Deposition Skills 101: A Lawyer’s Behavior Matters

Posted on August 10, 2023 by Blank Rome LLP

New York Law Journal, August 3, 2023 ●

There is a line at the tail end of Francis Ford Coppola’s The Rainmaker that regrettably carries meaning in the profession of law, year after year. That line, delivered by “Rudy Baylor” (played by Matt Damon), was as follows:

“Every lawyer, at least once in every case, feels himself crossing a line that he doesn’t really mean to cross. It just happens. And if you cross it enough times, it disappears forever. And then you’re nothing but another lawyer joke, just another shark in the dirty water.”

This author started taking and defending depositions in the early 2000s. My training was laser-focused on the content of the questions, witness preparation, and above all else, the insatiable—and short-sighted—quest to box in the witness to the point where a “gotcha” moment is achieved and you can pat yourself on the back for being the second coming of Perry Mason.

Absent from my training was a discussion about how a lawyer should behave himself or herself at deposition, and why that behavior is relevant. Can you recall a deposition skills training course, be it a CLE or otherwise, where you were taught about the implications of your behavior? I cannot. Any lawyer that has taken or defended depositions has likely received an education in how to behave (and not behave) at deposition.

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Friends Matter. Must We Divorce Them Too?

Posted on August 8, 2023 by Blank Rome LLP

Stacy D. Phillips ●

Having friends, at any given point and time in life, is a gift. Most really are remarkable people. After all, we cannot choose our family, yet we can choose our friends; and if we are fortunate enough, those friends can become our family. This will not be a minor factor in life if we come to the crossroads of a divorce. It is then we may find out how much our friends really do mean to us, and who really is a lifelong friend.

The very concept of having friends is something we can take for granted. It may be a universal truth that it is more difficult to make friends, or true friends, as we get older. As time goes by, we see that making friends and having friends is not as ubiquitous as it was in the days of the playground, in the halls of high school, or even in college. We so often, all of us, come to a point of realization that those days are behind us, and what we may miss most about the past are our friends.

A new adventure awaits, and as your marriage comes to the crossroads of divorce, it would be no small question as to what will happen to your friendships. Will you have to split the friends as you split the pension, silverware, and furniture? Like the divorce, the answer may not be so pleasing to your heart and soul. Yet regarding friends, you may discover just who is and who is not there with you on your new journey.

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Adjournment Requests in Divorce Litigation: Be Kind

Posted on July 31, 2023 by Blank Rome LLP

New York Law Journal, July 17, 2023 ●

Alan R. Feigenbaum ●

Founded by a Marine in 2017, the “Til Valhalla Project” has donated over $1 million to #Mission22 as part of the fight against veteran suicide. This year, the project rolled out a simple message: “Be Kind.” The foundation of the message is straightforward: “With each kind act, we make the world a little bit better.”

On the subject of kindness, we turn to requests for adjournments in matrimonial practice. Requests for adjournments from your opposing counsel (also known as your adversary) are a routine occurrence. Sometimes you may have double-booked. Other times, you might find yourself overwhelmed on one matter and in need of an adjournment on another matter. Or, you might request an adjournment so that you do not miss a milestone involving a family member. And then, there are those times that a request for an adjournment is made for personal reasons, be it due to issues of physical, or mental health.

The question becomes whether and under what circumstances do you, as the recipient of the request for an adjournment, say “yes” or “no.” Once again, no training was provided to us in law school on how to answer this question.

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Love Hurts When You Ignore Your Prenup

Posted on July 26, 2023 by Blank Rome LLP

New York Law Journal, June 21, 2023 ●

Alan R. Feigenbaum ●

Summer is, or should be, a time for all things beautiful. Part of that beauty is encapsulated in the joy of summer, non-professional reading. But if there was ever a case to be made that professional reading should be added to your summer reading list, look no further than Judge Jeffrey A. Goodstein’s page turning decision in LSS v. MS, Sup. Ct. Nassau Cty. (NYLJ May 19, 2023).

The decision, which is factually intricate, and replete with poignant legal analysis, reads like a short story—a marriage story, in fact, although without the suffocating cliches that permeate Noah Baumbach’s “Marriage Story.”

Indeed, this marriage story involved a 47-month marriage with two parties who entered the marriage with “significant assets,” and, among other things, a dispute over $1,230 worth of electronics purchased from Best Buy. But that is not the subject of this article, although that aspect of the litigation is, believe it or not, addressed in the decision.

The decision reminds divorce lawyers that we cannot control what happens after a prenuptial agreement is signed. Life happens after a prenuptial agreement is signed, and LSS v. MS shows what can happen as a consequence of disregarding the mandate of a prenuptial agreement.

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Forensic Custody Evaluations: A Fundamental Human Right?

Posted on July 20, 2023 by Blank Rome LLP

New York Law Journal, May 31, 2023 ●

Alan R. Feigenbaum ●

What comes to your mind when you find yourself passing through the cereal aisle at your local Target or Wal-Mart? One cannot help but notice the overwhelming number of choices Americans are given in the cereal aisle. There is a cereal for seemingly each and every palate known to humankind.

For this author, I cannot help but associate the ocean of cereal choices with the plethora of diagnoses that make up the Diagnostic and Statistical Manual of Mental Disorders (DSM). The DSM is considered, or has been considered, the bible, or guide, to diagnosing mental disorders.

It can be difficult to pinpoint which version of the DSM is the most recent; it appears to be the “text revision” released in 2022, known as the DSM-5-TR. The DSM-5-TR includes certain disorders that beg the question whether and to what extent we are entering (or have entered) a point in time where, to some degree, we all have a disorder.

It is with that in mind that I urge you to consider the Appellate Division, Third Department’s decision in Matter of Virginia OO v. Alan PP, 2023 N.Y. Slip Op. 1120 (NYLJ March 3, 2023). Matter of Virginia concerned an appeal from an order of the Family Court of Tompkins County granting an application to modify a prior order of custody.

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Embrace the Monotony of Boilerplate Legalese in Prenups

Posted on July 17, 2023 by Blank Rome LLP

New York Law Journal, May 8, 2023 ●

Alan R. Feigenbaum ●

In The Pale King, the novelist David Foster Wallace wrote the following: “To be, in a word, unborable…It is the key to modern life. If you are immune to boredom, there is literally nothing you cannot accomplish.”

As a matrimonial lawyer, nowhere does this wisdom apply more than in the context of reading and reviewing the “boilerplate” provisions in the separation, prenuptial, postnuptial and other agreements that we regularly draft as part of our practice.

Indeed, there is potentially enormous value in establishing a Teflon-like immunity to the understandable boredom that can come with reviewing boilerplate legal language in matrimonial agreements.

A recent decision of the Surrogate’s Court, Kings County, presents an excellent example of how boilerplate legal language can, in some instances, prove more important than the substantive provisions themselves.

Stated differently, the substantive provisions—while instinctively more interesting and engaging to draft, analyze, etc.—can interplay with the boilerplate provisions to such an extent that without intact boilerplate provisions, the substantive provisions may be at risk of dying on the vine.

With that in mind, in Estate of Kevelson (Surrogate’s Court, Kings County, NYLJ, March 8, 2023), Judge Rosemarie Montalbano adjudicated a motion in limine filed by Terri Kevelson nee Bienfeld to preclude admission of a prenuptial agreement from 1992 between her and Stephen Kevelson (deceased) prior to their marriage. The motion was filed in the context of a hearing to determine the validity of the prenuptial agreement.

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In the News

Posted on May 24, 2023 by Blank Rome LLP

Below is a roundup of the recent awards, recognitions, media, and other accomplishments of our attorneys from around the country.

April 19, 2023
Brett S. Ward was interviewed in this Variety article discussing the difficulties with public litigation cases of celebrity divorces.

April 19, 2023
Marilyn B. Chinitz, Kristina Royce and Brett S. Ward have been recognized in Variety’s Legal Impact Report 2023.

April 17, 2023
In this LinkedIn article, Stacy D. Phillips answers questions and discusses the Netflix reality show “Love is Blind.”

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Attorney Spotlight: New York

Posted on May 17, 2023 by Blank Rome LLP

Stacy D. Phillips ●

This edition of Attorney Spotlight highlights one of my honored New York City colleagues in Blank Rome’s Matrimonial & Family Law group—Marilyn B. Chinitz.

A graduate of New York University and the Benjamin N. Cardozo School of Law of Yeshiva University, Marilyn has more than 35 years of experience in family law and arrived at Blank Rome in 2007. Marilyn focuses her skills as a lawyer to empower her clients to rise above the personal difficulty that they face in matrimonial disputes, and to gain their own perspectives on what is important in their lives.

Marilyn is my reliable “bookend” at the firm. We are both naturally very driven professionally but we both also care deeply about community and giving back. Ironically, even though we are on opposite ends of the country, we have occasionally been referred the same client with different matters at the same time or even the same client for one matter. Marilyn finds that she can sometimes represent clients who are the kings and queens of their world, be they hedge fund managers or founders of global businesses. Nevertheless, no matter their accomplishments, divorce and emotional pain are something else entirely, and Marilyn is prepared to guide them through the difficulties in life that may be alien to them.

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A Court Rightfully Protects Spouses of WTC Firefighters

Posted on April 18, 2023 by Blank Rome LLP

New York Law Journal, April 14, 2023 ●

Alan R. Feigenbaum ●

When I was in grade school, each day began with the same ritual: stand at attention facing our nation’s flag, place your right hand over your heart, and state, in unison with your classmates: “I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, one Nation under God, indivisible, with liberty and justice for all.”

An argument can be made—a convincing argument, in fact—that lawyers should begin their workday as follows: stand at attention, place their right hand over their heart, and state, in unison with their fellow colleagues: “As a lawyer, just because I can make an argument, does not mean that I should make an argument.”

That backdrop leads us to a discussion of Justice Karen B. Rothenberg’s recent and, in my strong view, exceedingly praiseworthy decision in McClean v. The Bd. of Trustees of the Fire Dep’t of the NYC Pension Fund (NYLJ 3/21/2023, Sup. Ct., Kings Cty.).

In McClean, the petitioner, Kathleen McClean, moved for an order annulling the determination of the Board of Trustees of the Fire Department of the City of New York and the New York City Fire Pension Fund which denied her application for a Line-of-Duty Death Benefit pursuant to what is known as the World Trade Center (WTC) Legislation arising from the death of her husband, retired firefighter Dennis B. McClean (“Firefighter McClean”).

Kathleen McClean married Firefighter McClean on July 25, 2000. On 9/11, Firefighter McClean responded to the WTC attack and worked at the site for several months thereafter. In April 2002, Firefighter McClean was injured at the WTC site when a metal beam struck his leg and fractured it in several places. Firefighter McClean thereafter obtained a disability pension in 2002. In 2009, Firefighter McClean was diagnosed with prostate cancer; in 2014, the Pension Medical Board linked his cancer to his WTC exposure (to toxins while working at the site) and his pension was reclassified to that of a WTC accidental disability pension. In September 2021, Firefighter McClean died of prostate cancer.

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