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 Amendment.com is a story about a guy who was arrested for possessing laundry detergent. Scroll down a bit to find it.

Law.com 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 www.colleluorilaw.com.

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 www.Colleluorilaw.com.

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 www.colleluorilaw.com

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 www.colleluorilaw.com it was put together by the geniuses at www.Findlaw.com 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 (www.thatlawyerdude.blogspot.com) 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 www.Colleluorilaw.com. 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 www.colleluorilaw.com.