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August 20, 2014

What a Difference a Triable Issue of Fact Can Make: The Use of Experts to Oppose Motions for Summary Judgement in New York, Revisited.

case-ilustration-1015897-m.jpgIt has been some time since we last spoke about the use of experts to oppose motions for summary judgement in New York. The topic, however, is still relevant. Some continue to believe there is a hard and fast rule, at least in the Appellate Division, Second Department, which forbids a trial court from considering an affidavit from an expert unless the party offering the expert's affidavit served full expert's disclosure pursuant to CPLR 3101(d)(1) prior to the filing of the Note of Issue and Certificate of Readiness or at least moved to vacate the Note of Issue and Certificate of Readiness if they had not served expert's disclosure by then. As we pointed out in our last entries on the subject, there is no such concrete rule and there never really was. A case that should go to trial most often does; it withstands a motion for summary judgement, unless the party who uses the affidavit nefariously refused to disclose the expert in time.

There have been a series of decisions that have clarified that this is the rule. The first was Rivers v. Birnbaum, 102 A.D.3d 26, 953 N.Y.S.2d 232 (2nd Dept. 2012). Another, more recent example, is Begley v. City of New York, 111 A.D.3d 5, 972 N.Y.S.2d 48, 72 (2nd Dept. 2013), leave to appeal denied, 23 N.Y.3d 903, 988 N.Y.S.2d 130 (2014), which is especially instructive because of the way it summarizes the reasons for the rule. It holds, in relevant part:

Continue reading "What a Difference a Triable Issue of Fact Can Make: The Use of Experts to Oppose Motions for Summary Judgement in New York, Revisited." »

August 6, 2014

Cybersecurity Update: Hackers' Gains, Target's Losses, and E-Commerce

crowbar-854266-m.jpgThere are a few recent news stories that business owners, fraud investigators, and consumers should be aware of. Though not necessarily related, they point out the ever-growing need to protect digital information and the consequences for those who do not. Cybersecurity, it seems, is something that will affect everyone, eventually.

The topic of the first story, unfortunately, is common; the numbers, thankfully, are not, though we should all hope they stay that way. According to an article by Danny Yidron in the Wall Street Journal, which was last updated at 2043 hrs Eastern Time on August 5, 2014, a gang of Russian hackers has amassed 1.2 billion stolen user names and passwords from approximately 500 million unsuspecting people. According to the private security firm that discovered the theft, Hold Security in Milwaukee, the hackers obtained the information from 420,000 websites, allegedly ranging from leaders in major industries to small businesses and personal websites. No measurable harm evidently has come from the theft, at least not yet. The hackers reportedly so far are using the data only to send spam messages on social media accounts. That doesn't mean the people whose information was stolen are free and clear: There is a growing trend in recent years, according to the report, where cybercriminals amass online credentials for later use. While that later use isn't specified, it shouldn't be all that hard to determine. Consumers, according to the report, often use the same user names and passwords across various websites. If a hacker learns a user name and password for one account, it's not that hard to imagine that the hacker also could gain access to the consumer's other accounts, including on websites that store, or have access to, the consumers' financial information, including credit card numbers.

In order to see the harm that was done already, merely because the hackers have the user names and passwords, you have to remember that just exposing your customers' confidential information sometimes is enough to trigger an enforcement action by the Federal Trade Commission to force businesses to take reasonable precautions to protect their customers' digital information. If you remember the LabMD case, which we already spent some time discussing, the FTC's claims of unfair or deceptive acts or practices in, or affecting, commerce, were directed against LabMD for allegedly inadvertently posting the confidential information of less than 10,000 individuals on a file sharing platform that was intended to share music files instead. During the FTC's administrative law trial against LabMD, it reportedly did not even plan to present any witnesses who were the victims of the alleged ID theft; exposing the information, allegedly, was enough.

We're not comparing the theft of user names and passwords to exposing confidential health information, which allegedly is what occurred in the LabMD case. Allowing the theft of user names and passwords could lead to some real trouble, though, especially if it leads to the theft of user financial information, such as credit card numbers. That leads straight to the second news story.

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July 25, 2014

Antitrust, Anti-Steering Rules, and American Express: The Justice Department Pursues Unfair Competition In A Business Model

sunset-on-lake-purple-light-1406480-m.jpgUnfair competition is back in the news. The U.S. Justice Department sued American Express a few years ago for unfair competition in the credit card business. Since such things take time, the trial just began on Monday July 7, 2014. The issues, the accusations, and the justifications seem fairly familiar, especially when you recall the last big antitrust trial and the unintended consequences that followed. Whether the same thing will happen this time, though, is something only time will tell.

The last time, the Justice Department sued Apple, to prevent what it said was anti-competitive practices in the e-book business. As we previously wrote, these included the agency model, in which the publishers set the price of the e-book, and the seller, in this case Apple, takes a set percentage of that price; and most-favored nation clauses, in which the seller, is allowed to match its lowest competitor's price. Well, Apple lost, the Justice Department won, and, some would say, so did Amazon. Apple was trying to break into the e-book market and its job was made harder; Amazon was the dominant seller in the e-book business and some would say its job was made easier because it could use its market share to leverage ever better deals for itself and, it would say, for its customers, too.

This time, the Justice Department reportedly takes issue with American Express' rules that prohibit merchants that accept its cards from offering discounts or otherwise steering customers to use cards that are less expensive for the merchants to process. Credit card companies, it seems, make money by charging merchants a set percentage of the sales price for every sale made on one of their credit cards. These swipe fees vary and, reportedly, American Express cards have some of the higher ones. Merchants would be able to keep more of the purchase price if a customer used a credit card that had a lower swipe fee and they could give credit card customers a discount, some portion of the money saved, as an incentive. American Express evidently does not want that to happen because its customers presumably would have to pay more, i.e. not receive a discount or incentive, to use an American Express Card.

The government's position was summed up nicely in an article in the Wall Street Journal by Robin Sidel that was last updated on July 3, 2014 9:01 a.m. ET:

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July 14, 2014

Insurance Against The FTC's Claims of Deceptive Acts and Practices: Developing Your Own Industry Standards For Data Security

3rd.Small.2nd.IMG_20140713_170245 - Copy.jpgWe have been discussing what businesses can do to protect against the Federal Trade Commission commencing an enforcement action against them for allegedly failing to take reasonable precautions to ensure the safety of their customers' private data, such as financial information, dates of birth, social security numbers, and even health records: Develop, and implement, industry standard, and commercially reasonable, data security practices. This time, we will see just how effective those efforts are by, in effect, asking Target.

What makes such Industry Standard Practices and Commercially Reasonable Efforts so promisingly effective is that:

  • They were approvingly cited as source of guidance as to what a business must do to properly protect its customers' data, by the court in the case entitled, The Federal Trade Commission, Plaintiff, v. Wyndham Worldwide Corp., et al., Defendants. Civil Action No. 13-1887 (ES), United States District Court, D. New Jersey. This was the same case which approved the FTC's right to police data security practices.
  • Many businesses use those terms in their posted privacy policy.
  • The FTC already has demonstrated a willingness to allege deceptive acts or practices against companies that claim they follow Industry Standard Practices and take Commercially Reasonable Efforts to ensure data security but nevertheless suffer data breaches. This is what the FTC did in the Wyndham case. The FTC, in effect, will see a data breach; examine how it happened; determine that the precautions the company took to safeguard the data were inadequate and therefore did not meet Industry Standards or amount to Commercially Reasonable Efforts; and claim that the company deceived their customers by putting those terms in their privacy policy without abiding by them.
  • Companies can define, on their own, what Industry Standard Practices and Commercially Reasonable Efforts, actually mean, for their business and their customers

Some companies, and industries, have gone to great lengths to define Industry Standard Practices and Commercially Reasonable Efforts for themselves. We previously pointed out the extraordinary data security efforts leading retailers were taking to protect the safety of their customers' sensitive, private information; how they were sharing information, between themselves and governmental agencies, and collaborating with outside experts, to develop industry standard practices in data security; how they established an independent entity, the Retail Cyber Intelligence Sharing Center, or R-CISC, to do exactly that. We also examined a benefit of, if not the actual reason for, the retailers' efforts: To protect themselves.

Retailers seem to be some of the most tempting targets of data security breaches. They handle large amounts of their customers' financial information every day. Credit and debit card numbers are perhaps the most inviting targets because they are so lucrative and can be turned into illicit gains so quickly by cyber-criminals. Here are some facts which might put the retailers' efforts into perspective:
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June 3, 2014

How Difficult Is It For a Business To Comply With Its Own Privacy Policy?

miror.image.untitled-1430946-m.jpgIf a business' privacy policy says it will protect its customers' sensitive private digital information in certain ways, then it probably is a good idea for the business to keep that promise. The Federal Trade Commission has sued businesses for allegedly making promises in their privacy policies that they did not keep.

How difficult is it for a company to comply with its own data security, or privacy, policy? Evidently, it is difficult, labor intensive and time-consuming; mostly because of the problems translating the words of the policy into detailed computer instructions or code, and the vast amount of code that needs to be checked to ensure it complies with the policy.

Is there a way for a business to protect itself by ensuring that its privacy policy is properly, and consistently, carried out? There might be, and it involves something called Legalease, which actually clears things up rather than makes them more confusing.

The highest profile recent case in which the FTC has alleged that a company deceived the public by failing to live up to the promises made within its own privacy policy, is the FTC v Wyndham Worldwide Corp., et al. We previously wrote about the April 7, 2014 decision of Esther Salas, U.S.D.J., which denied the motion of one of the defendants, Wyndham Hotels and Resorts, LLC ("Hotels and Resorts"), to dismiss the complaint against it. In that decision the court describes the FTC's deception claim this way, beginning on p.33:

Hotels and Resorts also challenges the FTC's deception claim (HR's Mov. Br. At 23). In this claim, the FTC cites the Defendants' privacy policy disseminated on Hotels and Resorts' website and alleges that, "in connection with the advertising, marketing, promotion, offering for sale, or sale of hotel services, Defendants have represented, directly or indirectly, expressly or by implication, that they had implemented reasonable and appropriate measures to protect personal information against unauthorized access" but that "Defendants did not implement reasonable and appropriate measures to protect personal information against unauthorized access." (Compl.paragraph 21, 44-45). Accordingly, the FTC alleges that Defendants' representations "are false or misleading and constitute deceptive acts or practices" under Section 5(a) of the FTC Act. (Id. Paragraph 46).

Hotels and Resorts' privacy policy seems innocuous, though it does sound suspiciously like the FTC's "Reasonable Precautions" cybersecurity standard that Wyndham complained so loudly about in the same case. The privacy policy says the company will comply with certain amorphous standards without defining what those standards specifically require. According to the court, beginning on p. 37 of its decision:

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May 30, 2014

Apple, Amazon, & E-books: Antitrust Regulation and Unfair Competition in the News

stick-insect-mother-and-baby-1425436-m.jpgIt's been a while, but claims of unfair competition involving e-books are back in the news. About a year ago the Justice Department won its antitrust case against Apple for horizontal price fixing of e-books. Now Apple's main competitor, Amazon, is having a dispute with one of the same publishers involved in the Apple case, Hachette. Amazon reportedly is pressuring Hachette to let it keep a bigger share of the sales price of e-books, and driving up the price in the process. Whether there is any comparison, or connection, between what Apple did and what Amazon is doing, is for you to decide.

What Apple Did

Let's look at what the court determined Apple did wrong. The Apple case was decided, after a bench trial, by U.S. District Judge Denise Cote. In her July 10, 2013 decision, she held, beginning at p. 9:

"The Plaintiffs have shown that the Publisher Defendants conspired with each other to eliminate retail price competition in order to raise e-book prices, and that Apple played a central role in facilitating and executing that conspiracy. Without Apple's orchestration of this conspiracy, it would not have succeeded as it did in the Spring of 2010."

The Justice Department's view of what Apple did was summed up nicely in an article by Bob Van Voris about the Apple trial, which appeared in Bloomberg on Jun 21, 2013 at 12:01 AM ET:

"Mark Ryan, a lawyer for the Justice Department, followed Snyder [Apple's attorney] yesterday, arguing that Apple headed up 'an old-fashioned, straightforward price-fixing agreement.' "

The way Apple conspired to end retail price competition and raise the price of e-books was simple, according to the court. Before Apple, the publishers sold e-books to retailers such as Amazon at a wholesale price and the retailers sold the e-books to the public at whatever price they saw fit. The publishers wanted to raise the price of e-books and Apple gave them a way. Apple agreed to let the publishers set the prices of e-books, which were as much as 50% higher than what Amazon was charging at the time. In return, the publishers agreed to pay Apple a fixed percentage of the sales price. This is the agency model. In return, the publishers gave Apple a Most Favored Nation clause, which is a way of saying they agreed to let Apple match its competitors' lowest price for the same e-book. According to the court, the publishers also agreed to a harsh financial penalty unless Amazon and other competitors agreed to let the publishers set the retail prices. In effect, the publishers set the price, Apple took a share, and everyone had an incentive to go along.

What Amazon Is Doing

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April 25, 2014

What Happens When A Plaintiff Sues Several Defendants In New York But Settles With Only One?

the-ardennes-1284651-m.jpgIt is not unusual for a Plaintiff to sue more than one defendant. It happens all of the time in New York.

Think of when a homeowner hires a contractor and the contractor damages a neighbor's property. The neighbor will most often sue both. In New York City it is not uncommon to have a lawsuit that involves two adjacent buildings. The first one is demolished but, because the shoring used to protect the remaining building is inadequate, the land under the second building shifts a little and the second building cracks. The owner of the second building wants to get paid to repair his damaged property. He sues the owner of the first building, the contractors that performed the work, and possibly even his own insurance carrier if he doesn't like the way the carrier adjusts his first-party property claim.

What happens, though, when the plaintiff settles with only one defendant and goes to trial against the rest? How does a court decide how much the plaintiff can collect from the remaining defendants?

The rules in New York are fairly straightforward. New York General Obligations Law §15-108 permits a plaintiff to settle a claim with a defendant tortfeasor without risking the discharge of other tortfeasors who might be liable for the injury. When one tortfeasor settles with the injured party, the settlement relieves the settling tortfeasor of liability to any other person for contribution. It entitles the non-settling tortfeasor to assert the settlement as a defense to the injured party's claim and to obtain an appropriate reduction in damages. In order to keep the rule clear, think of the "tortfeasor" as the party who allegedly did something wrong. In our examples it could be the contractor, the homeowner, or the owner of the first building.

New York General Obligations Law §15-108, provides in relevant part:

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April 1, 2014

How To Vacate A Default Judgement In New York: Start At The Beginning

cd-box-1428586-m.jpg How to vacate a default judgement in New York is something every potential litigant should know. It is a topic filled with cautionary tales of second chances, heartache and redemption, as we have talked about in the past. It also demonstrates the importance of thinking outside the box when you try to solve an otherwise intractable problem.

Normally, when a Defendant comes to you for help vacating a default, he is in a state of panic; the only question is how much. Bad things can happen if the default stands; a defendant might have to pay a judgement on a claim that it could have been able to defeat on the merits. There are ways to ameliorate the damage; but the best course is to avoid a default if possible.

Sometimes, the best way to fix a problem is to view it with an open mind and approach it without any preconceived notions. Sometimes the best way to change the end result is to go back to the beginning. Vacating a default judgement is no different. Sometimes the best way to vacate a default judgement is to determine when exactly the Defendant's deadline to answer was, and determine how much he missed it by, if he really missed it at all.

When someone, whether a business or a person, is sued, when does it have to answer the complaint or take some other sort of action to make sure it can defend itself, in court, on the merits? In New York, the answer is, as most answers seem to be, dependent on the circumstances: the method of service or how the Defendant receives the summons and complaint; the court in which it is sued; where the Defendant is when it receives the service of process; and how many copies of the summons and complaint it ultimately receives. Maybe the most surprising of all is that in New York, a Defendant's deadline to answer can depend upon what the Plaintiff does after it serves the summons and complaint on the Defendant.

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March 7, 2014

Hearsay Evidence Can Be Used To Help Defeat A Motion For Summary Judgement In New York

IMG_20140309_191535 - Copy.jpgSometimes you learn something new from unexpected places. Sometimes you have to challenge your assumptions if you want to have any hope of solving an otherwise intractable problem. Sometimes, just because common knowledge is widely accepted, does not mean that it should be. A recent appeal I was working on made this clear.

Every New York attorney knows the test for defeating a motion for summary judgement: a party must offer evidence in admissible form sufficient to create a genuine issue of material fact that requires a trial. Most probably know the citation for the rule by heart. Zuckerman v. City of New York, 49 N.Y.2d 557, 404 N.E.2d 718 (1980), is one of the most frequently cited cases in New York. It is common practice, based on that rule, to disregard inadmissible evidence and, most often, to not even offer it in opposition to a summary judgement motion. After all, why should you offer evidence that will not be considered? There is really only one problem with this idea: it is wrong.

The actual quote from Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 404 N.E.2d 718, 720 (1980) is:

We have repeatedly held that one opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim or must demonstrate acceptable excuse for his failure to meet the requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient (Alvord and Swift v. Stewart M. Muller Constr. Co., 46 N.Y.2d 276, 281-282, 413 N.Y.S.2d 309, 385 N.E.2d 1238; Fried v. Bower & Gardner, 46 N.Y.2d 765, 767, 413 N.Y.S.2d 650, 386 N.E.2d 258; Platzman v. American Totalisator Co., 45 N.Y.2d 910, 912, 411 N.Y.S.2d 230, 383 N.E.2d 876; Mallad Constr. Corp. v. County Fed. Sav. & Loan Ass'n, 32 N.Y.2d 285, 290, 344 N.Y.S.2d 925, 298 N.E.2d 96).

The rule does not mean that a party should self-edit itself from submitting inadmissible evidence in opposition to a motion for summary judgement. Whereas inadmissible evidence is insufficient on its own, it can help turn mere expressions of hope into genuine issues of fact that require a trial.

The case that made this clear is Gier v. CGF Health Sys., Inc., 307 A.D.2d 729, 762 N.Y.S.2d 472 (4th Dept. 2003). It is a medical malpractice/wrongful death action in which the decedent was admitted to the hospital with a diagnosis of a recurrent abdominal hernia and died four hours later of a ruptured abdominal aortic aneurysm. The central issue was whether the Defendant, who was the on-call attending physician at the time the decedent was admitted to the hospital, was notified of her admission before his shift ended. If he was notified then there was the requisite physician-patient relationship; otherwise, there was not. The Defendant testified at his deposition that he had not been notified and he submitted his deposition testimony in support of his motion for summary judgement to dismiss the complaint against him.

In opposition, Plaintiff submitted affidavits of two doctors, Cheng and Bruce. Neither remembered the specific circumstances of decedent's admission. Instead, they each testified to habit evidence: that it was normal practice and procedure for the attending physician, whoever, that might be, to be notified when a patient is admitted to the hospital. Those two affidavits were insufficient, according to the lower court, to raise a genuine issue of material, triable fact.

Plaintiff also submitted the decedent's hospital chart, which contained numerous references to the Defendant as the decedent's attending physician and, more importantly, the last major piece of evidence: an unsworn memorandum of a Dr. Cudmore, which stated that the chief surgical resident told Dr. Cudmore that the Defendant had been notified of the decedent's admission while he was still on duty. The lower court did not even consider it, because it clearly was inadmissible. It was an unsworn document that relayed two unsworn, hearsay, statements; it was double hearsay, at least.

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February 13, 2014

The Terms And Conditions Of A Contract For The Sale Of Goods In New York: Do Purchase Orders Really Matter?

garbage can dark - Copy.jpgA contract for the sale of goods: one business, or merchant, buys a part from another. They agree on quantity, price, and delivery. The Seller sends the Buyer a purchase order and delivers the goods, and the Buyer pays. It all sounds easy, but as we previously said, a lot can go wrong in a seemingly simple transaction.

What happens if the Buyer asks the Seller to recommend a part but it doesn't work because it's not the right one? What if the Buyer says he needs a part that meets certain specs, the Seller delivers what the Buyer asks for, but the Buyer asks for the wrong thing? What if the Seller says the part meets the specs but it doesn't? Does the Buyer always have to pay for the part or can he return it, and does the Seller always have to take it back?

Some cases illustrate the complexities involved in a contract for the sale of goods better than others. Many times, you can find the most detailed application of the rules in a lower court opinion. One such case is Kabbalah Jeans, Inc. v. CN USA Int'l Corp., 26 Misc. 3d 1241(A), 907 N.Y.S.2d 438 (Sup. Ct. Kings County 2010). It's instructive because it shows how rules designed to make things simple can sometimes make things difficult.

In a sale of goods dispute between merchants, the two most important, and meaningful, titles, are Buyer and Seller.

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February 10, 2014

How To Win A Trial: Think Like an Outsider; Trust a Juror

Box.Outside.book.small - Copy.jpgTrial lawyers are problem solvers. That is what they have to do and what their clients expect them to do. The biggest problem they face is how to persuade a jury. After all, the last time a trial went completely as planned was probably the first time one ever did.

Trial attorneys often rely on experts, and expertise, to win their case. The idea is that the average juror will recognize that the experts, whether lawyers or expert witnesses, know best and will follow along. The best way to solve a problem, though, just might be to think outside the box, which is something experts, including trial attorneys, do not always do best.

New research shows that finding creative solutions, from unexpected places, often leads to the best results, and that average people often can solve even complex, highly technical, problems better than experts and computers alike. Though the research has to do with molecular science, it sheds light on how you can win a trial.

Researchers, from Carnegie Mellon and Stanford University, have set out to better understand how RNA, which is one of the three macromolecules essential for human life, is designed. The hope is that this can lead to better ways to treat, or even cure, diseases or, believe it or not, even lead to building better computers, with RNA.

Normally the researchers would have done what they do best: conduct the research themselves. They would have used their knowledge, training, and experience to try to come up with the best designs. This time, however, they did something different: they invited people who had absolutely no special training, to design RNA. Surprisingly, or maybe not, those average people came up with far better designs than the experts.

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November 29, 2013

Do You Need A Reasonable Excuse In Order To Vacate A Default Judgement In New York? Not Always

notepad-1066735-m.jpgVacating a default judgement in New York, as we have previously discussed, is not always easy. Often it is up to the discretion of the trial court. There are certain times, however, when the defaulting party may not need a reasonable excuse for failing to appear, as long as it does not wait too long to ask the court to excuse the default. This can include parties, such as corporate defendants, who have failed to receive a summons and complaint at least partially through their own fault.

CPLR §317 provides in relevant part:

A person served with a summons other than by personal delivery to him or to his agent for service designated under rule 318, within or without the state, who does not appear may be allowed to defend the action within one year after he obtains knowledge of entry of the judgment, but in no event more than five years after such entry, upon a finding of the court that he did not personally receive notice of the summons in time to defend and has a meritorious defense. If the defense is successful, the court may direct and enforce restitution in the same manner and subject to the same conditions as where a judgment is reversed or modified on appeal. This section does not apply to an action for divorce, annulment or partition.

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November 25, 2013

Trials, Motions, Appeals & Persuasion: How Can You Win Your Case?

tranquility-1-998521-m.jpgWe've spent a decent amount of time discussing how lawyers try to persuade people. That, after all, really is their job: to convince a decision maker, be it a judge, jury, or appellate court, that their client is right and should have won, should live to fight another day, or at least should not have lost quite as badly as he did.

Does the way a lawyer persuades depend on the means by which he has to do it? Does it really make a difference if the lawyer is standing up before a jury or a judge at trial; laying out the case for why his client is entitled to judgement as a matter of law on a summary judgement motion; or is writing a brief on appeal? Does the art of persuasion depend on the means of persuasion, or is it more universal than that?

It's not always easy to figure out why one side wins and one side loses. A lawyer can only play the hand he's dealt, but he can do a lot to get everything out of the cards that he's been given. Whether it's Victor Sifuentes, Alicia Florrick, Joyce Davenport, or Jack McCoy, no two attorneys approach the same case the same way, and winning is never as easy as it looks on TV. When real life attorneys try to persuade, though, the successful ones always seem to keep the basics in mind.

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November 20, 2013

How Can You Win A Motion For Summary Judgement In New York? Keep It Simple

harvested-corn-field-1404711-m.jpgSummary judgement motions in New York are strange things. When used in the right way they can bring long, arduous litigation to an end merely by submitting papers to the court, without the need to call messy witnesses, susceptible to skillful cross-examination, to trial to be judged by a jury. They can be a lawyer's best friend, or worst enemy. A lot depends upon the approach a lawyer takes towards them. They can take the place of a trial but how you approach them should be much like a trial. The actual motion depends upon the facts and circumstances of the particular case. There is an acronym that sums it up, one I often say to myself: KISS (as in: keep it simple, stupid). There's also an apt idiom: break it down. Like a trial, it's important to stay focused and to keep the decision makers focused on what you believe is important; because you have to give them a reason to rule in your client's favor.

The legal standard in New York for succeeding on, and for defeating, a motion for summary judgement, is pretty clear. To win a motion for summary judgement, a party has to show that it is entitled to judgement as a matter of law. That sounds right, even if it is kind of a definition without a meaning. What it really means is that there cannot be any material issue of triable fact. That sounds a little more definite; after all, there are more complex, legalistic terms in that definition than in the first. But is it really clear? This is the first place to break it down: it means that there cannot be any real reason to go to trial. If there is something important for the jury to decide, something important enough that the way the jury decides it will go a long way towards determining whether one party or the other will win or lose the case, then that is where you are going: to trial. See Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 404 N.E.2d 718, 720 (1980).

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November 8, 2013

How Do You Prepare a Witness to Testify? The Art of Listening

carrot-and-potato-726930-m.jpgHow do you prepare a witness to testify at trial? That seems like a fair question; but what's the best way to do it? It seems like there are as many different answers as there are people to answer it.

Everyone knows that when you have a trial, you need witnesses, and, no matter what kind of case, those witnesses need to testify. If a plaintiff sues a defendant, chances are that the plaintiff will testify about how the defendant caused her all sorts of injury, pain and suffering, heartache and grief, and should pay her an awful lot of money as a result. Likewise, the Defendant most likely will testify that he didn't hurt anyone or anything; maybe it was all her fault, and, no matter whose fault it was, she wasn't hurt that badly anyway. The same is pretty much true for any commercial dispute: the buyer will say she bought the part the seller recommended and it didn't work as advertised so she wants her money back. The seller will say he gave the buyer exactly what she asked for and, if the part really didn't work, the buyer must have installed it the wrong way in the wrong application.

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