Sui Generis--a New York law blog

What's More Fun Than Beef Jerky?

Schirmer v Board of Educ. of Spencerport Cent. School Dist., 2006 NY Slip Op 08574, a recent Fourth Department case, brought back a flood of unwelcome memories of torturous hours spent in study halls in high school, while at the same time inexplicably reminding me of the innumerous hours that I spent as a teenager laughing until my sides hurt while listening to the Jerky Boys (my all-time favorite line being "Right. And I'll bring all my shoes and my glasses with me so I have them.")

Oh, those were the days.  But, I digress.

You're probably wondering why this case sent me on a long, strange trip down memory lane.  Well, wonder no more, my good readers.  Sit right down and I'll tell you a tale about an infant plaintiff that sustained an eye injury during an unsupervised study hall when he was hit by a wayward piece of beef jerky that was being thrown back and forth between the infant defendants.  One of the infant defendants, Mannix, was supposed to be in the study hall, while the other was not.

And, why, you might ask, were they flinging beef jerky across the room?    As explained by the Court in my favorite line from the opinion:  "It is undisputed that the two students were throwing the beef jerky for fun..."  Yep, that's right, for fun.  I mean, what could possibly be more fun than beef jerky?  These kids sure know how to partaaaay.  Life of the party, I tell you.

Perhaps you're curious about the legal issues and the Court's holding in this case.  Ask and ye shall receive:

We conclude that the activity engaged in by the two students was not "so inherently dangerous that mere participation therein [was] negligence" ...Thus, Supreme Court properly granted the motion of Mannix seeking summary judgment dismissing the amended complaint against him.

The evidence submitted by defendant in support of its motion established that there were at times 50 or more students attending the honors study hall; the study hall was not supervised by an adult; the study hall was only periodically monitored by an adult to determine whether there were students present who did not have the requisite "honors" pass; defendant had notice of three prior incidents wherein objects were thrown by students attending the study hall without the requisite "honors" pass; and defendant had notice of one prior incident wherein a student was injured by another student while attending the unsupervised study hall. That evidence raises triable issues of fact whether defendant adequately supervised the students attending the study hall and whether the injuries sustained by plaintiff's son were a foreseeable result of the "absence of adequate supervision"...

Civil Rights Round Up

A civil rights roundup is long overdue and a lot has happened over the last few weeks.  So, let's get started:

• Judge strikes down Bush on terror groups:  A District Court Judge in Los Angeles ruled that President Bush's post 9/11 executive order which designated 27 specific groups and individuals as "specially designated global terrorists" was unconstitutional and vague since it gave the president unfettered discretion to label groups without providing them with a way to challenge the designations.   I smell an appeal.
• Supreme Court Refuses to Block Access to NYT Reporters' Phone Records:  As reported here, on Monday the Supreme Court issued an Order in which it refused to grant a temporary stay in a case where federal investigators sought access to the phone records of two New York Times reporters.  First Amendment rights have once again been trumped by the interests of law enforcement.
• Inspector General Will Investigate Domestic Spying Program:  The investigation will focus on how the Justice Department uses information obtained from the wiretaps, but won't address the issue of whether the wiretapping itself is unconstitutional.  Bummer.
• Muslim Imams Booted Off Plane for Praying:  The community is outraged at the treatment of 6 Imams who were removed from a flight due to conducting daily prayers in the gate area and allegedly "making anti-American statements involving the Iraq war, ask(ing) to change seats once inside the cabin...request(ing) an extender to make his seat belt larger even though he did not appear to need it and that in general 'there was some peculiar behavior.'"  So, they prayed, expressed opinions consistent with the majority of Americans about the Iraq war, and requested a larger seatbelt.  Very threatening stuff indeed.  Sounds to me like their "peculiar behavior" was actually flying while Muslim.  We can't have that now, can we?
• Senate Democrats Plan Overhaul of Military Commissions Act In Order to Restore Habeas:  As reported here, the bill, among other things,  "seeks to give habeas corpus protections to military detainees; bar information that was gained through coercion from being used in trials and empower military judges to exclude hearsay evidence they deem to be unreliable."  Sanity, at long last.

Comedic Break

If you haven't already discovered Overheard in New York, then today's your lucky day.  It's an hysterical blog that consists of snippets of conversations overheard by New Yorkers.  I read it on daily basis--it's always good for a laugh.

Yesterday, a conversation between two law students was featured which consisted of a female law student honing her cross-examination techniques on a rather unsuspecting male law student with a big mouth and, well--apparently not much else.  She's definitely got a future in litigation, dontcha think?

Wednesday's NY Legal News Round Up

It's Wednesday, and time for the New York legal news round up.  Here are some headlines from interesting news stories over the past week:

• Experts say Mayor Bloomberg spoke to soon in calling NYPD shooting 'excessive force'
• Church groups to try again on contraceptives coverage mandate
• Rare Death Penalty Trial Begins in New York
• High Court Rules Against New York Times
• Judge says no grounds for racial discrimination lawsuit against school district
• Biggest manhunt in New York history ends with guilty plea

Balance and the Law

After much thought, I've decided to add a new feature to Sui Generis and will be posting approximately once per week regarding the issue of balance.   I'll preface the title of each post with the word "Balance" so that those of you with no interest in this particular issue can skip over those posts.  And, I'll be adding a section to my sidebar that includes links to blogs and other resources on the issue of balance.

I've decided to focus on this issue since it's been on the forefront of my mind since 2003 when I left the law firm where I worked as an associate.  I'd been there for nearly four years, following my stint at the Public Defender's Office, even though  I'd never envisioned myself in a law firm.  And yet there I was--and if I was going to work in a law firm for my entire life, that firm was the one for me.  It was full of great lawyers, and more importantly, good people.   

But, it wasn't the right fit for me.  I wasn't happy.  I felt trapped, claustrophobic.  I couldn't put my finger on it, although I knew that work/life balance had something to do with it--but that wasn't the sole problem. 

I had one child at that time and planned to have at least one more.   Although I could litigate and procreate, I had the sneaking suspicion that something had to give--either the quality of my work or my marriage and family.  And, assuming that I even had a choice,I wasn't willing to choose between one or the other.

But that wasn't the only issue.  I also felt as if my creative side was dying a slow death, almost as if a part of my brain was shutting down.  The law was suffocating me.  I'd entered law school with a strong Type A personality to begin with and Lady Law warped it into something nearly unrecognizable and unbearable.  I didn't like who I'd become.  I wanted out.

So, my husband, a nurse, who had been the primary caregiver for our daughter, stepped up to the plate and I took a time out on the bench and tried to figure out where I wanted to go with my professional life.  Eventually I determined that it wasn't the practice of law that I had issues with--it was the way that I was practicing it. 

I realized that I needed to return to law on my own terms.  I missed the law and the lawyers that I'd come to know over the years.  I missed logical thinking and legal writing.  I missed a part of me that I'd essentially abandoned in 2003.   So, just about one year ago, I opened up shop as a contract attorney and started this blog.   And, I began to think about the legal field and work/life balance.  A lot.   

I realized that the law can be all encompassing.  It's always been that way, hence the saying "the law is a jealous mistress."  And attempting to balance one's chosen career with other non-legal obligations such as the demands of family life can be a delicate and difficult balancing act for both male and female lawyers.  The legal field, especially the private sector, has been far slower to respond in any meaningful way to the requests of lawyers for accommodation and flexibility than other fields such as accounting and medicine.  And as a result there has been a growing dissension amongst the ranks of lawyers--especially younger lawyers.  Many are simply leaving  law firms in search of greener pastures.  That's a lot of lost talent.

As I stated in this post a few months ago:

As I see it, it's not a feminist issue.  It's a societal issue.  Professional couples are taking a hard look at their lives and, by virtue of their advanced educational levels, are in a position to make choices that will allow them to improve the quality of their family's life.  In other words, women and men with advanced degrees have more choices available to them as a result of their education and work experience.

Legal employers are slowly but surely beginning to notice the effects of their refusal to bend to the demands of a new generation of lawyers.  And they're finally beginning to try to appear as if they're making attempts to change as is evidenced by this press release from the legal giant Weil, Gotshal & Manges, LLP.  The JD Bliss blog had this to say about the news:

(E)ven the hardest working, white shoe firms are starting to come around to the need to boost retention rates by offering flexible working arrangements. In this vein, Weil Gotshal announced last week that it named 20 new partners - two of whom are "Flex-Time Partners," a new partnership category formed for new partners making a long-term career choice to work on a flexible schedule. The "Flex-Time Partner" title is available to both women and men entering the partnership.

At first glance, this press release may not seem like much.  But, it's the first step, albeit a small one.  I predict that eventually legal employers will have to change, since the market will demand it and they'll have no future if they don't.   So, the moral of today's little balance tidbit is:  You can't run a law office without a bunch of entry level lawyers doing all the grunt work now, can you?

Maybe, just maybe, legal employers are figuring that one out on their own.

Define That Term #167

Friday's term was corpus juris, which is defined as:

n. the body of the law, meaning a compendium of all laws, cases and the varied interpretations of them. There are several encyclopedias of the law which fit this definition, the most famous of which is Corpus Juris Secundum. Several states have such series of books covering explanations of the law of that state.

Once again, Carlos got it right!

Today's term is:

incorporeal.

As always, no dictionaries allowed--just educated guesses.

New York State Unified Court System Style Manual Available Online

The New York Official Reports Style Manual, always a useful reference, is available online should you ever find that you need it and can't locate the hard copy.  It can be found here.

The Style Manual is intended for use by those drafting judicial opinions, but can certainly be helpful to anyone drafting a legal document.  As explained in the Style Manual:

This Manual supplements general citation and style authorities, providing more detail on New York materials and a more specific focus on judicial opinions. General authorities should be consulted on matters not covered by this Manual. These authorities include:

• The Bluebook: A Uniform System of Citation (Colum L Rev Assn et al. eds, 17th ed 2000)
• Association of Legal Writing Directors & Darby Dickerson, ALWD Citation Manual (Aspen L & Bus 2000)
• The Chicago Manual of Style (14th ed 1993)
• Webster's Third New International Dictionary (1993)
• Lebovits, Advanced Judicial Opinion Writing (7th ed)
• Wydick, Plain English for Lawyers (4th ed)

Also available online is the is the Cornell Legal Information Institute's Introduction to Basic Legal Citation, written by Peter Martin, which discusses the differences between the Bluebook and ALWD citation styles.

So many helpful legal resources available online for free.  Will wonders never cease?

NY Court of Appeals Considers Standard to Be Applied Under Employee Choice Doctrine

In Morris v Schroder Capital Mgt. Intl. & Schroder Inv. Mgt. N. Am. Inc., 2006 NY Slip Op 08638, the New York Court of Appeals considered the following certified questions from the United States Court of Appeals for the Second Circuit:

(1) Is the factual determination of 'involuntary termination' (i.e., whether an employee quit or was fired) under the New York common law employee choice doctrine governed by the 'constructive discharge' test from federal employment discrimination law?    

(2) If not, what test should courts apply?

In Morris, the plaintiff sued and alleged that his former employer had forced his resignation by reducing his job responsibilities and sought recovery of compensation benefits that he alleged were due to him.  The defendant alleged that the plaintiff had forfeited his compensation benefits since he had violated a non-compete clause in his employment contract and further alleged that the plaintiff's claims were barred by New York's "employee choice" doctrine, which is an exception to New York's general disfavor of non-compete clauses in employment contracts, and applies when an employer conditions receipt of post-employment benefits upon compliance with a restrictive covenant. 

As the Court explained in its decision:

The (employee choice) doctrine rests on the premise that if the employee is given the choice of preserving his rights under his contract by refraining from competition or risking forfeiture of such rights by exercising his right to compete, there is no unreasonable restraint upon an employee's liberty to earn a living...An essential element to the doctrine is the employer's "continued willingness to employ" the employee...In some circumstances, an employee's decision to resign from his job may not be a free and voluntary choice. Federal courts created the constructive discharge test in the context of employment discrimination cases for determining whether the employee's resignation was "voluntary"... In order to meet this threshold, "the trier of fact must be satisfied that the ... working conditions [were] so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign"...(Internal citations omitted).

The Court then concluded that the constructive discharge test applies in the context of the employee choice doctrine since "(t)he sense and purpose of the "employee choice" doctrine is that an employee is given a choice in either preserving his rights under an employment contract by not competing or losing them by engaging in competition...(A)n employer should not be permitted to enforce an unreasonable non-compete clause and simultaneously deny the employee his benefit under the guise of the employee choice doctrine."

In so holding, the Court rejected the plaintiff's argument that the appropriate standard was whether the employer was willing to employ the worker in a same or comparable job.

Not exactly great news for employees in our fine state.  This is a holding that employees may well want to consider prior to giving notice to their employers.  From now on, if your contract provides for post-employment benefits contingent upon compliance with a covenant not to compete, make sure that your working conditions are downright unbearable prior to telling your boss to "take this job and shove it".

The Monday NY Blawg Round Up

It's Monday already, and time for the weekly New York legal blog round up.  Here are some interesting posts from my fellow New York blawgers over the past week:

Indignant Indigent:

• AD4: a rare Batson reversal
• CA: legal sufficiency arguments not preserved unless TOD renewed at close of all proof
• AD4: cop giving witness positive post-identification feedback after photo array is a viable Wade issue

It's No-Fault of NY:

• Yeah, well, you know, that's just, like, your opinion, man.

New York Civil Law:

• New York Court of Appeals Decides Conflicts of Law Question -- Pay-If-Paid/Pay-When-Paid Provisions
• New York Court of Appeals Determines Application of Equitable Estoppel in Medical Malpractice Context

New York Small Business Law:

• Foreign LLC doing business in New York must publish in New York - and other Lessons

Second Opinions:

• Collateral Estoppel.
• When is filing?

There's Something in the Water in Texas

Texas, the new legal frontier.  It's the land of wacky depositions and caustic judges, like Judge Samuel B. Kent.  You may recall a prior decision of Judge Kent's that I'd highlighted last month wherein he lambasted the lawyers before him and accused them of submitting their appeals on gravy-stained placemats.

The tenor of that decision apparently wasn't all that unusual for Judge Kent.  In a 1996 case, Stephanie Smith V. Colonial Penn Insurance Company, 943 F. Supp. 782, the honorable Judge Kent didn't hold back when denying Defendant's Motion to Transfer Venue due to the inconvenience posed by the fact that Galveston lacked a commercial airport. 

Here is some choice language from the Court's decision, including a rather entertaining footnote:

Defendant contends that it will be faced with the huge "inconvenience" of flying into Houston and driving less than forty miles to the Galveston courthouse, an act that will "encumber" it with "unnecessary driving time and expenses." The Court certainly does not wish to encumber any litigant with such an onerous burden. The Court, being somewhat familiar with the Northeast, notes that perceptions about travel are different in that part of the country than they are in Texas. A litigant in that part of the country could cross several states in a few hours and might be shocked at having to travel fifty miles to try a case, but in this vast state of Texas, such a travel distance would not be viewed with any surprise or consternation...Defendant should be assured that it is not embarking on a three-week-long trip via covered wagons when it travels to Galveston. Rather, Defendant will be pleased to discover that the highway is paved and lighted all the way to Galveston, and thanks to the efforts of this Court's predecessor, Judge Roy   Bean, the trip should be free of rustlers, hooligans, or vicious varmints of unsavory kind. Moreover, the speed limit was recently increased to seventy miles per hour on most of the road leading to Galveston, so Defendant should be able to hurtle to justice at lightning speed. To assuage Defendant's worries about the inconvenience of the drive, the Court notes that Houston's Hobby Airport is located about equal drivetime from downtown Houston and the Galveston courthouse. Defendant will likely find it an easy, traffic-free ride to Galveston as compared to a congested, construction-riddled drive to downtown Houston. The Court notes that any inconvenience suffered in having to drive to Galveston may likely be offset by the peacefulness of the ride and the scenic beauty of the sunny isle...

Footnote 2:  Defendant will again be pleased to know that regular limousine service is available from Hobby Airport, even to the steps of this humble courthouse, which has got lights, indoor plummin', 'lectric doors, and all sorts of new stuff, almost like them big courthouses back East.