By Jim Maisano
This link from one of my favorite legal blogs, The Volokh Conspiracy, bothers me:
This “court attorney referee” would probably benefit from an immediate CLE course on the rules of evidence, while concentrating on relevance and materiality. Of course, the mother shouldn’t have been forced to testify about attending concerts long ago and other extraneous events. If I was her attorney, I would have caused a scene with my objections.
What really troubles me is that lawyers may be used to the courtroom, but our clients are never comfortable there. I have represented important business people, as well as witnesses that had never set foot in a courtroom, and trust me, they were all nervous about testifying. While I expect opposing counsel to ask my client tough and complicated questions, I also expect the judge (or referee) to do his or her job well and make sure that justice, fairness and the rule of law are always enforced. That clearly did not happen in the Queens County Family Court on the days this mother testified, and that is just not acceptable. I ran for Supreme Court Justice a few years ago (lost a close one) with the intention to treat everyone in my courtroom with respect, fairness and professionalism, while also being tough in enforcing the law. Our court system must work diligently to ensure that litigants believe in a positive way that they had their “day in court.” I certainly would have protected this witness from such objectionable questions. Thankfully, the appellate court granted this mother some justice.
By Jim Maisano
I had to read the following article twice, which ran in The New York Times on September 15, 2012, because it was so troubling:
In a nutshell, debt collection attorneys are sending out letters – utilizing a prosecutor’s letterhead – to people who have written bad checks. These letters threaten the consumers with jail time if they do not pay the amount of the bounced check, plus other large fees. Here is a link to an example of this kind of collection letter:
This is an abusive process. It is certainly possible the shopper lacked any intent to pass a bad check and merely made a mistake. Could you imagine writing a check that bounced by accident and a few weeks later receiving a letter that appears to be from a prosecutor telling you to pay up or face jail time? It is most disturbing the article reports that one consumer’s “bad check was sent directly from the merchant to the debt-collection company, without any prosecutor determining whether she had actually committed a crime.” Normally, before being charged with a crime, a person’s actions are fully reviewed by the police and/or prosecutors to ensure the alleged behavior rises to the level of crime. I realize the recipient of the letter has not been formally charged with a crime here, but the letter is misleading and certainly causes confusion, and I am sure many of the recipients believe they are being charged with a crime.
This is a deceitful scam by debt collection lawyers. They seek to scare the heck out of people, and then turn a quick profit, and unfortunately, it is probably successful as consumers are paying quickly to avoid the threat of jail. Moreover, it is my understanding that it is not a high priority for law enforcement to target check bouncers, so it is doubtful whether many of these actions would ever be prosecuted. And who sets the fees that must be paid beyond the amount of the check…the collection attorneys? Is that fair and just? Where is the due process or governmental oversight? How could the State of California actually sanction such abusive treatment of consumers? Isn’t it unethical for attorneys to engage in misleading communications with the public? Shouldn’t the state bar associations be cracking down on these abuses.
The article did not mention whether these troubling debt collection letters have been mailed to New Yorkers, although I want to believe that the New York State Bar would proscribe such unethical actions under the New York Rules for Professional Conduct. If anyone becomes aware of such letters arriving here in New York, please contact me as I would like to see if I can be helpful to the affected consumer.James Maisano, Esq. Jim@JamesMaisanoEsq.com http://www.JamesMaisanoEsq.com (914) 636-1621
By Jim Maisano
I was asked by a blog reader to mention New York State’s Anti-Bullying laws. Two important laws went into effect this past summer with the goal of reducing bullying in our schools. I think we can all remember how badly some of our classmates were treated back in high school, and as I look back on those days as an adult and father, it is troubling to remember the abuse some kids had to deal with. I dealt with it from both sides of the vicious cycle many kids experience – at some points I was bullied, and at other points I behaved badly towards classmates. Let’s take a brief look at New York State’s efforts to address these issues.
1) Dignity for All Students Act (“DASA”), passed in 2010, but effective July 1, 2012 (the following from Child Abuse Prevention Services website):
The theory behind the law is that all children have the right to attend school in a safe, welcoming and caring environment. DASA amended the NYS Education Law regarding instruction in civility, citizenship, character education, tolerance, respect for others and dignity. It combats bias-based bullying, harassment, and discrimination in public schools, and promotes awareness and sensitivity in the relations of people, including individuals of different races, weights, national origins, ethnicities, religions or religious practices, mental or physical abilities, sexes, sexual orientations, gender identities. DASA does the following:
- Protects all public elementary and secondary school students from discrimination and harassment of students by other students, teachers and school personnel.
- Every school must amend its code of conduct to implement the prohibition of discrimination and harassment in age-appropriate language.
- All school districts must appoint at least one staff member in every school to handle bullying incidents on school property, buildings, buses and school sponsored activities and events (and includes athletic fields, playgrounds and parking lots).
- School administrators must report incidents of bullying to the NYS Department of Education.
2) Anti-Cyberbullying law signed by Governor Cuomo on July 9, 2012 (the following from Governor’s announcement when signing legislation):
- Requires that schools act in cases of cyberbullying, which may occur on or off campus, when it creates or would create a substantial risk to the school environment, substantially interferes with a student’s educational performance or mental, emotional or physical well-being, or causes a student to fear for his or her physical safety.
- Requires school districts to put in place protocols to deal with cyberbullying, harassment, bullying and discrimination, including assignment of a school official to receive and investigate reports; prompt reporting and investigation; responsive actions to prevent recurrence of any verified bullying; coordination with law enforcement when appropriate; development of a bullying prevention strategy; and notice to all school community members of the school’s policies.
- Sets training requirements for current school employees, as well as for new teachers and administrators applying for a certificate or license, on the identification and mitigation of harassment, bullying, cyberbullying and discrimination.
Let’s hope this legislation is successful in reducing bullying in our schools and allows our kids to have a more productive and enjoyable educational experience.
Lastly, I must point out that bullying types of behavior can rise to the level of conduct regulated by the NYS Penal Law, including Harassment in the First Degree (http://law.onecle.com/new-york/penal/PEN0240.25_240.25.html), Harassment in the Second Degree (http://law.onecle.com/new-york/penal/PEN0240.26_240.26.html), and Aggravated Harassment in the Second Degree (http://law.onecle.com/new-york/penal/PEN0240.30_240.30.html).James Maisano, Esq. Jim@JamesMaisanoEsq.com http://www.JamesMaisanoEsq.com (914) 636-1621
By Jim Maisano
Outside of a few vacation days for family trips and events, it was a very busy summer at my law firm, but Labor Day has come and gone, and it is time for a new legal blog post.
Before starting this firm, I worked at two large law firms in Manhattan for about eight years, and while I did have my own clients, I also worked for clients of the firm. Being a solo practitioner is different in that you must not only provide quality and affordable legal services to your clients, you must also attract clients through advertising and promotion of the firm. I have utilized social media, Facebook, Twitter, LinkedIn, Google+ and Tumblr – along with this blog and my website (www.JamesMaisanoEsq.com), as integral parts of promoting the firm, and I am pleased to report it has been successful to the point that the firm is doing well in its second year, which is why it has been so busy.
So what kinds of legal work have clients brought to my firm recently – here is a brief summary:
- Since I began practicing law in 1992, the majority of my practice has involved commercial litigation. This includes helping businesses address contract disputes and collecting money owed by debtors. I am currently working on about ten such civil actions, which have been brought either in lower courts or the Supreme Court of the State of New York, and I have been successful for several clients thus far in recovering funds.
- I was a solo practitioner from 1996 to 2002 and during that time I developed a significant real estate closing practice. The housing market was strong in those years and I represented hundreds of clients for closings. With the struggling economy and lack of home sales, it is much harder for attorneys to attract this work, but I am happy to report that I worked on three closings this summer.
- The fastest growing part of my practice is wills, estates and probate actions in Surrogate’s Court. This summer I helped about fifteen clients by drafting wills or guiding executors through the probate process.
- Lastly, solo practitioners must be resourceful, and I also helped clients this summer with other legal matters such as setting up a LLC or corporation, legal name change, trademark protection, and traffic violations.
Thanks for following my efforts to build this law firm, and I am very thankful for the kind support and nice comments I have received on social media or by email. If I can ever be helpful to you in the types of legal matters discussed above, or for any other legal matter, please do not hesitate to contact me.
PS: I am now associated with an immigration attorney, and am available to help you with these matters too.James Maisano, Esq. Jim@JamesMaisanoEsq.com http://www.JamesMaisanoEsq.com (914) 636-1621
By Jim Maisano
As both an attorney and elected official, people often ask me about the process to get on the ballot to run for public office in New York State. Most people seem to think that a candidate gets endorsed at a political convention, but that is only partly true. While candidates do seek the endorsement of political parties at local or county conventions, that endorsement only means that the district leaders for that political party will support you and help you get on the ballot (which is very important).
However, unless you are running for state-wide office (senator, governor, attorney general or comptroller, who are nominated at state conventions), you must obtain signatures on “designating petitions.” This is the requirement for congress, state legislature, county legislature or local city and town elections (but not villages or supreme court). We are in the final week to collect signatures on designating petitions for New York’s six established parties — Democrat, Republican, Conservative, Working Families, Independence and Green. As a matter of fact, I walked my neighborhood this past Sunday night and collected signatures.
What do I mean by designating petitions? New York State Election Law sets forth the required procedures to collect the signatures on the designating petitions and to get on the ballot — see NYS Election Law Sections 6 – 118, 120, 122, 130, 132, 134, 136, 144 & 146. The Election Law requires candidates to obtain signatures of 5% of the registered voters in the district from the political party whose line they seek. Most candidates try to get about 10% to avoid any legal challenges. Therefore, since the first week of June, volunteers for candidates of all political parties have been ringing door bells and asking voters to sign designating petitions that will get candidates on the ballot, and this Thursday is the deadline to file these petitions with the Board of Elections.
For example, last year I needed about 375 signatures to run for re-election to the Westchester County Board of Legislators on the Republican line, and we were pleased to file more than 700 signatures.
If you are a registered voter in a political party and meet the 5% signature requirement from members of that party, you are on the ballot. If more that one candidate files petitions for a particular seat, they will face-off in a primary in mid-September. For candidates without primaries, they go straight to the November election.
What about seeking the lines of parties for which you are not a member? If you wish to run with a party line besides your own, you must meet the 5% signature requirement, as well as get permission from that party to run on its line.
And if you think your opponent’s designating petitions do not contain enough proper signatures to meet the required number, you can try to knock out those petitions with a legal challenge.
Every candidate across party lines can agree on one thing –- they are incredibly thankful for the great volunteers that have been carrying these designating petitions over the past six weeks. Many dedicated people have worked diligently to get candidates on the ballot for this November — so that voters have a real choice on Election Day. I have been carrying petitions for about twenty years now and am happy to report that most people are friendly in the doorway (but yes, there are a few cretins who are rude or too “busy” to participate in democracy). Thanks so much to all the wonderful volunteers carrying the petitions and to the helpful voters who signed them — you all play an important role in our democratic electoral process. Best of luck to all the candidates this year (especially the ones I am supporting)!James Maisano, Esq. Jim@JamesMaisanoEsq.com http://www.JamesMaisanoEsq.com (914) 636-1621