WWBA May 2017 Newsletter

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WWBA’S FOURTH GENERAL MEMBERSHIP MEETING
A Conversation with the Federal Judges in White Plains
Kim Berg
Members of the WWBA and the Federal
Bar Association were privileged to attend
“A Conversation with the Federal
Judges in White Plain”" on April 4, 2017 at
the lovely LaBocca restaurant in White
Plains. This was the WWBA’s fourth and
final General Membership Meeting this year.
The Honorable Nelson S. Roman,
United States District Judge, and Honorable
Lisa M. Smith, United States Magistrate
Judge, candidly answered questions
posed by moderator Donna Frosco. The
topics covered procedural and substantive
content for all facets of federal court litigation,
from pleadings to discovery and
through trial. Topics included:
❑ attorney preparedness and the importance
of having a good, working knowledge
about matters on which they appear
in court;
❑ resolution of discovery disputes and the
Court’s rules governing expeditious resolution
of disputes by the Magistrate Judges;
❑ motion practice, including effective strategies
for making or defending motions, pit-
Hon. Lisa Margaret Smith, Hon. Nelson S.
Roman, Donna Frosco
falls to avoid when writing memoranda of
law, and the importance of citations, both
to the record for support of any factual assertions
and to statutes and case law for
legal arguments;
❑ the critical importance of laying a proper
foundation for the admission of evidence
at a trial and how failure to do so could
result in the exclusion of evidence; and
❑ strategies used in mediating/settling
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claims.
The practical tips provided from the
esteemed panel of Judges provided practitioners
with excellent guidance on how to
approach all phases of litigation and
stressed the importance of narrowing the
issues before the court.
Judge Roman and Judge Smith also
both aptly focused on maintaining a high
standard of professionalism in what is usually
an adversarial setting – not only when
appearing before the Court but also toward
colleagues, clients, and courthouse staff.
In sum, maintaining one’s credibility, not
only in presenting an accurate version of
the “facts” and the “law” with supporting
cites to the record and case law, but also
pointing out that the manner in which you
interact with judges, their staff, attorneys,
and litigants can also impact your credibility.
Those WWBA members in attendance
also voted to accept the amended by laws
and the slate of officers and directors for
WBASNY and the Westchester Chapter for
2017-2018 (see page 10). ◗
Matrimonial Committee Presents CLE on Counsel Fees
Dolores Gebhardt
My much-anticipated CLE program,
“Whatever Happened to Prichep: Counsel
Fees in Matrimonial Actions and in
Family Court” was held on March 22,
2017 at Sterling National Bank in Tuckahoe.
I was very grateful to have as my
fellow panelists Hon. Linda Christopher,
J.S.C., Supervising Judge of the Matrimonial
Part, and Hon. Sherri Eisenpress,
J.F.C., Acting Supreme Court Justice in
Rockland County.
The name Prichep refers to a landmark
2008 Appellate Division, Second
Department decision on interim counsel
fees written by former Presiding Judge A.
Gail Prudenti. The decision made it considerably
easier for the less-monied spouse
to get an award of interim counsel fees
from the monied spouse in a timely manner.
Two years later, in 2010, Domestic
Relations Law § 237, which provides for
counsel fee awards, was revised to reflect
the holding in Prichep – allegedly! One
of the goals of this lecture was to demonstrate
via an analysis of the language of
the statute that the 2010 amendments to
DRL § 237 are actually not a codification
of Prichep.
A second goal was to show how
Prichep and the 2010 amendments solved
a significant problem for practitioners –
interim fee awards are now largely made
right away, rather than deferred to trial.
However, neither the case nor the revised
statute help matrimonial attorneys with our
other problem: the fees awarded are usually
less – sometimes far less – than the
amount requested. My third goal was to
show how both Prichep and the 2010
amendments have been eroded by several
recent decisions.
Also featured were: the different
analysis the Courts use for determining
requests for final counsel fees; methods
of getting paid from one’s own client;
and how to get counsel fees in enforcement
cases, modification cases, Family
Court cases, and on appeal. I explained
the difference between seeking a counsel
fee award pursuant to DRL § 237 and
pursuant to 22 NYCRR § 130-1.1 (the
“sanctions” rule).
Justices Christopher and Eisenpress
explained what they are looking for in a
fee application, as well as their rationale
for determining the amount to award.
The Justices and I led a spirited discussion
with the audience, which consisted
of many of the field’s prominent
practitioners, as well as matrimonial
judges and law secretaries. It was a great
evening, and we all learned useful information.
I extend my grateful thanks to the
Justices, to our host, Sterling National
Bank, and to our sponsor, Family Law
Software. ◗
Westchester Women’s Bar Association News
Page 5