Saturday, December 31, 2005

Nassau DA-Elect to Nassau Criminal Defense Bar: When It Comes To DWI, IT'S ON!!

In her first policy statement since shocking Nassau County's legal circle with her election win over long time Nassau County DA Dennis Dillon , Nassau District Attorney Elect Kathleen Rice has announced that she intends to be tough on DWI. In her remarks before the New Year's day holiday, she has told the public that she intends not to plea bargain Felony DWI charges. Hence if you are arrested in Nassau County for Felony DWI you can expect to go to trial or go to jail.

Ms. Rice is not the first to notice that many Long Island lawyers who handle DWI's are reticent to go to trial. It will now be important not only to try Felony DWI's, but counsel should seriously consider trying all DWI charges, especially those at the misdemeanor level. Those first misdemeanor convictions are the predicate to a later felony charge.

Defendants in Nassau County often think that DWI's are unwinnable. Actually, if the money is invested into the defense, the cases are very beatable. I have won cases where the defendant was painting all day and went out to buy a cup of coffee. He was stopped and blew a .15 on the machine. I have won buy attacking the documents that support the arrest or the lack thereof. I have even won by showing documents and evidence was missing.

A major problem, is that many first time offenders do not hire expierenced DWI lawyers. They go with attorneys who have plea bargained a couple of criminal cases or who actually lie about their credentials. Learning to hire a real criminal lawyer, is one way to put a stop to prosecution edicts such as this one. Nothing stops expensive rules like this one than losing at trial.

Now the prosecution does not give winning information up willingly. We had to dig for it at hearings. We had to make motions, and seek discovery. We had to hire experts and we had to purchase manuals. We had to attend seminars. We had to go the extra mile (or two). Our clients were told ahead of time that the defense was going to cost over Six Thousand dollars and in fact some cases have cost over Twenty Thousand Dollars. Nevertheless, it was a better result than going to jail or losing an important job. DWI cases can be won. The machine is not perfect, in fact it is far from it. Many clients hired dump truck attorneys who bled them and pled them for a few hundred dollars. These people would return to us with even greater problems thanks to the half-ass efforts of prior non-criminal defense attorney counsel.

The facts are, that many, many, DWI arrests do not, and should not, end in conviction when the cases go to trial. The only issue is: Does the Nassau bar have the intestinal fortitude to be honest with defendants to tell them what the cost of a conviction really is, and how much a "real" defense is going to cost. Do clients, their families, and employers have the means and the trust to go forward with an attorney who knows how to handle this kind of a case.

Feel free to contact us at or leave us a comment below.

Happy New Year's Day to All :

This is just a fast note to all our friends: defense attorneys, prosecutors, police and law enforcement officers, Judges, and especially our family and clients. From all of us here at the Law Offices of Anthony J. Colleluori and Associates LLC and Long Island (Criminal)Trial Law, we wish you all a happy and healthy New Year. We look forward to continuing to bring you the best in legal analysis on the net regualarly in the coming year.

Thursday, December 29, 2005

DWI Refusal Precluded:Court Rules that Two Hours Rule Applies to Refusals

Our office has had a victory precluding the prosecution from using a client's refusal to submit to a breath test offered him over two hours after he was arrested for Driving While Intoxicated.

The decision in People v. Cavaliere, Docket No. 3906C/04 Bronx County Marcus J. (December 14,2005), deals with whether or not the prosecution can use a DWI defendant's refusal to take a breath test when such test is offered to the suspect over two hours after the arrest.

In the Cavaliere case, the defendant was arrested after being involved in a multi-car accident on the Bruckner Expressway in the Bronx. The police claim to have smelled a strong odor of alcohol on the defendant's breath and witnesses claim that the defendant appeared intoxicated after the accident. The breath test was offered to the defendant well over two hours after the defendant was arrested.

The defendant moved to preclude the test refusal based on the NYPD's violation of VTL Sec. 1194(2)(a)(1,)in that the test was not offered to the defendant until after two hours from the time of the defendants arrest. See People v. Brol, 81 AD2d 739 (4th Dept. 1981). The prosecution argued that Brol was overruled by the Court of Appeals in People v. Atkins, 85 NY2sd 826(1995). It was the defendant's contention that Atkins is mistakenly described as holding that the "two hour rule" was no longer applicable in its entirety.

The court ruled that the breath test was not offered with in two hours and thus the refusal should be precluded. The People made a motion to reargue. Again arguing that the Brol case was overruled by Atkins the People filed an exhaustive brief discussing the history of the ill fated "two hour rule." It urged the court should join other lower courts in finding that the "two hour rule" no longer a precluded a test refusal from coming into evidence after an offer of a test post two hours from arrest. The Defense argued that such a rule would subject a defendant to a refusal if he was offered the test anytime after arrest and allow the prosecution to argue the test was refused because of a consienceness of guilt.

The Court in its decision again ruled the refusal precluded as outside the
strictures of VTL Sec. 1194(2)(a)(1). The court held that Atkins only permitted the use of a breath test taken more than two hours after the arrest when the defendant consented to taking the test more than two hours after the arrest. The court held here however that Atkins does not hold that evidence of a REFUSAL obtained more than two hours after arrest is admissible at trial. By holding that the test results obtained by consent are admissible the Court of Appeals did not announce new law or imply that the "Two Hour Rule" was no longer viable. Atkins only holds that tests consented to after two hours from arrest are admissible and that does not mean that refusals are admissible.

This win should be credited to John J. Marshall Jr. who won the original motion and Amy Hsu who wrote the major part of the response to People's motion to reargue both on behalf of The Law Offices of Anthony J. Colleluori & Associates LLC.

Wednesday, December 28, 2005

A few quick Blawg notes that I found interesting

A quick look through my blog roll at some of the articles I think might be of interest to you Trial Lawyer types:

The Rochester Democrat & Chronicle had a really interesting piece on NYS Court of Appeals Judge Robert Smith, the courts conservative libertarian. (I knew there were more like me somewhere here in NY.) Follow this link. The article has a voting record on criminal appeals and notes that while Judge Smith is a big fan of Justices Scalia and Thomas up at SCOTUS, he mostly likes their libertarian streak. Me too.
UPDATE: Forgot to attribute the above to the really superb blog How Appealing by Howard Bashman

Our friends at DWIBLOG over in California have posted about how police organizations, with DOJ funding, are now going after non drunk drivers for being "Buzzed." Pretty soon MADD will try to get people who THINK about drinking and driving arrested. This post is very scary.

Professor Berman over at Sentencing Law and Policy writes here about a recent 7th circuit case that upholds a ridiculously long 40 year sentence for possession and sale of a moderate amount of cocaine. The decision reminds the district courts that Booker suggests a certain proportionality and that they need to give themselves room at the top of the USSG for the really bad guys.

Yuachung Lee does a very nice cover of the Second Circuit's decision in US v. Irving. The US Court of Appeals Second Circuit overturned a few counts that were based on uncooberated writings found in defendant's personal journal. It is a long post but Yuachung does the case justice here. See also his discussion of US v. Alaa Al-Sadawi which deals with when a person's leaving the jurisdiction constitutes flight as a consciousness of guilt.

You know those ridiculous "perp walks" that the police hold to show off defendants to the press like they were some kind of hunting trophy, and which really are meant to contaminate the jury pool and destroy the clients life before trial? Well White Collar Crime Profs Blawg has some good news... If you live in Colorado. Read all about it
at this post. Maybe we should bring this to the attention of both DA Tom Spota and DA-elect Kathleen Rice. Maybe we should bring it up with the legislature.

Then there is this cautionary tale about obtaining a legal fee in a money laundering case.

That is it for now. Feel free to contact us if you have any ideas for topics or columns for this blog at, or leave a message below.

The Law of Partial Verdicts: People v. Echevarria

The big news today is going to be the Court of Appeals decision on Depraved Indifference Murder. I however, think that Echevarria, 2005 NY Slip Op 09812, is more important to the criminal practioner hence...

In Echevarria the defendant goes to score drugs at the home of acquaintances and kills them while trying to steal their drugs. He is charged with Murder in the First Degree (multiple deaths) and Murder in the Second Degree. The defense argues intoxication.

Without objection, the court charges the jury with both counts. It gives no instruction as to the order with which to consider the counts; a plain error. (See People v Boettcher, 69 NY2d 174 [1987]). Thereafter, the jury announces it has a partial verdict. Wary of the fact that the jury could have considered the lesser charge first, the prosecutor argued that the court should not take the verdict and should order the jury to complete deliberations. (See People v. Fuller,96 NY2d 881 [2001]). The defense attorney told the jury that Fuller was not an issue and asked for the partial verdict. The court agreed.

The jury came back guilty on the Second Degree Murders. Then they were told to deliberate on the remaining charges. No objection by defense counsel. Next day the Murder in the First comes back guilty. Result of course is that the Court of Appeals upholds the verdict.

The law on partial verdicts holds that if the partial verdict comes in on the lesser included count, the higher charge is deemed acquitted. (See Fuller) The defense should have objected to the continued deliberations. However, after arguing that Fuller was not at issue here, counsel would be hard pressed to object. The defense objection may have been a low ball but should have been made anyway. (Yeah that would mean that counsel could never appear before that judge again but...)

The real error came in failing to require the court charge the jury to consider the counts in order; the most serious count first. This is probably the prosecutors burden. If the second degree murder charge was the lesser included of the first degree murder charge, it should have only been reached after the verdict on the first degree charge had been decided. If the jury impasses on the First Degree charge, and goes to the Second Degree charge and thereafter announces it's verdict as partial, the First Degree charge falls whether or not they convict or acquit.

If the Prosecutor fails to ask for the Boettcher instruction and then argues Fuller, defense counsel should argue the prosecutor waived Fuller by failing to ask for the Boettcher instruction. In the case at bar the defendant waived Fuller by arguing it was not at issue here. Of course it is hard to be perfect under the heat of battle. Hence spending a few hours on jury charges prior to trial begining is an important part of trial preparation.

If you have any Ideas for subjects or cases you would like us to discuss or if you just want to reach me directly you can contact me thru our website at

Monday, December 26, 2005

NY State Court of Appeals Applies Crawford v. Washington

In People v. Goldstein,2005 NY Slip Op 09654 (2005), the New York Court of Appeals was confronted by a murder case where the defendant attacked a unsuspecting woman and threw her off a subway platform in front of an oncoming train. There was substantial testimony offered by both the defense and the government's psychiatrists. The Doctors all agreed that the defendant was mentally ill. However, the prosecution’s expert predictable decided that the illness did not render the defendant legally insane. Part of that doctor's testimony included the basis of the Doctor's conclusions. Rather than rely on just the statements of the defendant, this expert felt she should speak to non-testifying third parties who witnessed other things the defendant had done in his life. Those things supported her finding that the defendant was a predator, and not just an ordinary insane individual. Her testimony, which encapsulated the hearsay stories of six other witnesses, came in over defense objection.

On appeal, the Court of Appeals dealt with the junk science part of the case quickly but disconcertingly. It held that, although only a small minority of experts accepts the notion that third party accounts aid in diagnosis, enough find the approach to yield the kind of material that is reliable and widely accepted in the field.

I find that this is the biggest problem with the decision. It is clear in the decision, that the cross-examination of the witness on the issue of widespread acceptance in the field was not deep enough, to explore the level of professional acceptance. Now we will have prosecutors arguing for a rule that "Forensic study into the psyche of a defendant must include a review of the defendants past acts and interviews with witnesses to those acts" whose testimony would never be permissible in the governments' case in chief.

However, the court did not reach that issue here. In fact, it specifically refused to acknowledge that NY Law is the same as the Federal Rule of Evidence 703 with regard to that issue.

The Court of Appeals instead looked at the new federal issue raised by Crawford v. Washington, 541 US 36 (2004). It decided, that under the US Constitution the defendant's conviction here must be overturned. The court cites both the 6th amendment’s language in the confrontation clause and language in the NY State Constitution’ Article I Section 6, however it relied on federal precedent for its decision. (In fact the dissent noted that Crawford, was only recently settled law and that giving it too much weight at this juncture could expose this decision to criticism should the Supreme Court of the United States not go as far as the majority did here. I have no reason to think that this six to one decision would be different if it were decided on state grounds alone. In fact, given the strength of the language in the decision the state constitutional argument might yield an even stronger result.)

The court held that while out of court statements not offered for the proof of the matter asserted are still admissible with proper precaution, the jury could not give the prosecution’s expert any weight unless they also believed the truth of the statements of the out of court declarants. Hence, the evidence had to be hearsay. They then acknowledged that Crawford had done away with the absolute right to offer the statements of witnesses who could otherwise not be cross-examined.

The dissent strongly criticized the majority, noting that even if the jury rejected all the hearsay, the proof was overwhelmingly in favor of conviction. Hence, it called on the majority to apply harmless error analysis to the decision. The majority refused however. It did note how hard this decision might be for the victim’s family to accept. However it noted that the right to cross examine one’s accusers sits at the very base of American liberty and must be upheld in spite of the pain that this decision may cause the victims family. I am happy to see the court at least acknowledged that the victims were going to suffer in a third retrial. However, the same trend can also be scary. Appellate courts are supposed to decide these cases without prejudice and on the law alone. If a court thinks too much about the fallout or the effect of the decision, it could leave its duty on the table and do the popular thing and not the right thing.

If you have any thoughts on this or any other trial law case, feel free to leave a comment for me at

Sunday, December 18, 2005

When Attacking an Inventory Search, Follow the "Guide"

The NYS Supreme Court 2nd Department has given us a few end of the year decisions to write about.Over the next few posts I am going to try to bring a few to you. The decision in People v Elpenord 2005 NY Slip Op 09327 reminds defense counsel that when confronted with an inventory search, one of the things that you must do is to make sure you hold police to their procedures. Fortunately the procedure they must follow is in the Patrol Guide.

In Elpenord the Nassau County Police Department received a radio run for shots fired. The 911 call was devoid of description of person or vehicle (it was alleged a car sped away from the scene.) The police see a speeding car in the vicinity of the shooting scene and try to pull the car over. It leads them on a chase and finally when pulled over the driver is without a valid license or registration. He tells police the vehicle belongs to his mother (it did) and that she gave him permission to use the car(she had.) Police pull him out of the vehicle for speeding. They then allegedly search the car to inventory the contents. The trial court held that the search was legal even though the officers failed to take any of the steps necessary to conduct an inventory search of the vehicle including filling out an inventory search form or even noting the search in their memo books. (In fairness they did start to fill out the form but stopped when they found a gun in a black bag in the trunk)

The Court noted that inventory searches at the scene of a valid vehicle and traffic law arrest are only permitted when they are "conducted in accordance with standard police procedures which limit the discretion of the searching officer (see People v Galak, 80 NY2d 715, 718). Such searches advance three specific objectives: protecting the owner's property while the police retain custody of the vehicle, insuring the police against claims of lost or stolen property, and guarding the police against dangers that might otherwise go undetected (see Colorado v Bertine, 479 US 367, 372; People v Galak, supra; see also People v Cammock, 144 AD2d 375). "In its modern Fourth Amendment jurisprudence, the [United States] Supreme Court has held that the reasonableness of a search is calculated by weighing the governmental and societal interests advanced by the search against the individual's right to be free from arbitrary interference by law enforcement officers" (People v Galak, supra at 118, citing Colorado v Bertine, supra). "While the discovery of incriminating evidence may be a consequence of an inventory search, it should not be its purpose" (People v Russell, 13 AD3d 655, 657). It is the People's burden to demonstrate the legality of police conduct in the first instance (see People v Thomas, 291 AD2d 462, 463)."
The court found that the search neither protected the property of the citizen nor did it protect the police department against an unwarranted claim for stolen property and thus was a pretext search. The court thus overturned the conviction for the weapon possession and ordered the defendant sentenced on the violations.

If confronted with an inventory search it would be wise if the defense counsel asked the Prosecutor for a copy of the patrol guide. It would be a good idea to subpeona it if they will not give it to you. This case can be used to back up the need to have the item. Remember when issuing a subpeona for a governmental agency, you must have the subpeona So Ordered by a court.

If you are aware of a case or decision that would be helpful to trial lawyers who practice in either the Eastern or Southern District of the US District Court or the First or Second Departments of the NY State Supreme Court, please send me an E-mail at

Sunday, November 20, 2005

A prisoner's civil rights case win

A 42 USC §1983 Win in US District Court EDNY

Mastroianni v. Reilly, Neal and Minetti, 02 Civ. 846 (ADS) (ETB).

A couple of years ago I accepted an assignment to represent a prisoner held at the Nassau County Correctional Center.  The client’s claim was that he had a heart attack due to the failure of the jail to administer his heart medicine on any type of a consistent basis.  

The client filed a number of grievances about not getting adequate medical care.  Each time, he would get a meeting with a grievance officer. They would agree to drop the grievance if he received his medicine and his other needs were addressed.  Each time he would get his medicine for a while, only to have it denied again after a week or two.  This medicine included his nitroglycerinen, often dispensed to a patient to use as they feel they need it.

After filing the complaint the county and the medical defendants moved to dismiss, as the plaintiff failed to exhaust his administrative remedies.  At a hearing held before a US Magistrate, there was testimony that the plaintiff filed his grievances, would have them addressed, thereby settling and withdrawing the grievance, and then after a while the treatments would end.  Testimony also showed that when the plaintiff tried to reinstate the grievance he would have to begin the process from scratch.  In other words he could have his medicine or his grievance not both.

The Magistrate found that the plaintiff did not exhaust administrative remedies.  Plaintiff challenged the findings.  Last Month US District Court Judge Arthur Spatt ruled that where the plaintiff was in effect precluded from exhausting administrative remedies .
While acknowledging that a prisoner must exhaust administrative remedies in order to get past the affirmative defense of failure to exhaust, the court cited a recent Second Circuit decision as follows:
However, in certain circumstances, a prisoner’s failure to exhaust available
administrative remedies may be excused. Berry v. Kerik, 366 F.3d 85, 87-88 (2d Cir.
Citing Hemphill v. N.Y., 380 F.3d 680, 686 (2d Cir. 2004), the court reviewed the factors the court must look at to determine if the prisoner’s failure to exhaust may be excused.
Judge Spatt noted that the court had to determine (1) What administrative remedies were “available” to the plaintiff; (2)If the defendant has waived the non-exhaustion defense by failing to raise or preserve it; or (3) the defendant’s own actions estop them from raising non-exhaustion. Id.
In addition, the court held that “a plaintiff may successfully refute a defendant’s contention that he has failed to exhaust his administrative remedies if he can demonstrate that . . . ‘special circumstances’ justify his failure to comply with this requirement.” Hoover v. Hardman, No. 99 CIv. 1855, 20005 WL 1949890, at * 2 (N.D.N.Y. Aug. 15, 2005) (quoting Hemphill, 380 F.3d at 686).
In the Mastroianni case there was both a failure of the defendant’s to prove plaintiff failed to exhaust administrative remedies and special circumstances.  Citing Sultan v. Wright, 265 F.Supp.2d 292 (S.D.N.Y. 2003), the court held that the fact that the defendant’s grievance officer addressed the grievance and promised to correct the problem, negated plaintiff’s need to appeal the grievance to a higher board.  It held that :
An inmate is not required under the PLRA to continue to
complain, as here, after his grievance has been
addressed, but the problem has not been corrected.
Marvin v. Goord, 255 F.3d 40, 43 n. 3 (2d Cir. 2001). If
a prisoner had to grieve non-compliance with favorable
decisions under the PLRA, prison officials could keep
prisoners out of court indefinitely by saying “yes” to
their grievances and “no” in practice. Kaplan v. New
York State Dep’t of Corr. Servs., No. 99 Civ. 5856, 2000
WL 959728, at *3 (S.D.N.Y. July 10, 2000); McGrath v,
Johnson, 67 F. Supp. 2d 499, 510 (E.D. Pa. 1999).
As such we are back in court and Nassau County is either going to have to start keeping its promises to inmates or come up with a better way of  screwing them out of their day in court.

An Announcement

Well its been a while. Cases and home life have come in the way of blogging. A few announcements:

1. I will be making an appearance on Tuesday November on a new legal show hosted by Tom Donavan and Robert "Bobby" Moore. The show is called New York Law Radio and will be on WTHE 1520 on the AM dial. I believe that the topics for this initial show will be general law with a focus on criminal and civil rights law. For more information go to

2. If You have received a decision that you would like to see discussed here please send it to Long Island (Criminal) Trial Law c/o The Law Offices of Anthony J. Colleluori and Associates, 180 Froehlich Farm Blvd, Woodbury, NY 11797. I am especially looking for cases that have been decided in the lower courts that are not featured in the NY Law Journal or in the NY Supplements. The decisions need not be a win for the defense, and as you know does not have to be limited to criminal court cases. If the case has a criminal law aspect to it, it is welcomed here.

If you would like to recommend a topic for this blog or otherwise speak to the author you can leave a message here or at

Saturday, October 08, 2005

A Bill of Client's Rights For The Accused: A WIKI PROJECT

Arbitrary and Capricious: Severance and sufferance

My blogging friend Skelly over at one of my favorite blogs for criminal trial lawyers Arbitrary and Capricious had a post about a "virus" motion* that is going around that is meant to set up the client's public defender for removal/disqualification.
I will put aside the fact that Public Defenders are more often than not some of the best lawyers in the courtroom and that no decent lawyer would sign the document provided by the "virus", and focus instead on the use of the document as a starting point for public defense lawyers and maybe all lawyers to discuss the concepts of loyalty and allegiance in the attorney-client relationship.

As I am far from the only lawyer who has an opinion on these matters I thought we might turn this into a Wiki project. Until I find a home for it I figure authors can leave comments here and then I'll incorporate them into the document.
Any way, here goes:

As your court-appointed defense attorney, I will
1. Provide a diligent and vigorous
defense to be presented on your behalf. I will competently pursue a plea bargain or if none is available or acceptable I will prepare the case for trial without haste or unnecessary delay

2. Whether you are guilty or innocent I will vigorously represent you. I will force the prosecution to prove each and every element of your charge beyond a reasonable doubt. MY SOLE ALLEGIANCE IS TO YOU, MY CLIENT, THE CONSTITUTION OF THE UNITED STATES OF AMERICA AND,THE CONSTITUTION, LAWS AND RULES OF THE STATE OF (your state).

3. I will accept your version of the facts until such time as I am convinced by facts that it is not true. You will agree that I am a professional and that I can provide a defense even if I am unconvinced of its truth.

4. I will not subjourn perjury by anyone. Period.

5. I will provide you with the best estimate I can of your case. I will not try to convince you to take a plea, but will respect your ability to decide for yourself what offers are in your best interest. I will not participate in any attempts to practice bullpen therapy.

6. If whether by your refusal to cooperate or because of a conflict between us I become unable to adequately represent you, I will request to be relieved from the case.

7. I state to you now that I do not harbor any bias(racial, ethnic, class, gender, or religious) against you. Nor will my efforts be increased or decreased based on any common backround between us nor because of how I am compensated in this case. You will receive the same quality representation from me whether you are an assigned or retained client.

8. I will treat you with respect and courtesy and expect the same from you. I do not believe that such means we will not disagree or even argue. I do believe it to mean that we will speak with a civil tongue, we will listen to each other even if we do not like what the other is saying and neither of us will threaten any harm to each other.

9. I will attempt to keep all objectionable evidence out of the trial and will do my best to make a record for appeal while still keeping an eye on winning the trial so that an appeal will be unnecessary

10. I will either return your phone calls within 48 hours of receiving them or if I deem it appropriate I will have a member of my staff do so. If you still need to speak to me you will tell my staff. Finally you will use SMS and E-mail where appropriate to aid our communication.

11. I will make copies of all of your documents available to you and will explain them to you.

12. I will keep you abreast of all new major developments in your case within 36 hours of learning of them.

13. If we are at trial or hearings, I will not agree to speak on the record without you being present unless you say in advance that it is ok to do so.

14. I will do everything within my ability to bring your case to a successful end.

Well that is a start. Now you all can post your thoughts about this and if anybody knows how I can turn this into a True WIKI let me know. You can leave a message here or reach me at Thanks

* A "virus" motion is a document usually written in pseudo-legal speak that circulates throughout a jail or prison and then spreads from lockup to lock up. The prisoners use the virus motion by changing a few parts of the documents and then vex their otherwise competent defense lawyers by screwing up their defense and of course forcing the defense lawyer to either adopt the motion and keep his client's trust or deny the motion and destroy the lawyer client relationship

Thursday, September 22, 2005

The Scleroderma Foundation Gala: Helping a Good Cause

From our sister blog That Lawyer Dude:

They say that a friend in need is a friend indeed. I am here to say thank you so very much to Uncivil Litigator for this post about my family and of course about the fund raiser for the Scleroderma Foundation's National Gala.

For those of you who do not know, almost 8 years ago my beautiful wife of now 20 years (yesterday!), MaryRose, was diagnosed with Scleroderma. We were told she had 24-30 more months to live. We were told how she would die a painful and agonizing death to a killer that knows no moral boundries.

I do not have to tell you how devastated we were. For many years MaryRose had been my mate, my friend, my lover and even for a time my secretary (it was my favorite time of practice, for those who think it can't work, I have never had a better secretary and our life outside the office was just as happy.)

After having our children, MaryRose returned to working. Within a few months, she came down with a mysterious stiffening of her right wrist and pain in her fingertips. We thought it might be old age (she was mid 30's). We were sadly wrong.

Scleroderma is an auto-immune disease. In layman's terms the body is rejecting something with-in it (we think it is fetal cells we are not sure.) The body's reaction is to over-produce collagen which is scar tissue. This scar tissue builds up subcutaneously ( below the surface of the skin) crushing the bloodflow in the capillaries to the extremities and causing great pain (think frostbite only it never goes away). At the same time it is also scarring the organs (heart, liver, kidney, and most often lungs.) This scaring makes these organs inelastic and when they cannot move to pump blood, urine, air, etc our patients die. Scleroderma effects mostly young mothers or women in their child bearing years (men do get it too, about 15% of our patients are men.) With Puberty begining earlier we are seeing far too many cases of 12-18 year olds being diagnosed with the disease.

There is no cure. Thanks to research funded at the start by the Scleroderma Foundation, our patients are out-living the old prognosis. Their quality of life is much better than it was, but I would not say that it is good. As MaryRose likes to remind me, it is better than the alternative.

Everybody with Scleroderma has a different reaction to it. In MaryRose's case, she can barely walk and her hands are so malformed she cannot really hold even a dinner plate. Her pain is so palpable it makes me want to cry.

She has no more cushioning in her feet, she seemingly walks right on bone and cartlidge. Her skin is so tight throughout her body she can not lift her hands above her head. When she tries, you can see the skin pull up from her knees. The steroids they have given her to keep the disease at rest, has caused her to get osteoporosis.

MaryRose refuses the pain killers they can prescribe, because they need to be so strong that they will effect her alertness and she refuses not to be there for our two sons. She would rather that they remember her for her bravery than for being spaced out. Is there any wonder why she is my hero??

A few years ago, I became involved with the Scleroderma Foundation. It is the only organization dedicated to educating supporting and researching this disease. In addition to setting up teaching seminars, patient support groups and sponsoring Doctor seminars, We are the worlds largest private sponsors of research on this dreadful deadly disease.

I am now on the Board of Directors and I am one of the co-chairs of the Development committee. My youngest son Frank is our "team's" walk coordinator. He has raised nearly Twenty Thousand ($20,000)Dollars in the three walk-a-thons we have done. My older boy, Salvatore, has helped me lobby in Washington and has co-chaired a Jazz concert to benefit the foundation that raised over Thirty Five Thousand(35,000) Dollars.

In September of 2001 the Scleroderma Foundation was planning a November Gala in NYC. It was to be held at the World Trade Center's Windows on the World. On September 11th our dreams of a our most successful fundraiser fell with all those beautiful souls who perished with the downing of the Trade Center. Our Foundation took a long time to recover.

Now we were hoping for a triumpant return to NYC on October 24, 2005. However with Katrina's devastation and the wariness over the economy, philanthropic dollars are really scarce. Hence I have turned to some of my blogging buddies for help. IF YOU Would like to help, please click here
and if you can go to the event or have something to donate to our auction or better yet want to sponsor the event, click here . If you would like, you can identify yourself as a friend of That Lawyer Dude.

As a final aside I want to give a big THANK YOU to all of the tireless and generous people who have already worked on or contributed to this worthwhile cause. I especially want to thank Paul Schaffer (Late Nite with David Letterman) who directs the CBS Orchestra and has agreed to host our event.
Thanks for taking the time to read this. Please forward it to a friend and ask that they do the same. Who knows what may happen.

As always you can reach me at at and go to the comments page.

Monday, September 19, 2005

Second Circuit Blog

Second Circuit Blog

I took the summer off! Though tempted by the O'Conner decision to step down,The death of Justice Rehnquist, the Roberts hearings and the aftermath of Katrina, I stayed the course and put other things like my health first. SO to ease my way back I figured I'd let you guys catch up with these cases while I ease my way back into the blogsphere.
For a quick review of some of the summers hottest second circuit decisions the Second Circuit blog is the place to stop! US v. Carr decides that a jury not only can't be told of its nullification rights but that it can be instructed that it has a duty to convict if it feels it has found the defenant guilty of the crime beyond a reasonable doubt. I have long argued that the jury had a right to be told that it could decline to convict, even if they felt the case had been proven beyond a reasonable doubt. Moreover no one would argue otherwise. Nevertheless the Second Circuit insists it can mislead the jury into a conviction, even if that is not what they want to do.
Well I am going to keep trying to find ways to get the concept in front of the jury and then trust in their wisdom.
As always you can leave a comment here or send it to me at

Tuesday, May 31, 2005

Around the Blawgshpere: News Long Island Criminal Trial Lawyers should know about.

If you practice criminal law on Long Island, and you want to be up on the law and lawyering skills that affect our practice, then you have come to the right place. I have been lying here in bed all day (sick with Bronchitis) combing the web just for my fellow Long Island Criminal Trial Lawyers. I hope this post helps you keep up with what is happening out there in the law. In fact this was so much fun (and so educational) that I think I am going to try to offer the best of my favorite blogs every week.

If you are a Long Island Criminal Trial Lawyer, then it is imperative that you read the Second Circuit Blog. This week the Second Circuit explodes with three new cases ( two habeas and one on federal sentencing which I hope to blog about tomorrow here.) I think that Second Circuit Blog should be weekly required reading for the criminal trial lawyer whether on Long Island or elsewhere.

Over at Stay of Execution there is a very good discussion of "lies we tell young lawyers." I have a lengthy comment on there but I really think that it is important that people have a realistic view of the first few year of legal practice.

At Between Lawyers Dennis Kennedy has an article about Phishing, or why I am afraid to open emails.

The guys over at Crime and Federalism blog about a particularly disturbing 8th circuit case and a particularly good 9th circuit case here.

Want to participate in free CLE every week or so? Read the blog at DUI BLOG. The author writes one of the best law firm blogs I read. I learn something new or different almost every time I read it and it is a must stop when I blog roll.

Over at Fourth is a story about a guy who was arrested for possessing laundry detergent. Scroll down a bit to find it. has a very interesting discussion on the new filibuster compromise and a potential Supreme Court vacancy here

One of my friends and a really good commentator on the white collar crime and the criminal sentencing scene, Prof. Ellen Podgor has a great short critique of the SCOTUS Decision in Arthur Anderson, on her White Collar Crime Professor's blog . While I am on this subject; Isn't it about time someone hold the government accountable for ruining people's lives. There seems to be more and more a harsh degree of "we have to get them for something" attitude in the government's prosecutorial scheme. Maybe there are too many of them and they are too busy fishing for something to do. Maybe it is time for conservatives to scale back the number of lawyers in the Justice Department's Criminal Division. I know that this will result in a glut of Real Estate lawyers but it is better than watching them destroy 28,000 careers ( that's how many working folks lost jobs when Anderson had to give up its license.) I mean maybe they need to find something else to do if they have the time and money to come up with this case and Martha Stewart.

Jim Calloway has a blog entry with information about redacting information in PDF files which is becoming more and more important to trial lawyers everyday. I wrote about Jim last week from Miami and since discovering him there I have been reading his blog religiously. Check it out here.

At All Deliberate Speed there is an update and a link to help the attorney's for Ms. Stewart at her sentencing hearing. The case has left me somewhat melancholy. I hate the rules the government is allowed to promulgate with regard to the attorney client privilege. I like Lynne personally. She has always been easy for me to talk to, and she has taught me a lot about being a lawyer (especially when it comes to representing the extremely disliked client.)
I am not fond (I hate) most of her politics, but that doesn't matter to me here. (I am not voting for her, I am just not in favor of the government setting limits on the attorney client relationship especially when we never get to set any for their relationships.) Finally, I do not think I would have signed the agreement she signed. I would have at least sought a restraining order of it. (Maybe she was hoping for a more defense oriented Justice Department after the last Presidential election) If she did what they say she did, I would like to think I would not have, even in protest.
I guess the bottom line is: I do not approve of her actions, but all that would be moot if we would just have the guts to tell the government to back off of civil liberties. Hence I will be hoping for a light sentence for Lynne and a victory on appeal.

Well that's all for this week's Around the Blawgsphere I hope you have found it interesting. As always you can leave a comment for me here or write to me at

Sunday, May 29, 2005

Fatal Motion Drafting 101 or Be Careful What You Wish For...

In People v.Troy Smith, (Index No. 25206/02,)2005 WL 1124097 (N.Y.Dist.Ct.), 2005 N.Y. Slip Op. 25181(District Court, Nassau County, New York)Judge Ken Gartner (quickly becoming a favorite of this column) teaches a painful lesson to defense counsel. Be careful what you ask for you might really get it.

In Smith the court was faced with a motion to reargue an omnibus motion that granted a suppression hearing on a show up instead of precluding the identification testimony because the notice requirement was not complied with. It seems that the defendant filed a motion to preclude the identification testimony or IN THE ALTERNATIVE grant a suppression hearing.

Now for reasons I am not really sure of, the courts of Nassau County really hate to preclude evidence. The law clearly requires it where the government fails to give its notices within 15 days of arraignment. Hence defense counsel in the county, trying to protect themselves from bad decisions at the trial level without screwing up their appellate rights concocted the idea of pleading in the alternative.

The rule seems easy enough to follow. If the defendant is arraigned the prosecution must give notice of any police produced identification procedure within 15 days of the arraignment, unless the prosecution could show good cause as to why it could not comply (ie a death or coma etc. Office screw up is not a good reason.) Nevertheless it was often honored in the breach. Where counsel moved for preclusion but not suppression ,the court would deny preclusion and then render the subsequent motion for suppression untimely.

Now defense counsel, lead by the Nassau Legal Aid Society developed a solution. Move for Preclusion and IF AND ONLY IF preclusion was denied then suppression. Hence both motions were timely and by requesting the court handle the motions in order appellate rights were preserved.

Now the appellate courts have been hemming and hawing about this tactic for a while because they feel that if you received notice of the procedure in time to get a hearing and you asked for the hearing the basic rights protected by CPL 170.30 have been met and there is no need to keep out otherwise good evidence because of an arbitrary time Barred.

Little be little they have been whittling away at the statute wherever counsel has tried to preserve both trial and appeal rights simultaneously. Judge Gartner in his inimitable way explained the reasoning quite well, but he blew the chance to show his true conservative leanings when he substituted the judicial dicta in a few Court of Appeal and Appellate Division ruling for the clear meaning of the statute.

Judge Gartner ruled that "Defendant's motion to suppress show-up identifications on substantive grounds that was granted to extent of ordering Wade hearing established opportunity for pre-trial scrutiny of identifications that invoked exception waiving defendant's alternative motion to preclude evidence of the same show-up identifications pursuant to criminal procedure statute based on People's failure to timely serve notice of intent to use identifications. He went on to explain that the in cases where the defendant moved and received a suppression hearing and where he then lost or withdrew the motion after the hearing had begun he waived preclusion because he had the opportunity to have the issues as to the Id procedure ajudicated. This would make more sense in that it was judicially economical and discourages the use of the suppression hearing as a discovery device (although it is and should be used as a discovery device.)

In the Smith case, the clear wording of the statute and the wording of CPL 250.50 which streamlines motion practice into the dreaded Omnibus motion makes what defense counsel did here seem very fair. She said she was moving for preclusion because the District Attorney's office failed to give proper notice. Then according to the statute (CPL 170.30) she was moving for a suppression hearing only if she lost the preclusion motion (clearly saving the court the trouble of another motion) and thereby waiving her right to appeal the preclusion decision if she proceeded with the motion.

Instead of looking to the clear wording of the law Judge Gartner superimposed his own interpretation on the motion practice and has ruled that even asking for a suppression hearing gives the court the right to ignore the preclusion motion and just grant the hearing thereby rendering the first part of CPL 170.30 moot. Again we are not talking about having lost the preclusion motion and then deciding to waive the appeal and taking the hearing. In this decision the court is deciding it has a choice to preclude or to grant suppression based on a pleading that does not clearly waive the option. Despite the clear wording of the statute.

What is most disappointing in this decision is that Gartner has asked the appellate courts to straighten out some of the differences in interpretation of CPL 170.30. I think the legislature has already done it's job. Get your notice in within 15 days of arraignment or get precluded. 15 days... seems clear enough to me.

If you have any comments about this please feel free to leave a comment here or write to us at

Tuesday, May 24, 2005

Supreme Court turns aside Mexican's appeal of death sentence in dispute involving foreigners' rights

Supreme Court turns aside Mexican's appeal of death sentence in dispute involving foreigners' rights

This is just a short suggestion but an important one nonetheless. Raise issues of International treaties at every turn. In a case I had a number of years ago I believe it was the strength of the issue of non consular consulation that caused a favorable plea bargin. Most treaties require that the consulate be notified before post arrest interrogation begins. If the consulate need not be informed before questioning begins, the treaties often require the suspect be given the opportunity to speak to a consulate official before being questioned.

Saturday, May 21, 2005

NY Court of Appeals ethics decision

I know, I have been downright prolific lately. See what a little time in the tropics can do for a mind frozen on the North Shore's "Frozen Tundra"!
I have been attending the ABA General Practice sections Spring meeting and when not attending mixers and CLE ( see the earlier post on Marketing) I have been sitting in beautiful nooks and crannies of the World Famous FONTAINEBLEAU HOTEL AND TOWERS. My room here is in the towers facing the ocean and overlooking the pools and gardens with a wonderful side view of all of downtown Miami and South Beach (of course).
Anyway because I am traveling alone I have had lots of time to read all the wonderful blogs of other lawyers (blawgs) and to work on this one as well as it's two sisters That Lawyer Dude and our new baby The Positive Review. I am sure once I return to the Island of Long ( as in Long lines, long hours, and Long Beaches.) I will get so busy I will barely have the time to post.

In the meantime... I stumbled across a case I must have missed while I was in the Hospital. People v. Andrades ___NY2d___, ____NYS3d____ (March 29,2005. The Andrades case is a murder case. In it the defendant confessed on video and on paper. Ok it is already going to be a tough case. On the day of the Huntley Hearing the defense attorney informs the court that it would be inappropriate to proceed because he is facing an unstated ethics dilemma. The prosecutor (always the first to pile on when things are going poorly for a defense counsel) objects to a delay and the judge forces our defense colleague to go forward. Ok so far so good. You have made your application now be a good soldier and after preserving your issue go forth and defend. Problem is the Defendant wants to testify ( as is his right) and he wants to lie to the court ( which is NOT his right.)

This is where the case gets twisted. Defense Counsel knows just what to do. Advise the guy not to lie, advise him not to testify. If forced put him on ask name rank and serial number and then ask him what happened. Then sit the hell down and never mention the damn testimony again! It isn't fun and it makes you feel funny but the best thing you can do is to just get it over with quietly. Not this guy, nope, He decides to tell the judge and fact finder just what he intends to do.

Now had counsel said nothing ( which I think is the proper thing to do) the judge would have had to be a moron not to understand that counsel believed his client to be lying. Something the Ct of Appeals acknowledges. Forecasting the play however, (telling the fact finder outright what is going on, or drawing undue attention to it) seems really wrong. Maybe because I actually represent clients and the Court of Appeals does not. Nope they decided that the lawyer's actions were OK!! By a vote of 7-0! (Where is Judge Titone when you really need him.)

Clearly I am not Court of Appeals material (I know that was never in question!) but I am sorry, this just goes too far. It is like the Pacino character in "And Justice For All". This was a murder trial for God's sake. Shouldn't this case have been overruled just because the Attorney client privilege was completely destroyed before the start of the hearing. I mean this guy got 25-life! Shouldn't he even have been entitled to the sham of a procedure where his lawyer pretended to be on his side??

If nothing else, it would have been nice if the Court of Appeals had sustained the case on a harmless error analysis only. They could have said "Even though counsel's actions were wrong here and he should learn to do his job and shut the Hell up, the judge would have to be a moron to have not understood the nature of the ethical conflict counsel had and would have guessed it any way so no harm no foul" (told you I am not destined for the high court.) Instead the court points out that had counsel not told the court of the problem, it would not have allowed the narrative form of testimony. Ridiculous. Given the prior application, once the defendant was called, even had their been an objection it should have been overruled as it would be clear to the court ( and everybody else too) just what counsel was up to.

The problem here is not the perjury. I have no problem with the attorney's decision to question in the narrative if he was absolutely positive the client was about to mislead the court. My problem is that now there can be no lawyer/client relationship. The Client has to feel like his attorney has abandoned his ship. The Court of Appeals by ruling the way it did, now requires counsel to go right up to the precipice of the attorney client privilege and that will have dire effects on the relationship.

Look, it is one thing for me to tell a client you shouldn't lie I will not help you to lie and if you insist I have to ask to be removed from the case and I cannot use your testimony on summation. It leaves the door open for me to give other advice and I can still represent the fellow if I have to. Chances are he will still want my advice and maybe even respect me as a straight shooter. But by forecasting a subtle change of sides appears to be going on. It reminds the client that no one but himself has his best interest in mind. That even his own advocate owes his first duty to the court, a branch of the government.

I think the ruling was unnecessary and decided on a question the court did not have to reach thus I dissent ( as if anyone really cares.)

If you have any thoughts on this please leave a comment here or write to me at

Friday, May 20, 2005

Marketing Your Practice Without Selling Your Soul

I am in Miami Beach at the ABA General Practice/Solo Section Roadshow. The programs focus is on running the small law office. I am going to bring you a few of the tidbits.
Our first speaker was Jim Calloway the Oklahoma Bar Association’s marketing guru. Jim’s full time job is to help solo, small and medium size law firms make a go of it.
In discussing Marketing Jim was quick to point out that

* Marketing is NOT advertising
Ad should only play a small role in your marketing plan. Referrals create your best clients. These people (those referred to you) know you through the referrer and are not as suspicious of you as those that come in cold from… say a yellow page ad. The reference edified you to his contact. The sale so to speak is already complete if you can meet the client’s expectation and price. Edification is an important technique. That type of vouching goes a long way with someone, and is worth cultivating.
Do everything possible to produce satisfied former clients for they will serve as ambassadors and marketers for you for years into the future
How do we make clients SATISFIED?
Write them letters; return their calls the same day; send them newsletters and updates on their case or cases that are like theirs, remember their birthdays and send holiday cards too.
Remember you not only need to do a good job for your client but you need to let them know you have done a good job for them.
No need to brag but regular e-mail about the progress of their case can go a long way as can the snail mail approach. (Moreover, you can bill for it too!)

* Your clients’ perceptions are your reality. Your good work is lost on the client that does not know what you are doing or does not understand it. Cases are complex especially to a neophyte client it is important to be sure he understands the process and the phrases that are about his case. I suggest doing a letter the day after you sign the retainer, outlining how the case will proceed and when you expect to complete each stage enumerated. (Of course, you need to remind the client the schedule is very sketchy and subject to change.)
Like in a very fancy restaurant, the food may be great but bad service will ruin the meal.
Likewise, the sum total of the legal service is affected by your failure to communicate with the client.

* It is important that everyone in the firm be on board with this. To that end, you should give staff a say in the policies you intend to implement. For example if calls are returned within one day, make sure all calls are returned within twenty-four hours. Let staff return calls if you are stuck then instruct them to say “It may take another ‘XX ‘ hours before the lawyer can return your call, is there some way I can help you?”

* Quality is very important. Spell check is great but you need to edit too. Read and reread every document that goes out not only under your name but under the name of others in you office as well. If your name is on the document then it speaks for the quality of your staff, and ultimately of you.

Sometimes the Irrelevant and Immaterial isn't... to the client that is.
Basically, the client needs you to listen… TO THEM! Even though you may think it a waste of your time, they need their advocate to understand what they need from the litigation. Take the matrimonial client for example. A guy is cheating on your client and she comes to your office to vent. She goes into each and every detail of the relationship, from what hotel he took her to and how often, to her favorite color is the same as the color of new Porsche he bought for himself. Now none of that may be important to the ultimate issues in the case. However, it is poor marketing to tell that to the client you may be her only place to vent. You need to build a rapport with her and while you may ultimately not use any of it, it helps the client and makes them feel that you have empathy for them, the case, and others.

Develop a marketing plan, commit it to paper and follow it. The ABA is developing software to help lawyers develop a marketing plan and that should be out this fall but there is no need to wait.
You need a budget, an estimate of how much money and time you expect to expend on the marketing of your business. Without a budget, you have no plan.

A marketing plan will require you do certain things each day week or month. It is not “I will do a good job on my cases.” It is more “I will take three potential referrers of business out to lunch this month, “ Or “I will write three letters to clients or make three phone calls just to show everyone I am thinking about their well being.” I will give a lecture every month.

BTW a good tidbit on booking speaking opportunities is to call a local lunch or dinner group (such as a church, library, or rotary club) and offer to speak about the case of the moment (i.e. ”Would you like me to speak on how courts in NY would have handled the Terry Shiavo case?”)

* You only get one chance to make a good first impression
Have policies in the office on how to handle clients. Be sure your waiting room is neat and bathrooms are in working order. Be sure they have something to do when they come in and if you must make them wait be sure someone from staff checks up on them every 10 minutes or so. Offer coffee and tea or cold drinks. If they are there with children have some children’s books or coloring books with crayons available.
Be sure to return your calls within a reasonable time ( 24 hours or less.)
What about your office? Does your office look like a sty or is it up to there in files. It might scare clients. They may think you are too busy to handle their case or that their "little" matter is too small for a lawyer as busy as you. Clean off the desk and get rid of the coffee cups. Only keep the file on which you are working on your desktop. I might add that I like to keep pictures of my family around. Some lawyers are uncomfortable with that. Ok but whatever you do keep the pictures of your boat, Porsche or other hobbies and toys away. I think it gives clients a reason to question whether you would rather be somewhere else as opposed to listening to them.

*Business cards: it is worth the money to get good ones on the best paper. They are your only reminder after you have left someone with one. Stock matters get a good stock and a big stack of them. Get a lot of them and give them all out… and then get some more and do it again. Give them out at parties, lectures baseball and soccer games, and of course to clients. Changing the practice time of the T-ball game? Write the new time on the back of your card. Need directions? Do the same thing.

Party behaviors: At a party people there meet you and want to know what you do, are you prepared with an action statement that succinctly defines your practice?

Callaway suggests beginning the answer to the inquiry by always saying “I help…” As in “I help people who are accused of a crime by the government” or “ I help People who are whistleblowers protect the government from fraud. Another favorite, “ I help people who are burdened with legal problems find a way to deal with those problems and still have a life afterward.”


Do NOT OVERPROMISE and Keep your promises… If you cannot fulfill a promise then call the client up and admit the fact ASAP.

*Develop repetitive tasks and develop a system you can market. Develop fixed fees for repetitive tasks so that you can offer your client some idea of a budget. Even if you take a small loss on the project, certain types of matters just do not have to be billed hourly. You can even bill the case out based on the case’s stages. ( i.e. “$XXX.xx -to draft a summons and complaint in the matter.”)

Make powerful form letters. This is a neat piece of advice. You put the new information in bold at the top of the letter (Your deposition will be held in the office of the defendant’s counsel on Tuesday May 24, 2005 at 9:30 am.) Thereafter let the rest of letter reinforce the information you already gave the client as to dress demeanor who and when to speak, when not to; what they should do if an objection occurs or they just forget things. Chock filled with stuff they already know you make them less tense you communicated and reminded them of your advice all in one form letter.

*Client closing letter
At the end of a matter send a letter to the client (copy to file) where you review the case and any options the client may have and then write “I think we are done now how about you” In the letter you can then remind them of everything else you all do. You can also send them an anonymous survey that asks them to rate and discuss their feelings about you. This can be a dangerous thing to do especially if it was a rocky relationship but if you want to know what they are thinking it is a good way to find out the truth. Just remember… sometimes the truth hurts.

Yes they should acknowledge changes in the firm and it is not too braggadocio to mention a good result, or another law related accomplishment. However, they can also be informational and friendly, and even include fun things to do or fun facts about the law government even a recipe or two. Remember they are there to build a relationships with your client’s not bore them to death.

The marketing vaults oldie but goodie has received a face-lift. Now it is not just about your firm and how long you’ve been around, but you should put out brochures of interest or on interesting topics such as “10 Things You Need to Know About Divorce”, or “The 5 Things You Should Know About Real Estate Binders BEFORE You Sign One” or “What Happens if I Am Arrested For DWI.”

*Web pages
These babies ought to have information at a minimum of : who you and your firm are; your contact information; a map to the office. That is really just a minimum. I invite any of you to view my website at it was put together by the geniuses at and it is not as expensive as you would think. In fact it makes me a lot more money than I spend on it and in delegating the work to Findlaw I saved thousands of dollars in billable time. The process of putting together a really good site as opposed to an average site is not that great if you are working with developers who understand law and lawyers. Findlaw provided the content after a long interview with my staff and I. They also taught us about branding, SEM, and all kind of other things that do not belong in this particular article.

Like anything else that goes out over your name it your web presence must be flawlessly written. Have content that is practice specific (again referencing our site, Findlaw provided {at a cost}, practice centers for the work we most want to attract and they also put out a monthly e-newsletter for our site).

Put original content (articles) on the site to enhance your credibility… especially if it has been published elsewhere. (Again you are edified by some one other than yourself. That type of stuff goes far with a prospective client.) I use this blog as well as our sister blog That Lawyer Dude ( as my original work but I will be adding some new stuff too.
You should keep the language simple clear and serious.
Do not forget to comply with your state of admission’s rules of professional conduct. Add a disclaimer written in simple English (i.e. you are not my client just be cause you read my site or send me email or think about me. You are only my client after we have signed a retainer AND YOU HAVE PAID ME.)
Jim suggests your site have clear navigation elements. In other words make it user friendly.
I suggest it also have action buttons where the client can click onto an icon or word and send a contact form to your email ( which you should check at least three times a day if not more.)

Finally Jim suggests that you BLOG. I agree! Find something that interests you and set up a blog. It is cheap, and easy to do. Just keep it fresh and you will soon see how clients know enough about you to stop the shopping and come to you to sign a retainer and get started on their cases. Just be ready when they start to show up.

Thursday, May 19, 2005

eThe Positive Review

The Positive Review

Hey we have a new sister!! Check her out and let us know what you think. Leave us a message or write to us at home at Hope you enjoy her and can use the information in this new venture.

Saturday, May 14, 2005

A Little Off Topic: A great new Italian restaurant and advice from a PD

Just saw the above note and I am in a frivolous mood. SO enjoy. Whether you are a Public Defender or always paid, Tell me you never wanted to say most of this at least once in your career (this assumes you are in practice at least 3 months.)

Ok On to a new place to eat. CIPOLLINI's in the Americana shopping center in Manhasset (and Cippollini's Presto which is an Italian style Cafe). We just had a great meal there. This is saying a lot as I am an American of Italian decent and have grown up around Italian food my whole life.

On arrival you see a great big Yellow umbrella awning drawing you into this Italian Bistro. The weather was good so the bar opened onto the sidewalk like a Italian towns Piazza. The only thing missing was a fountain. The bar is made of beautiful wood and two big Televisions show subtitled Italian Movies for your viewing and waiting pleasure. (If you do not have reservations you will appreciate this as you will wait a while without them, this place is POPULAR!)

Our meal began with a wonderful antipasto (a big plate of Italian meats and cheese) and a wonderfully flavorful (and thick) Tuscan Tomato Soup with a drizzle of virgin olive oil and a piece of Italian bread toast lazily floating on top. We then split the ravioli filled with Duck ragu. The ravioli was served al dente and I would have added Romano cheese to mine but everyone else at the table thinks I use too much cheese. Dinner was a wonderfully tender not overly flavored and perfectly breaded Veal Picatta (for my oldest son) and a chicken pannini with fresh mozzarella and a lush thick roasted red pepper in a oven baked pannini (my younger son's choice) I had a Juicy, thick veal chop. We shared a plate of Polenta which was The Best I have ever had!! (I'd apologize to my Mom but she always said she hated making polenta.) The polenta had the consistency of oatmeal (no it is not usually served fried, that makes it unhealthy) and was creamy and cheese filled. It had just the right amount of seasoning ( and I didn't even want to add grated cheese!) We all shared a very dry bottle of the house Chianti. (I would urge the addition of a Barolo).

Dolce (dessert) was three Chocolate cakes which were served warm and with vanilla Ice Cream. The center was kinda creamy and warm and had the taste of a really chocolate brownie. The cake was in a kinda pie crust. My sons loved it. I liked it too. I wasn't as happy with the pannacotta which needed a bit of flavoring ( I would add a little Vanilla.) The Cappuchino was excellent but the filtered (American) Coffee was a little weak. The whole meal cost less than One hundred Fifty dollars plus tip.

The restraint has been open for about three weeks, and is standing room only on a Saturday night at 5:30pm. They are still working out the occasional kink but it is already the IT place to be on the Miracle Mile. I highly recommended visit before it gets too hard to get a reservation!

Monday, May 09, 2005

FindLaw's Writ - Grossman: A New York High Court Decision on Domestic Violence

FindLaw's Writ - Grossman: A New York High Court Decision on Domestic Violence

Now that the Court of Appeals has brought NY into the Twenty first Century in its landmark decision Nicholson v. Scoppetta, 3 N.Y.3d 357, 787 N.Y.S.2d 196, (2004 ), We are beginning to see the effect in recent case law decisions interpreting the decision. So far things are looking good. In Nicholson, the court in answering a number of certified questions posed by the US Court of Appeals 2d circuit decided that the fact that a child was exposed to inter parental domestic violence did not any longer lead to the conclusion that the child was neglected by the victim parent without serious further findings of neglect.

That decision has stopped the Draconian practice of tearing children away from (usually) their mothers after the women has already been beaten by the father and even after she has taken steps to quell the abuse and the potential neglect where there is no further proof of neglect on the part of that victim/parent. The case appears to be the right decision in most cases. No longer are trial counsel in the Hobsian position of having to tell a victimized spouse that if she sought to report of otherwise tell of her abuse she risked her custody of her children. No one has to be frightened to expose domestic violence for fear of losing their custody.

However the decision does have important ramifications beyond the apparent humanitarian ones. Given the standard of the best interest of the child, how does a judge now decide in these cases whether to remove a child or let the abused parent remain in custody of a child she may not be able to protect. (See, In re Eryck N., 791 N.Y.S.2d 857, 858+, 2005 N.Y. Slip Op.02704 (3 Dept 2005) (NO. 94788).

Obviously the court is now going to need forensics in this type of case and cannot any longer rely on the presumption that where there is Domestic Violence (DV) there is per se neglect. The issue is then one of how far can these forensic psychologists go in their testimony. Of course the petitioner (usually CPS or Social Services) is going to put heavy stock into the testimony of the shrink. This however should fall short of a final decision of what is in the best interest of the child. Counsel defending the witness must be sure the court reserves to itself the final issue of best interest. ( See PANEL CLARIFIES NEW STANDARD FOR NEGLECT UNDER 'NICHOLSON', 4/12/2005 N.Y. L.J. 1, col. 3, 1, col. 3 {2005}) Further it is now a defense that if the child had no further harm to his body or psyche from witnessing the conduct that that would remit against removal. In cases where the danger was "imminent" the requirements are more stringent than where the contact was viewed directly by the child(ren).

Obviously that is going to require counsel to retain his own forensic or to encourage the mother who has not yet lost her child to get the child to a Psychologist of her (or her Lawyers) choosing. There is an excellent treatment at "LAW AND CHILDREN: "Nicholson': Defining 'Neglected Child,' Taking Child From Parents, 3/14/2005 N.Y. L.J. 3, col. 1, 3, col. 1 (2005) .

For now that's all folks . Want to reach me? Leave a comment here or write me at

Sunday, January 09, 2005

Our President is a Liar

On January 5th 2004, President George Bush accused the American Legal Community of abusing the legal system by filing “baseless claims against doctors and hospitals” because the “American legal justice system is slanted against them”.
The President is a liar.
This is not a statement I make easily, nevertheless, it is true.
Fact: Any lawyer taking on a medical malpractice lawsuit is willing to invest literally tens of thousands of dollars of his own money and more in time to obtain fair and just compensation for his severely injured client. He also wants to punish the hospital or doctor for failing to give proper care. This will teach these professionals to be more careful.
Fact: Virtually every medical malpractice case is legitimate and brought on behalf of clients who have sustains serious injuries. These victims are friends, neighbors, parents and siblings. They went to a doctor expecting that doctor to show reasonable care. They counted on the hospital to exhibit a reasonable degree of medical competence. They did not seek perfection; they were entitled to be treated professionally, without negligence.
Fact: Juries that grant verdicts are comprised of fellow neighbors who have heard the evidence, and found against the doctors and hospitals involved; same as in any other trial. Competent Judges oversee these verdicts. Groups of appellate Judges in turn, check them. Any of these courts can overturn or reduce unreasonable verdicts. If the verdicts are not correct, surely someone will almost always catch it.
Fact: Medical defendants are always represented by the best lawyers money can buy. Unlike a criminal defendant, medical defendants have the funding to get the best experts too. When a case is settled, it is because these outstanding trial lawyers know they cannot win. If they lose the case at trial, then their clients were negligent. They used improper care. They hurt others. They could kill someone with their ineptitude the next time. People who have been injured or killed by a medical practitioner’s malpractice are not entitled, nor will they obtain, justice in the criminal justice system. The only way to control wrongdoing by medical practioners is to bring a tort lawsuit.
Fact: If the Government puts artificial caps on recoveries in lawsuits, then hospitals, doctors and insurance companies (who are in fact the “big winners” here) will factor litigation losses into their price and ignore safety. It happens in every industry, medicine is no exception.
Fact: Medical malpractice damage caps are dangerous and foolish. They will lead to bad medicine, more injury and needless death.
Fact: Fear of a successful lawsuit is what forces hospitals and doctors to not cut corners, to do thorough jobs, and to keep us healthy and safe, even in the face of healthcare insurance executives who would deny that care in order to increase their profits.
Fact: The enemy of good health in America is not the trial lawyer, the enemy of good healthcare is greedy insurance executives and bad politicians who would rather use rhetoric than fact when confronted by truth.
Fact: This administration has sadly made a habit out of wrapping its arms around victims for a good publicity photo only to stab them in the back and turn the knife after the photo opportunity is over. American Trial Lawyers speak on behalf of individuals for the good of all citizens. They risk their own money on behalf of injured patients and have no funds with which to fight back.
I am a registered Conservative and I believe strongly in my Government. I am also not a medical malpractice trial attorney. I have no ax to grind. I write only because I am outraged that my President is running around America attempting to get support for a medical malpractice damages cap by spreading false information. Americans should not be fooled. I have not had to say these words about a Republican President since 1974 and it pains me to say them again: Our President is a liar.
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