std u.s. postage paid permit no. 416 … · april is the cruelest month. so opines t. s....

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