n s t i t u t e
I
N Y C L A - C L E
B ridge the G ap 2:
A Program for Newly Admitted Attorneys
D ay O ne
Prepared in connection with a Continuing Legal Education course presented
at New York County Lawyers’ Association, 14 Vesey Street, New York, NY
scheduled for May 13, 2011.
F ac u l t y :
Danielle Greene, Bressler, Amery & Ross
Kevin McMullen, Esq.
Ken Moltner, Bressler, Amery & Ross
Ronnie Powell, Bressler, Amery & Ross
Murray Schwartz, Schwartz and Perry
Hon. Lucindo Suarez, Supreme Court, Bronx County
8 TRANSITIONAL and Non-transitional MCLE CREDITS:
This course has been approved in accordance with the requirements of the New York State Continuing Legal Education
Board for a maximum of 8 Transitional and Non-Transitional credit hours; 3 Professional Practice/Law Practice
Management; 5 Skills.
Information Regarding CLE Credits and Certification
Bridge the Gap 2
May 13, 2011, 9:00AM to 5:00PM
The New York State CLE Board Regulations require all accredited CLE
providers to provide documentation that CLE course attendees are, in fact,
present during the course. Please review the following NYCLA rules for
MCLE credit allocation and certificate distribution.
i.
You must sign-in and note the time of arrival to receive your
course materials and receive MCLE credit. The time will be
verified by the Program Assistant.
ii.
You will receive your MCLE certificate as you exit the room at
the end of the course. The certificates will bear your name and
will be arranged in alphabetical order on the tables directly outside
the auditorium.
iii.
If you arrive after the course has begun, you must sign-in and note
the time of your arrival. The time will be verified by the Program
Assistant. If it has been determined that you will still receive
educational value by attending a portion of the program, you will
receive a pro-rated CLE certificate.
iv.
Please note: We can only certify MCLE credit for the actual time
you are in attendance. If you leave before the end of the course,
you must sign-out and enter the time you are leaving. The time will
be verified by the Program Assistant. Again, if it has been
determined that you received educational value from attending a
portion of the program, your CLE credits will be pro-rated and the
certificate will be mailed to you within one week.
v.
If you leave early and do not sign out, we will assume that you left
at the midpoint of the course. If it has been determined that you
received educational value from the portion of the program you
attended, we will pro-rate the credits accordingly, unless you can
provide verification of course completion. Your certificate will
be mailed to you within one week.
Thank you for choosing NYCLA as your CLE provider!
New York County Lawyers’ Association
Continuing Legal Education Institute
14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646
Bridge the Gap 2
May 13, 2011
9:00 AM – 5:00 PM
AGENDA
8:30AM – 9:00AM
Sign in and Registration
9:00AM - 9:05AM
Introductions and Announcements
9:05AM – 10:55AM
Overview of Employment law
Murray Schwartz
11:00AM – 12:40PM
Introduction to Estate Planning
Ronnie Powell & Danielle Greene
12:40PM – 1:10PM
LUNCH
1:10PM – 2:50PM
Summary Trials: Becoming Part of the Civil Practice
Fabric
Hon. Lucindo Suarez; Kevin McMullen
3:00PM – 4:40PM
State Court Practice
Ken Moltner
New York County Lawyers’ Association
Continuing Legal Education Institute
14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646
Bridge the Gap 2
Friday, May 13, 2011
9:00 AM – 5:00 PM
Table of Contents
Section
Overview of Employment Law
1
Introduction to Estate Planning
2
Summary Jury Trials (separate book)
Overview of Civil Litigation in New York
3
May 13, 2011
New York County Lawyers’ Association
An Introduction to
Employment Law:
The Most Exciting Field in the Law!
Materials Prepared and Presented by:
Murray Schwartz, Esq.
SCHWARTZ & PERRY L L P
295 Madison Avenue
New York, New York 10017
Telephone - (212) 889-6565
Fax - (212) 779-8208
mschwartz@schwartzandperry.com
www.schwartzandperry.com
Copyright 2011, Schwartz & Perry LLP
TABLE OF CONTENTS
I.
INTRODUCTION
1
A.
A Brief Overview Of Certain Laws
Addressing Employment Discrimination
3
B.
Background of the NYCHRL
5
II.
EMERGING DEVELOPMENTS IN EMPLOYMENT LAW
8
A.
Increase in Gender and Age Discrimination Claims
8
B.
Recent Focus on Employment Law
10
III.
HOW TO EFFECTIVELY COMMENCE AN
EMPLOYMENT DISCRIMINATION CLAIM
11
A.
The Initial Investigation
11
B.
Initial Client Contact
12
C.
Identifying and Obtaining Documentation that Will Enable You
to Consider the Merits of the Claim
13
D.
Review the Employer’s Website
14
E.
Reviewing the Annual Report
15
F.
Claimant’s Profile
15
G.
Determining the Extent of Emotional Damages
16
H.
Calculating the Full Measure of Financial Damages
16
I.
Mitigating Damages
17
J.
Experts Required
18
a.
b.
c.
18
18
19
Economist
Vocational Expert
Therapist
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K.
Legal Research at the Outset
19
L.
Burden of Proof
20
M.
The Anticipated Strength or Weakness of
the Employer’s Position
20
IV.
YOUR FIRST CONTACT WITH THE EMPLOYER
21
A.
The Claim Letter
21
B.
The Negotiation Brochure
21
V.
ACTUAL NEGOTIATIONS
23
A.
Discuss the Law
23
B.
Discuss the Facts
23
C.
Discuss the Injuries
23
VI.
CONCLUSION
24
Copyright, Schwartz & Perry LLP 2011
I. INTRODUCTION
The challenging and dynamic field of employment law is one that has grown significantly
and will continue to grow in the coming years. The prevalence of discrimination in the workplace
is confirmed by statistics from the Equal Employment Opportunity Commission (“EEOC”).
Between the years of 2007 and 2010, the number of employment discrimination claims filed with
that agency rose by over 17,000.1 The total number of claims in 2010 reached an astounding
99,922.2 This increase in claims filed with the EEOC includes claims in all areas of unlawful
discrimination.
This general increase in claims occurs for a number of reasons. One, of course, is the greater
awareness by employees in the workforce of their human rights and their willingness to take action
against an employer who violates those rights. Other reasons involve the broadening of the remedies
available, in conjunction with the fact that terminated employees have significant difficulty in
securing new employment and become willing to pursue judicial remedies. Employees who are
discharged have more time to consider the reason for their termination and act upon it if they believe
their treatment in the workplace was unlawful. Discharged employees frequently meet those who
pursued their legal remedies and were successful. This provides employees with new insights into
the remedies that exist if their treatment was unlawful.
The increase in employment law claims has, of course, necessitated an increase in attorneys
required to handle the larger workload. Many large law firms moved attorneys from other practice
groups, where there was not a great need during the economic downturn, to the employment law
1
http://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm
2
Id.
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arena. The National Law Journal reported that major corporate law firms are adding attorneys in
their labor and employment groups due to the increase in volume and complexity of the employment
matters that their employer-clients are facing. Some firms are utilizing their litigation groups in
record numbers to deal with the rise in employment law cases. Other firms are moving associates
from areas of law hard-hit by the economy, such as banking, insurance, mortgage, natural resources,
pharmaceuticals, and telecommunications, to the employment law practice group, all of which
reflects an increase of activity in the field of employment law.3
It is our hope that this lecture will give you a brief overview of some of our experiences in
the exciting field of employment law. This submission includes a discussion of certain important
components of a discrimination claim, presented essentially from plaintiff’s counsel’s point of view.
Set forth below in the footnote4 is a list of certain leading cases, which identify significant
3
Sheri Qualters, Firms Beef Up Employment Practices, National Law Journal, March 17,
2008 at 10.
4
Meritor Savings Bank, FSB v. Vinson 477 U.S. 57 (1986); McDonnell Douglas Corp.v.
Green, 411 U.S. 792 (1973); St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993) (organizing
the order of proof in discrimination claims); Harris v. Forklift Systems Inc.,510 U.S. 17, 19
(1993) (“Title VII comes into play before the harassing conduct leads to a nervous breakdown,”
and the standard of finding the word environment offensive is from the perspective of a
“reasonable person”). Sheridan v. E.I. DuPont, 100 F.3d 1061, 1070 (3d Cir. 1995),(quoting
Jackson v. Univ. of Pittsburgh, 826 F.3d 1074, 1081-82 (3d Cir. 1996) (“[D]iscrimination
victims often come to the legal process without witnesses and with little direct evidence
indicating the precise nature of the wrongs they have suffered.”)); Desert Palace, Inc. v. Costa,
539 U.S. 90(2003); State Div. of Human Rights v. Kilian Mfg., 35 N.Y.2d 201, 209 (1974)
(“One intent on violating the law against discrimination cannot be expected to declare or
announce his purpose. Far more likely is it that he will pursue his discriminatory practices in
ways that are devious, by methods subtle and elusive -- for we deal with an area in which
“subtleties of conduct...play no small part.”); McIntyre v. Manhattan Ford, Lincoln-Mercury,
Inc., 672 N.Y.S.2d 230 (N.Y. 1997); Thoreson v. Penthouse International LTD,149 Misc.2d 150
(N.Y. 1990); Bracker v. Cohen 204 A.D.2d. 115 (NY 1994); Rudow v. New York City Comm=n
on Human Rights, 123 Misc.2d 709 (1984); Carlton v. Mystic Transp., Inc., 202 F.3d 129, 135
(2d Cir. 2000) (“Plaintiffs in discrimination suits often must rely on the cumulative weight of
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2
concepts in the employment law field. It is by no means all-inclusive. Instead, it is intended to
identify certain subjects which you may wish to consider to determine what must be established in
order to adequately present your claim. Finally, we urge you to review relevant periodicals and
journals, which are designed specifically for attorneys practicing in the field of employment law.
You might consider regularly reviewing the National Law Journal and the New York Law Journal,
which frequently contain decisions of interest on employment law issues. Also helpful are BNA’s
Employment Discrimination Reports, as well as employment reports discussing relevant verdicts and
settlements.
A. A Brief Overview Of Certain Laws
Addressing Employment Discrimination
Employees are essentially protected from employment discrimination under the Federal Law
through Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000-E-2 et. seq, the Age
Discrimination in Employment Act (ADEA), 29 U.S.C. §621-§634, the Americans with Disabilities
Act (ADA), 42 U.S.C. §12101 et. seq. Employees in New York are further protected by the New
York State Executive Law, Chapter 18, Article 15, § 296(1)(a) and, perhaps most importantly, by
circumstantial evidence, since an employer who discriminates against its employee is unlikely to
leave a well-marked trail, such as making a notation to that effect in the employee’s personnel
file.”); Ostrowski v. Atlantic Mutual Ins. Co., 968 F.2d 171, 180 (2d Cir. 1992) (“The Price
Waterhouse Court made clear that the burden-shifting threshold a plaintiff must cross is proof
that the forbidden animus was at least one of the ‘motivating’ factors in the employment
decision; he or she need not show that it was the sole reason, or the ‘true’ reason, or the
‘principle’ reason.”), citing Price Waterhouse v. Hopkins, 490 U.S. 228, 247 (1989); Texas v.
Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981); Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 148 (2000) (“Thus, a plaintiff’s prima facie case, combined with
sufficient evidence to find the employer’s asserted justification is false, may permit the trier of
fact to conclude that the employer unlawfully discriminated.”).
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the New York City Human Rights Law, Administrative Code of the City of New York, Chapter I,
Title 8, § 8-107. Filing suit under Title VII may lead to a plaintiff’s award of compensatory
damages, attorneys fees and punitive damages. However, compensatory damages are capped. For
a plaintiff, filing under the New York City Human Rights Law is the most advantageous, as it
provides the broadest possible remedies.
Generally, all three laws essentially cover similar protected categories. The New York City
Human Rights Law is the most protective and allows for the greatest remedies for a plaintiff. The
City Law provides for attorneys fees, uncapped compensatory damages and punitive damages.
Under the New York State Law, a plaintiff can recover uncapped compensatory damages, however
neither attorneys fees nor punitive damages may be awarded.
Compared to its federal and state counterparts, the New York City law offers far broader
protection to a victim of employment discrimination. Through an amendment to the City Law
known as the Local Civil Rights Restoration Act of 2005, the New York City Human Rights Law
has become a leading example of a progressive and effective civil rights statute.
If the offending conduct takes place within the five boroughs of New York City, then the
New York City Human Rights Law becomes available. Additionally, the First Department, in
Hoffman v. Parade Publications, 878 N.Y.S.2d 320 (1st Dept. 2009), expanded the protections of
the New York City Human Rights Law to include an out-of-New York City employee impacted by
discriminatory decisions made in New York. Accordingly, the New York City Human Rights Law
may even apply if the discriminatory decisions are made in New York.
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B. Background of the NYCHRL
To protect against the danger that employment discrimination poses to “the great
cosmopolitan population” of New York City, the New York City Council enacted its own human
rights law, noting its policy:
In the city of New York, with its great cosmopolitan population, there
is no greater danger to the health, morals, safety and welfare of the
city and its inhabitants than the existence of groups prejudiced against
one another and antagonistic to each other because of their actual or
perceived differences, including those based on race, color, creed,
age, national origin, alienage or citizenship status, gender, sexual
orientation, disability, marital status, partnership status, any lawful
source of income, status as a victim of domestic violence or status as
a victim of sex offenses or stalking, lawful occupation, whether
children are, may be or would be residing with a person or conviction
or arrest record. The Council hereby finds and declares that
prejudice, intolerance, bigotry, and discrimination and disorder
occasioned thereby threaten the rights and proper privileges of its
inhabitants and menace the institutions and foundation of a free
democratic state. Administrative Code of the City of New York, Title
8, §8-101.
The legislative history of the New York City Human Rights Law “clearly contemplates that
the New York City Human Rights Law be liberally and independently construed with the aim of
making it the most progressive in the nation.” Farrugia v. North Shore Univ. Hosp., 13 Misc.3d 740,
747 (Sup.Ct.N.Y.Cty. 2006). Former New York City Mayor David Dinkins noted at a public
hearing, it was “the intention of the Council that Judges interpreting the City’s Human Rights Law
. . . not be bound by restrictive state and federal rulings and are to take seriously the requirement that
this law be liberally and independently construed.” Id. at 747 n.2. The New York State Court of
Appeals has repeatedly recognized the “enhanced protection against discrimination” and “the broad
policy behind the Local Law to discourage discrimination.” Krohn v. New York City Police Dept.,
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5
2 N.Y.2d 329, 336-37 (2004).
The City Council, however, recognized in 2005 that the City Law was being interpreted
similarly to comparable state and federal statutes, despite the City Law’s clear mandate otherwise.
One such decision interpreting the City Law was McGrath v. Toys “R” Us, Inc., 3 N.Y.3d 421
(2004), where the New York State Court of Appeals interpreted the attorney’s fee provision of the
City Law identically to the comparable federal attorney’s fee statute. While the Court recognized
that “[t]here are many general statements in the legislative history [of the City Law] indicating that
the private right of action provision, adopted to keep the City at the forefront of human rights
protection, should be liberally construed,” the Court nevertheless held that it would interpret the City
Law identically to the federal law.
In October 2005, just one year after McGrath, the New York City Council enacted “The
Local Civil Rights Restoration Act of 2005” which stated:
The purpose of this local law, which shall be known as the “Local
Civil Rights Restoration Act of 2005,” is to clarify the scope of New
York City’s Human Rights Law. It is the sense of the Council that
New York City’s Human Rights Law has been construed too
narrowly to ensure protection of the civil rights of all persons covered
by the law. In particular, through passage of this local law, the
Council seeks to underscore that the provisions of New York City’s
Human Rights Law are to be construed independently from similar or
identical provisions of New York state or federal statutes.
Interpretations of New York state or federal statues with similar
wording may be used to aid in interpretation of New York City
Human Rights Law, viewing similarly worded provisions of federal
and state civil rights laws as a floor below which the City’s Human
Rights law cannot fall, rather than a ceiling above which the local law
cannot rise. Local Law 85, §1
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6
The Restoration Act further mandated:
The provisions of this title shall be construed liberally for the
accomplishment of the uniquely broad and remedial purposes thereof,
regardless of whether federal or New York State civil and human
rights laws, including those laws with provisions comparably-worded
to provisions of this title have been so construed. §8-130.
The Restoration Act, therefore, was enacted to ensure that the federal law “should merely serve as
a base for the New York City Human Rights Law, not its ceiling.” Jordan v. Bates Adver. Holdings,
Inc., 11 Misc.3d 764, 771 (Sup. Ct. N.Y. Cty. 2006); see generally Craig Gurian, A Return to Eyes
on the Prize: Litigating Under the Restored New York City Human Rights Law, 33 FORDHAM URB.
L.J. 255 (2006).
The lower courts of New York have repeatedly recognized the significant impact of the
Restoration Act, which reinforced the broad goals of the New York City Human Rights Law. See
Selmanovic v. NYSE Group, Inc., 2007 WL 4563431, at *4 (S.D.N.Y. Dec. 21, 2007) (“With the
Local Civil Rights Restoration Act of 2005, the New York City Council again amended the statute,
aiming to underscore that the provisions of New York City’s Human Rights Law are to be construed
independently from similar or identical provisions of New York state or federal statutes.”); Okayama
v. Kintetsu World Express (U.S.A.) Inc., Index No. 111494/05 (N.Y.Sup.Ct. June 12, 2008) (“In
accord with the remedial provisions of [the Restoration Act], one court has held that, under the
NYCHRL, once a plaintiff has shown that he or she is a member of a protected group and that he or
she was subjected to sexual harassment because of his or her membership in that group, liability
should be determined by ‘the existence of unequal treatment, and questions of severity and frequency
[should be] reserved for consideration of damages.’”), citing Farrugia, 13 Misc.3d at 748-49.
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We are pleased that our firm represented the Plaintiffs in both Selmanovic and Okayama, as
well as in Thoreson, Bracker, and McIntyre cited on page 2.
Very recently, in Zakrezewska v. The New School, 2010 N.Y. LEXIS 632 (2010), the
legislature once again strengthened the New York City Human Rights Law to provide a more
protective workplace for employees. In Zakrezewska, the New York State Court of Appeals held
that an affirmative defense created by the United States Supreme Court in Faragher v. City of Boca
Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) (the
“Faragher-Ellerth defense”) was inapplicable under the City Law. The defense, in sexual harassment
and retaliation cases, allows an employer to avoid vicarious liability for acts committed by
supervisory employees if the company can: (1) show that it exercised reasonable care to prevent and
promptly correct any sexually harassing behavior, and (2) that the aggrieved employee unreasonably
failed to take advantage of preventative or corrective opportunities or to otherwise avoid harm. In
other words, if the employer has taken all appropriate action and the employee decides to take
advantage of those corrective measures, the employer may avoid liability for harassment. Now, the
court has ruled that an employer cannot avoid liability for these type of claims by relying on the
“Faragher-Ellerth” defense.
II. EMERGING DEVELOPMENTS IN EMPLOYMENT LAW
A.
Increase in Age and Gender Discrimination Claims
In 1967, the federal government addressed the growing problem of ageism by adopting the
Age Discrimination in Employment Act of 1967 (ADEA). With the adoption of the statute, for the
first time, older employees were protected from age discrimination. However, as time progressed
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and more and more people entered the workforce, older people slowly began to be discriminated
against once again. With more employers looking for younger workers and starting to shift job
responsibilities from older, experienced employees to their younger counterparts, the age
discrimination epidemic seems to only be in its beginning stages.5
As part of the mass reductions that have occurred throughout the workplace, large numbers
of older workers are being laid off. Some have argued that this occurs in a disproportionate manner
to older and frequently female workers. Both groups complain that their jobs are being handed over
to less qualified individuals. Forbes published an article highlighting the disappearance of women
on Wall Street, documenting the stories of women who had risen to the top positions in their
companies and were now being laid off in favor of less qualified men.6 Nadine Mentor, a female
executive laid off from a major financial firm, described the company as “the old boys’ network.”
Financial services and insurance firms have cut 260,000 jobs and 72% of the employees laid
off were women, even though they constituted only 64% of those employed before the most recent
economic downturn began. The New York Times published a similar article documenting the plight
of baby boomers who find themselves out of work while their younger co-workers retain their
positions. Statistics show that workers age 45 and over are out of work an average of 22.2 weeks
compared to 16.2 weeks for younger people, and when they do land new jobs, they typically
experience a steeper drop in earnings than their younger counterparts.
At the same time, these older workers are finding interviewers are turned off by their age,
5
Jennifer Levitz & Philip Shishkin, More Workers Cite Age Bias After Layoffs, The Wall
Street Journal, March 11, 2009, at D1.
6
Anita Raghavan, Wall Street’s Disappearing Women, Forbes, March 16, 2009 at 72.
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9
making job opportunities harder to come by.7 In discussing the difficulty of finding a job, a 52 year
old laid off worker struggling to make ends meet stated, “Sometimes I just break down and start
crying. . . I can’t do anything about my situation.”8 Age discrimination charges filed with EEOC
were up significantly between 2007 and 2010.9 Even those with jobs are not without employment
problems. The National Law Journal places the pay gap between female and male lawyers at 13%
at its highest point.10 All of this has caused terminated employees in certain classes, such as older,
female employees to question whether their terminations were the onset of age and/or gender
discrimination.
According to the Bureau of Labor Statistics, “between 2002 and 2012, the number of workers
older than 55 in the workplace will increase by 50%.”11 With this extreme increase, the number of
age discrimination cases, unfortunately, will also increase as younger generations enter the workforce
competing with the increasingly larger amount of workers over 50.
B.
Recent Focus on Employment Law
Recently, the United States Supreme Court ruled that a female who was discriminated against
7
Michael Luo, Longer Periods of Unemployment for Workers 45 and Older, The New
York Times, April 13, 2009, at A11.
8
Id. at A7.
9
http://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm
10
Lynne Marek, Women in Law Still Paid Much Less Than Men, The National Law
Journal, November 24, 2008, at 26.
11
Study: Older Workers Fear an Increase in Ageism in the Workplace,
http://blog.diversityjobs.com/node/3460612.
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10
by receiving lower compensation than her male counterparts over the course of nearly two decades
had lost the opportunity to try the case because employees must bring these types of claims within
180 days of the company’s decision to pay one employee less than the other.12 In response to this
unfavorable decision for employees, as one of his first Executive Orders in 2008, President Barack
Obama signed into law the “Lilly Ledbetter Fair Pay Act of 2009.” The Fair Pay Act resets the 180
day statute of limitations for filing these type of claims each time a discriminatory paycheck is paid
out.
Another recent development in the field is the Employment Non-Discrimination Act
(“ENDA”). If enacted, the ENDA will add sexual orientation and gender identity as protected
categories under Title VII. The ENDA has been on the floor of Congress every year but one since
1994, and continued with the 111th Congress in 2009-2010. Such emerging social conflicts are the
type that have to be dealt with in a future that was unforeseen in 1964. The continuing evolution of
employment law is one of the reasons that this field is so dynamic and exciting.
Changes occur in every field of law and, as has been discussed, employment law has seen
many in recent years. However, much of the practice of employment law remains the same. What
follows is an overview of the steps required to commence an employment discrimination claim from
the initial contact with the client through negotiations with your adversary.
III. HOW TO EFFECTIVELY COMMENCE AN
EMPLOYMENT DISCRIMINATION CLAIM
A.
The Initial Investigation
The successful prosecution of any discrimination claim requires, first and foremost, a
12
Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007).
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properly conducted investigation. Not only will such an investigation significantly reduce the
potential for surprise, it will also provide counsel with well-documented support during negotiations,
as well as a good foundation for preparing the case for litigation, if that becomes necessary. It is
crucial, therefore, that any investigation undertaken by you is done thoroughly and thoughtfully.
B.
Initial Client Contact
Upon being contacted by a potential client, it is to your advantage to learn the general facts
and allegations and to determine whether your services are required. It is during this initial
communication that you will likely discern whether the elements required to sustain an employment
discrimination claim are present. To sustain a claim of employment discrimination, your potential
client must prove that he/she: 1) is a member of a protected group; 2) was qualified for the position
sought or from which he/she was discharged; and 3) suffered an adverse employment action under
circumstances giving rise to an inference of unlawful discrimination.13
In this regard, even your very first phone conversation with a potential client can be
significant because you can obtain enough information to determine if pursuing the matter further
is warranted. An initial phone conversation also gives you the opportunity to identify any material
that you believe should be forwarded to you by the potential client either before or at your very first
meeting.
During the initial interview, we customarily provide our client with a list of material that will
help us properly present and support their claim. We actually request that our client make a list of
information we desire as well as documents that are necessary in order to properly support the claim.
13
See McDonnell Douglas, 411 U.S. at 802 (1973).
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The client keeps a copy of the list as do we. In this manner, we can remind the client of information
or material that we believe will furnish us with what we require.
The concept of remaining in close contact with the client, certainly in the early stages of the
investigation, and during the period in which you are presenting the claim to the employer, can
provide assurances to you that the likelihood of failing to consider an essential fact is reduced, if not
eliminated.
C.
Identifying And Obtaining Documentation That Will
Enable You To Consider The Merits Of The Claim
In order to evaluate and properly pursue a claim, it is crucial to secure as much
documentation from the client as soon as possible and to determine what additional information you
must obtain. Since most of the documents you will require are in the employer’s possession, you
may have to wait until the commencement of discovery to obtain all of the necessary documents.
By way of example, the background of the alleged perpetrator, the company’s policy with regard to
the discrimination, information regarding other similar incidents, the company’s investigation, if any,
of the alleged discrimination and much more, may not become available until litigation commences
and discovery is pursued. Nevertheless, to make your discovery more meaningful, you must do all
you can in order to better know what relevant material to seek and where to find it. This will assist
you in evaluating the merits of the claim. The investigation should begin as soon as you are
contacted in order to determine, as fully as possible, whether you believe a viable claim exists, before
you accept representation.
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Potentially relevant documents and information which should be obtained by you prior to
discovery include, only by way of example, the following:
D.
C
Employee handbook;
•
Performance evaluations and other written appraisals
of the client’s performance;
•
Narrative of conduct establishing components of the
claim;
•
Other claims of discrimination against the employer;
•
Any and all corroborating emails and memos that may
exist;
•
Witness statements, if any;
•
IRS W-2 forms to properly identify the employer;
•
Available information on the company website;
•
Searches to identify corporate existence;
•
Client’s resume;
•
Detailed time line;
•
The nature of your client’s complaints to their
supervisor or human resources, if any;
•
The manner in which adverse employment action has
been taken against your client.
Review the Employer’s Website
We believe that in the initial stage of the investigation, a careful review of the employer’s
website can provide information that can be tremendously helpful. For example, we obtained
significant support in a glass ceiling - gender discrimination claim in which our client alleged that
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she was unable to advance her career because of her gender from photographs on the employer’s
website. These photographs demonstrated that the entire management team as well as the Board of
Directors consisted only of men. Sometimes, therefore, an employer is hard pressed to reasonably
argue that gender discrimination did not exist when, of the 20 or 30 management leaders pictured
on the employer’s website, not one female was shown as part of these high-level management
groups. There is also other material often times available through an employer’s website which you
should review as early as possible because it often provides helpful information.
E.
Reviewing the Annual Report
In cases in which the employer is a publicly held company, much can be gained by reviewing
its annual report. The annual reports may also provide photographs that might be of assistance. It
can also be very helpful when an employer’s defense invokes issues regarding the company’s
financial status and the annual report indicates otherwise. The annual reports can often be obtained
on the company’s own website or from any financial advisor.
F.
Claimant’s Profile
On occasion, basic internet research such as “Googling” a name can reveal significant
information. You should, of course, inquire from your client, as to whether they have a website or
are a member of any online or social networking community. If so, you should ask your client to
provide you with a copy of the material that is contained on his or her website, particularly since the
employer may obtain the information through other means, such as from co-workers.
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G.
Determining The Extent Of Emotional Damages
Once the question of liability is fully addressed and all the documentation available to
support your client’s position is secured, you should then address the issue of damages.
If the client has sought some type of medical care following the onset of the discriminatory
conduct, contact the medical provider and arrange to meet with the doctor, psychologist or social
worker to obtain the medical provider’s opinion of the effect the discrimination may have had upon
the victim’s well-being. You will want to review the notes of the medical provider, as well.
It is also advisable to meet with the client’s spouse, friends, family members or co-workers
to determine how the conduct complained of may have affected the client. Counsel should, however,
make certain that such a relationship is close enough for them to have a meaningful opinion. The
persons interviewed should always be made to understand that their observations should not be based
on their respective relationships with the claimant, but rather by actual observations that a fact finder
would find credible.
Any material you obtain with respect to the emotional damages resulting from the employer’s
discriminatory conduct, including the prognosis, will greatly assist a jury and the trial court in
determining the full extent of the injuries inflicted upon your client.
H.
Calculating The Full Measure of Financial Damages
Certain damages suffered by an employee resulting from acts of discrimination are easily
quantifiable, such as losses affecting salary, bonuses, and retirement benefits. It is important to look
beyond mere salary loss for all aspects of damages. However, labor market statistics and studies can
establish definitively that, in addition to the obvious short-term losses, employees who have been
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terminated, experience a sharp decline in earnings after being terminated. The fact is, wrongfully
dismissed employees face a reduced lifetime earning capacity in comparison to other employees with
similar credentials and characteristics. Overall, when displaced workers become re-employed, they
earn less than other workers with similar characteristics. There are several areas involved that should
be addressed, such as:
I.
•
The Stigma of Dismissal - Prospective employers
place a strong negative weight to a previous
discharge, regardless of the reason. This may cause a
victim of discrimination to be labeled a “problem
employee”;
•
The Pressure to Accept Less Favorable Employment Many displaced workers earn less in their new jobs.
This is, in part, due to the fact that they are forced to
start a new position without benefit of longevity and
are learning a new job;
•
The Loss of Bargaining Power - It is clearly more
difficult to negotiate for a new position from a state of
unemployment, as a prospective employer will always
question why an applicant is without a job.
Mitigating Damages
If the client has been unsuccessful in seeking other employment following a wrongful
termination, verification of his or her job search expenses, interviews, submission of resumes and
other such mitigation efforts should be marshaled to demonstrate mitigation of damages. In fact, the
Second Circuit has held that victims of employment discrimination who fail to mitigate their
damages by diligently seeking comparable jobs after they were fired are not entitled to compensatory
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damages.14
J.
Experts Required
In cases where litigation appears inevitable, it is also advisable to secure the opinion of a
well-regarded expert who is experienced with discrimination cases and can evaluate the client.
Testimony of an expert witness is significant in establishing the extent of the client’s financial
damages, emotional injuries and mitigation of damages during trial.15
There are at least three different types of experts that are useful in employment cases:
a.
Economist
An economist is essential in order to identify the full extent of the income that
may have been lost by your client up to the date that his or her case is tried, and
certainly into the future. Your client may have had to accept a lower salary in order
to obtain a subsequent position. To fully and accurately depict that loss, the
testimony of an economic expert may be required to establish, through acceptable
methods, the financial damages sustained by your client and to record it in the form
of a report. The report, of course, can be used during the negotiation process and, if
litigation ensues, it can be effective at that time, as well. The cost of the report is
well-worth the expense, given the support it provides during negotiations and the
eventual need for such testimony, if litigation is instituted.
b.
Vocational Expert
A vocational expert may be used in order to identify the availability of a
position that your client is qualified to obtain. The expert could discuss the job
market and be of considerable assistance in explaining your client’s mitigation
14
See Greenway v. Buffalo Hilton Hotel, 1998 WL 210677 (2d. Cir 1998) (holding that
Plaintiff was not entitled to the $440,000 awarded to him for compensatory damages because he
did not make reasonably diligent efforts to find suitable employment).
15
Although the existence of compensable mental injury may be proved without medical
testimony and solely through Plaintiff’s own testimony, See New York City Transit Authority v.
State Division of Human Rights, 78 N.Y. 2d 207, 216 (1991) (recognizing that evidence of prior
treatment or expert testimony at trial is most significant during trial.
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efforts. If there are only a few positions available at the time of your client’s search,
it would be helpful to provide the jury with testimony in order to reflect that if your
client has not secured a job, there was a reasonable basis for that inability. This
would respond to any suggestion that your client was not genuinely attempting to
mitigate his or her damages.
c.
Therapist
In addition to the financial loss sustained, clients frequently sustain emotional
injuries. For that reason, it is essential, if you intend to establish an emotional injury,
to obtain an expert to identify the injury and explain its cause and the prognosis. It
is essential for the jury to understand what impact the injuries had on the quality of
your client’s life. This can most effectively be done by a medical provider or a
therapist who renders such services. You should, therefore, consider how best to
present the extent of your client’s emotional injuries to the jury. We believe that this
can most effectively be established through the testimony of a psychiatrist,
psychologist or social worker who is equipped to define any emotional injuries your
client may have sustained, as well as the mechanism by which they occurred. You
will be required to establish the causal connection between any emotional injuries
that the expert determined occurred and the employer’s conduct. This will require
the presentation of medical proof in a form which is legally acceptable.
K.
Legal Research at the Outset
Even before you speak with the company’s representative, you should be well-versed and
knowledgeable not only in the facts of the individual case, but in any legal issues that may arise.
Research all the legal issues that may apply to your case, including constructive discharge, where
your client alleges that he or she was forced to leave his or her employment as a result of the
company’s conduct and imputing liability to the company for the acts of its employees, whether the
Plaintiff’s supervisor or co-workers were responsible. Compare Farragher v. City of Boca Raton,
524 U.S. 775 (1998) and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998) with Father Belle
Cmty. Ctr. v. Division Of Human Rights, 221 A.D.2d 44 (4th Dept. 1996).
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Also, be prepared to present the full extent of damages suffered by your client. Research past
jury verdicts in similar cases, in the same or similar venue, to properly present the full risk to the
company.
L.
Burden of Proof
The burden of establishing the elements required to create a viable cause of action rests on
the plaintiff. Discuss with the potential client what proof is required to establish a cause of action.
Since the plaintiff will be required to establish the existence of the components necessary to support
a valid claim, you must be able to identify the existence of the proof and determine if it can be
acquired during discovery or directly from the client.
M.
The Anticipated Strength or Weakness Of The Employer’s Position
We must not ignore the strength or weakness of your adversary’s position. Therefore, when
speaking with the potential client at the very first meeting, explore the characteristics of the
witnesses that can be anticipated to be called by the employer. Frequently, a lack of credible support
from the employer’s side can significantly impact the value of the employee’s claim. Remember, in
evaluating your claim, take into account the strength or weakness of the employer’s defense, just as
the employer will do in evaluating the employee’s claim.
A significant error in evaluating a claim frequently results from not devoting enough attention
to the weaknesses or strengths that you know exist in the employer’s position. Often, the alleged
perpetrator and those that you learn will be offered as witnesses by the employer are not strong and
they, themselves may have had issues in their employment history. Therefore, in order to evaluate
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the claim fairly and realistically, you must include in the components you consider, the strength or
weakness of your opponent’s position.
IV. YOUR FIRST CONTACT WITH THE EMPLOYER
A.
The Claim Letter
Your first contact with the company should not take the form of a long letter outlining every
detail of your client’s case, as in a bill of particulars. Rather, we find that a short and simple letter
that requests a meeting with the company’s representative to discuss claims of employment
discrimination is appropriate and customarily receives a response.
When you receive a response from the company’s representative, schedule an in-person
meeting to discuss the issues if that is at all possible. Desiring to ascertain the specific claims your
client raises, the company will value such a meeting. Wherever possible, avoid presenting the facts
of your case on the telephone, which can be cold and superficial. It also denies you the opportunity
to present relevant exhibits to the company.
B.
The Negotiation Brochure
Once you have secured a meeting with a representative of the company, you must prepare
all the material you have gathered up to this point. Create a negotiation book to bring to the meeting.
This is not something that will be given to your adversary, but rather it is an effective tool to
consolidate the many facts of your case into one cohesive and well-organized binder for your
reference.
While each case will naturally have its own relevant facts and supporting information, the
negotiation brochure may contain, at least the following:
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C
Client background including a time line, bullets setting forth
the essential facts of the case, the conduct being complained
of and the damages your client has suffered;
C
Performance evaluations establishing your client’s effective
performance or, where applicable, the discriminatory conduct
of which he or she complaints;
C
Any exhibits, e-mails or documents establishing, among other
things, discriminatory or retaliatory motives or actions on the
part of the company or its employees;
C
Any relevant articles assisting your case. For example, a
press release from the company expressing a desire for
“young blood” would be extremely probative in a claim of
age discrimination;
C
A medical report or notes from a psychologist, social worker
or therapist who is treating the client for emotional distress;
C
A copy of the company’s anti-discrimination policy;
C
A copy of the New York City Human Rights Law, which
provides a full range of damages from uncapped punitive
damages to attorneys fees and was recently strengthened
through the Restoration Act of 2005;
C
Law supporting any disputed issues, such as constructive
discharge.
Arrive at your first meeting with the company as if you were prepared to present your claim
to a jury. With proper advance preparation, you should leave your adversary knowing that you
intend to do just that, if necessary.
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V. ACTUAL NEGOTIATIONS
A.
Discuss the Law
At the time you conduct your first meeting with the employer’s representative, you should
have available copies of the cases that establish the components necessary to prove valid claims.
During this very first meeting, it would prove helpful if you could, very generally, convince the
employer’s representative that these required elements exist and can be readily established. If you
are seriously interested in settling the matter, reminding the employer’s representative that you not
only have the law on your side but also the required facts to establish a viable claim, moves you a
long way toward a successful negotiation.
B.
Discuss the Facts
With the broad depth of discovery available, you must dissuade yourself from believing that
there are many surprises available during a trial. You might just as well discuss the relevant facts,
even if only in general fashion, with your adversary. By doing so, you will also likely obtain the
benefit of their response. We consider it highly worthwhile to be candid during the first negotiation
session, since it is the best way to build an open and honest relationship with your adversary. Having
done so, you stand a far better chance at constructing a fair settlement than you might have otherwise
achieved.
C.
Discuss The Injuries
We believe that it is highly advisable to discuss the injuries that your client has suffered
during the negotiation. Without providing your adversary with the actual emotional and physical
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damages, they will be unaware of the extent of the damage to the client. This is especially true for
the emotional damage suffered. The financial damage, such as lost wages, are easily quantifiable.
Emotional damages are not something that can easily be calculated or viewed with an x-ray. It is
important during the negotiations to point to the relevant emotional harm that your client has
suffered.
VI. CONCLUSION
Employment discrimination is one of the most increasingly evolving and complex areas of
the law. It is also an exciting and rewarding area in many, many ways.
It has been my deep pleasure and privilege to share our experiences with you.
*****
SCHWARTZ & PERRY, LLP
Murray Schwartz, Esq.
295 Madison Avenue
New York, New York 10017
Telephone - (212) 889-6565
Fax (212) 779-8208
mschwartz@schwartzandperry.com
www.schwartzandperry.com
Copyright, Schwartz & Perry LLP 2011
24
Estate Planning
Ronnie Powell
Danielle Greene
2
ESTATE PLANNING
RONNIE ANN POWELL, ESQ.
DANIELLE R. GREENE, ESQ.
Bressler, Amery & Ross, P.C.
www.bressler.com
325 Columbia Turnpike
Florham Park, NJ 07932
(973) 514-1200
----17 State Street
New York, NY 10004
(212) 425-9300
I.
OVERVIEW.
A.
State law, rather than Federal law, governs property succession at death.
B.
In New York, the laws which set forth the intestate distribution scheme,
the requirements of a valid Will, rules of construction and interpretation, and the methods
of estate administration are in Article 4 of the New York Estates, Powers and Trusts Law
(EPTL).
C.
Probate Transfers – Controlled by provisions of decedent’s Will or by
New York law.
1.
Intestate succession. If a decedent dies without a Will, or if a
decedent’s Will does not dispose of all of the decedent’s probate assets, New York law
directs disposition of such property by intestacy. See EPTL §4-1.1 through §4-1.6.
2.
Transfers by Will. If a decedent dies with a valid Will, assets are
disposed of as provided thereunder.
D.
Non-Probate Transfers – Controlled by contract or title ownership.
1.
Joint tenancies and tenancies by the entirety. Examples include:
a. House owned by husband and wife as tenants by the entirety
b. Multi-party account with right of survivorship
2.
Contracts (with a designated
owner’s/decedent’s Estate). Examples include:
beneficiary
other
than
the
a. Life Insurance
b. Annuities
c. Retirement Plans
II.
INFORMATION GATHERING.
A.
Before the Initial Meeting. It is useful to gather information about the
clients. This can be done by the clients completing an estate planning questionnaire on
which the clients provide information about the their family, their assets and the
ownership/registration of their assets. Some clients are overwhelmed by the whole
process and do not feel comfortable with completing the questionnaire in advance of the
meeting.
B.
The Initial Meeting. The attorney’s goal is to put the clients at ease.
Estate planning involves knowing personal affairs of and sensitive facts about the clients.
1
If the clients are not at ease, they might not disclose all relevant information, which is
necessary for the attorney to draft an efficient estate plan.
The attorney should listen to the objectives of the clients. Some objectives are tax
driven, some objectives are not.
Important information to obtain from the client includes the following:
 Name, citizenship, addresses, dates of birth and social security
numbers of the clients, their children, their grandchildren and any other beneficiaries of
the clients’ estate plans;

Current marital status of clients, children and grandchildren;
 Prior marriages, including any rights or obligations pursuant to any
divorce or property settlement agreement;

Prior transfers, including whether any gift tax returns were filed;
 Any special situations or health concern of the clients, their children
and any other beneficiary;

Names and contact information of financial advisors;
 Whether the clients expect to receive any large sums in the foreseeable
future, by inheritance or through employment;

Information on employment, including all types of compensation;
 List of all assets with current values and details regarding the
registration and the beneficiaries designated (if applicable);

List of all liabilities; and

Current estate planning documents and any premarital agreement.
C.
The Retainer Agreement (Engagement Letter). After meeting with the
clients, the attorney should send the clients a retainer agreement setting forth the scope of
the engagement, who will perform the services and the billing information. Estate plans
can be done on an hourly fee, in which case the retainer agreement should list the hourly
rates of the individuals who will perform the services. Estate plans can also be done on a
fixed or flat fee. To determine the amount to charge if using a fixed fee, the attorney
must project the anticipated hours it will take the persons performing the services to
complete the job.
2
III.
NON-TAX BENEFITS OF AN ESTATE PLAN.
A.
Control over Disposition. Without a Will, the intestacy laws of the State
of the decedent’s residence will determine who receives the decedent’s property. Under
New York law, the surviving spouse will receive a decedent’s entire estate if the decedent
is not survived by any issue. Otherwise, the decedent’s spouse will get $50,000 plus onehalf of the residue of the decedent’s estate, and the decedent’s descendants (children) will
receive the balance of the estate. See EPTL §4-1.1. This is not the choice that most
individuals would make voluntarily.
B.
Guardians for Minor Children.
1.
Without a Will, you cannot name a guardian for your minor children.
In such a case, a Court would determine who will be the guardian.
2.
With a Will, you have control over the person you want to raise and
care for your children.
C.
Trusts for Minor Children.
1. Timing for receipt of property.
2. Spendthrift protection.
D.
Choice of Executor. Under a Will, you can choose the Executor, the
person who is responsible for administering the estate. The Executor’s duties include:
1.
Marshaling assets - The assets belonging to the estate will be
transferred into the name of the estate.
2.
Payments of debts and expenses - Any outstanding debts will be
paid by the Executor from the assets of the estate.
3.
Distribution of assets - After all liabilities and taxes have been paid,
the estate assets will be distributed in accordance with the terms of the Will.
E.
Choice of Trustee. Under a Will, you can choose the Trustee, the person
who is responsible for managing the assets for your children until your children reach a
certain age.
IV.
KEY TAX RULES.
A.
Gift Tax Exemption. For 2011 and 2012, each individual is allowed to
transfer during lifetime up to $5,000,000 of assets without incurring Federal gift tax.
Unless Congress acts, in 2013 the gift tax exemption will revert back to $1,000,000.
The current Federal gift tax rate for gifts over the $5,000,000 exemption is 35%.
3
There is no New York gift tax.
B.
Federal Estate. The unified credit shields property from estate tax,
regardless of to whom such property passes. The amount shielded by the unified credit is
known as the “applicable exclusion.” For 2011 and 2012, the Federal applicable
exclusion amount is $5,000,000 (which is indexed for inflation beginning in 2012).
Unless Congress acts, in 2013, the applicable exclusion amount will revert back to the
exclusion amount of $1,000,000 under the law which was in effect in 2001.
The Federal estate tax rate is 35%.
C.
New York Estate Tax. New York enacted legislation which freezes the
applicable exclusion amount for New York estate tax at $1,000,000. Therefore, a taxable
estate over $1,000,000 but under $5,000,000 will not be subject to Federal estate tax, but
may be subject to New York estate tax. Thus, careful estate planning must be done to
maximize estate tax savings while minimizing the estate tax due to the State of New York.
D.
Marital Deduction. Qualifying transfers between spouses are effectively
exempt from Federal estate and gift tax through the use of the marital deduction.
However, if the spouse is not a U.S. citizen (i.e. resident or non-resident alien), special
rules apply.
E.
Generation-Skipping Transfer Tax. The Generation-Skipping Transfer
(GST) tax is a separate tax imposed when an individual transfers property to someone
two or more generations below the generation of the transferor (e.g., a grandfather leaves
assets to his grandchildren rather than to his children). For 2011 and 2012, the GST tax
exemption is $5,000,000 (which is indexed for inflation beginning in 2012). Unless
Congress acts, in 2013, the GST exemption amount will revert back to the exemption
amount of $1,000,000 under the law which was in effect in 2001.
There are additional exceptions and special rules. This technique may be used to
save estate taxes at the death of children.
V.
ESTATE PLANNING DOCUMENTS.
A.
Will. Consideration should be given to non-tax concerns, as well as
appropriate tax planning. Non-tax issues would include naming guardians for minor
children, distribution of assets outright or in trusts for beneficiaries, and the appointment
of the fiduciaries who will handle the estate and trust administration. Attention should
also be paid to asset equalization and beneficiary designations.
The Will only governs the disposition of probate assets. The probate estate
includes assets that are owned a client in his or her individual name, assets that are owned
by a client as a tenant in common without any right of survivorship, and assets that are
payable to the client’s estate upon his or her death.
A Will can incorporate tax planning through the inclusion of trusts (see below).
4
B.
Health Care Proxy (Living Will). The purpose of a Living Will is
primarily for an individual to express his or her desires as to whether so-called “heroic
measures” (e.g., CPR, mechanical respiration, administration of food or water) should be
undertaken to keep him or her alive. In addition, an individual may designate some other
person to make health care decisions for him or her in the event that he or she is unable to
do so. These powers include such decisions as to what hospital and what doctor should
treat the individual, whether certain procedures should or should not be undertaken, and
whether “heroic measures” should be administered.
1.
Designation of Health Care Agent. A Designation enables you
to designate the individual to make health care decisions on your behalf if you are not
able to do so.
2.
Health Care Proxy. Under your Proxy/Living Will, you can
indicate under what circumstances you do not want any heroic measures taken.
3.
Health Insurance Portability and Accountability Act of 1996
(HIPAA).
a. Limits the access to health records.
b. Federal protection for privacy of records.
c.
Language is included in the Living Will to ensure that the
individual named as Health Care Agent may have access to your medical records.
4.
Guardian of the Person.
C.
Power of Attorney. The purpose of this document is to enable another
person to take all actions (primarily financially related) that the individual would be
permitted to take, in order to avoid the delay and cost involved in having a guardian
appointed. There are two types of Powers of Attorney – Durable and Springing.
1.
Designation of Attorney-in-Fact. A Power of Attorney enables
you to name an attorney-in-fact to handle your financial affairs.
2.
Guardian of the Property/Conservator.
D.
Beneficiary Designation Forms. A client may have assets that pass to
beneficiaries by beneficiary designation forms. These assets may include life insurance,
retirement plans and annuities. It is important for the attorney to review the beneficiaries
the client has designated to assure that such designations are consistent with the client’s
overall estate plan. If they are not, the beneficiary designations should be updated.
E.
Trusts. Trusts are legal entities created under State law. A trust can be
created by a Will (called a testamentary trust) or by a separate document (called an inter
vivos or lifetime trust).
5
1.
Revocable Trusts. A Revocable Trust is usually a trust for the
benefit of the Grantor. It often provides for the Grantor’s needs during the Grantor’s life,
then provides for the disposition of its assets after the Grantor’s death. The Grantor may
amend or revoke the Revocable Trust at any time. A transfer of assets to a Revocable
Trust does not provide additional savings of estate taxes. A client may create a
Revocable Trust for the following reasons:
a.
Unlike a Will, a Revocable Trust is not a public document.
b.
Assets held in a Revocable Trust avoid probate and
ancillary probate.
c.
Under most circumstances, the Surrogate’s Court does not
govern the administration of a Revocable Trust.
d.
During the life of the Grantor, a Revocable Trust can be
easily amended with fewer formalities than a Will.
2.
Irrevocable Trusts. An Irrevocable Trust is usually a trust for the
benefit of any one or more persons, other than the Grantor. The Grantor may not revoke
an Irrevocable Trust. Irrevocable Trusts could result in a reduction of estate taxes at the
Grantor’s death.
3.
By-Pass Trusts (also called Family Trusts or Credit Shelter
Trusts). A By-Pass Trust can be created under a Will or by another testamentary
document. With proper structuring in an estate plan, a husband and wife can pass a
combined value of $10,000,000 (in 2011) without incurring any Federal estate tax. Some
drafting techniques for By-Pass Trusts include:
a.
The testamentary document should provide that assets with
a total value of not more than the applicable exclusion amount in effect for the year of
death (less the amount of any taxable gifts during life) pass into the “By-Pass Trust.”
b.
The dispositive provisions of the By-Pass Trust may
provide for income and principal to be paid from the By-Pass Trust to the surviving
spouse (and issue) at the discretion of the Trustee during the surviving spouse’s lifetime.
c.
Alternatively, the By-Pass Trust provisions may provide for
the mandatory payment of income and the discretionary payment of principal to be paid
to the surviving spouse.
d.
The surviving spouse may have a limited power of
appointment over the trust assets.
e.
The assets in the By-Pass Trust are not included in the
surviving spouse’s estate at the surviving spouse’s subsequent death.
6
f.
Upon the surviving spouse’s death, the balance of the ByPass Trust is payable to the decedent’s children or other beneficiaries (either outright or
in trust).
g.
A married couple may pass twice the applicable exclusion
amount to their children (or any other beneficiaries) free of estate tax, while enabling the
surviving spouse to have the benefit of the assets through the By-Pass Trust during his or
her lifetime.
h.
Asset ownership must be reviewed and assets retitled, if
necessary. Each spouse should own, in his or her individual name, assets with the value
equal to the Federal and/or New York applicable exclusion amount that will pass under
his or her Will.
4.
Disclaimer Trusts. A Disclaimer Trust can be created under a
Will or by another testamentary document, such as a Revocable Trust. A disclaimer is a
refusal to accept property or interest in property.
Federal Law. A qualified disclaimer is permitted under the Internal Revenue
Code pursuant to §2518. The required elements of a qualified disclaimer include:

The disclaimer must be made in writing;

The disclaimer must be received by the transferor of the interest no
later than nine months from the date on which the transfer creating the interest is made
(or, in the case of an individual under the age of 21 years, nine months after the
disclaimant reaches the age of 21 years);

The disclaimant may not accept the interest or any or any benefits
of the disclaimed property; must identify the property, or interest in property that is being
disclaimed; and

As a result of the disclaimer, the interest must pass without any
direction on the part of the person making the disclaimer.
New York Law. A disclaimer is permitted under New York law pursuant to
EPTL §2-1.11 (in New York, disclaimers are called renunciations). The New York
statute includes many of the same elements as §2518 of the Internal Revenue Code.
Drafting Techniques for Disclaimer Trusts:
b.
The testamentary document will provide that the residuary
estate (the balance of the estate after the payment of all debts and administration expenses,
and any specific bequests) pass outright to the surviving spouse.
c.
The surviving spouse has the ability to “disclaim” all or a
portion of assets distributed to the spouse.
7
d.
The surviving spouse will disclaim an amount not greater
than the decedent’s available Federal applicable exclusion amount.
e.
The amount disclaimed by the surviving spouse is held in a
“Disclaimer Trust” for the surviving spouse’s benefit.
f.
The provisions of the Disclaimer Trust can be similar to
those of a By-Pass Trust. However, the surviving spouse cannot have any power to
appoint the assets of the Disclaimer Trust.
g.
Disclaimer Trusts provide maximum flexibility to the
surviving spouse, who can determine at the first spouse’s death how much to shield from
Federal and New York estate tax.
5.
QTIP Trusts. A QTIP Trust can be created under a Will or by
another testamentary document. Qualifying transfers between spouses are exempt form
Federal and State estate and gift tax through the use of the marital deduction. See IRC
§2056. Assets qualifying for the marital deduction may pass from the first spouse to the
surviving spouse outright or in a qualifying trust.
IRC §2056(b)(7) allows property which is held in trust for the surviving spouse,
rather than distributed to the surviving spouse outright, to qualify for the unlimited
marital deduction against the Federal estate tax.
For a trust to qualify as a QTIP Trust under IRC §2056(b)(7), the following
requirements must be met:

Property must “pass” from the deceased spouse to the surviving
spouse.

The surviving spouse must be entitled to all of the income from the
entire property interest (or a specific portion thereof) payable at least annually for life.

No power may be held by any person (including the surviving
spouse) to appoint any part of the property to any person other than the surviving spouse
during the surviving spouse’s life.

The Executor must elect that the interest be treated as Qualified
Terminable Interest Property (see below).
Under the Code, the surviving spouse must have a qualifying income interest for
life. There is no requirement for principal to be distributed to the surviving spouse.
The surviving spouse can require that the Trustee invest the property held in the
QTIP Trust in income producing assets.
The surviving spouse may have a limited power of appointment over the trust
assets.
8
The assets remaining in the QTIP Trust at the death of the surviving spouse are
included in the surviving spouse’s gross estate.
The QTIP election is made on a timely filed Federal Estate Tax Return (Form 706)
by the Executor or personal representative of the estate. The Executor or personal
representative may make a partial QTIP election. If no Federal Estate Tax Return is
required to be filed, the QTIP election may be made on a timely filed New York estate
tax return.
6.
Qualified Domestic Trusts. If a surviving spouse is not a citizen
of the United States, special rules apply regarding the availability of the marital deduction.
See IRC Section 2056A. Assets many only be held in a QTIP Trust for a surviving
spouse who is not a citizen of the United States, and must also qualify as a Qualified
Domestic Trust (“QDOT”) under Code Section 2056A, in order to qualify for the marital
deduction.
In order to qualify as a QDOT, the following requirements must be met:
a.
At least one Trustee must be a United States citizen or a
United States bank.
i.
If the QDOT has assets equal to or less than
$2,000,000, no more than 35% of the value can be in real property outside the United
States, unless:

The Trustee is a United States bank;

The individual United States Trustee must
furnish a bond for 65% of the value of the QDOT assets at the Transferor's demise; or

The individual United States Trustee must
furnish an irrevocable letter of credit to the United States government for 65% of the
value.
ii.
If the QDOT holds more than $2,000,000:

The Trustee must be a United States bank;

The individual United States Trustee must
furnish a bond for 65% of the value of the QDOT assets at the Transferor’s demise; or

The individual United States Trustee must
furnish an irrevocable letter of credit to the United States government for 65% of the
value of the trust.
b.
The Executor of the decedent’s estate must make an
irrevocable QDOT election to qualify the marital deduction on the decedent’s timely filed
Federal Estate Tax Return (Form 706).
9
7.
Irrevocable Life Insurance Trusts.
An Irrevocable Life
Insurance Trust (“ILIT”) is an inter vivos trust a client (the Grantor) will create to remove
life insurance from the Grantor’s taxable estate. Any insurance policies on the Grantor’s
life which are obtained directly by the Trustee of the ILIT will not be included in the
Grantor’s taxable estate. Any insurance on the Grantor’s life which is transferred to the
ILIT will be excluded from the Grantor’s estate three years from the date of transfer.
The provisions of the ILIT can be similar to those of a By-Pass Trust, providing
for the surviving spouse and children.
8.
Qualified Personal Residence Trusts. A Qualified Personal
Residence Trust (“QPRT”) is an inter vivos trust a client (the Grantor) will create to
remove a primary residence and/or vacation home from the Grantor’s taxable estate. The
Grantor will transfer all or a percentage of the Grantor’s undivided interest in the
property to the QPRT. The trust will have a term of year. The Grantor is usually the
Trustee of the QPRT during the QPRT term. The Grantor has the right to occupy the
residence transferred to the QPRT during the term of the trust.
The gift tax value of the Grantor’s gift may be reduced by a non-marketability
discount if the residence is a fractional interest in a residence. The gift tax value of the
transfer to the QPRT is less than its true value because of the retention by the Grantor of
the right to occupy the property.
After the term of the trust ends, the property can be distributed to children or other
beneficiaries, outright or in continuing trusts. If the Grantor desires to occupy the
property after the term ends, the Grantor can rent the property from the beneficiaries for
fair rental value. Rental payments further reduce the Grantor’s estate.
The value of the property held in the QPRT is includible in the Grantor’s estate
should the Grantor die during the term of the QPRT. In such a case, there is a full
restoration of the applicable exclusion amount which had been applied to the initial
transfer (gift) to the QPRT.
9.
Grantor Retained Annuity Trusts. A Grantor Retained Annuity
Trust (“GRAT”) is an inter vivos trust a client (the Grantor) will create to remove asset
appreciation, usually from shares of stock, from the Grantor’s taxable estate. The assets
that are transferred to the GRAT should be appreciating assets. The Grantor will transfer
assets to the GRAT. The trust will have a term of years. During the term of the trust, the
Grantor will receive an annuity, at least annually. The Grantor is usually the Trustee of
the GRAT during the GRAT term.
The gift tax value of the transfer to the GRAT is less than its true value because of
the annuity payments to the Grantor.
After the term of the trust ends, the property can be distributed to children or other
beneficiaries, outright or in continuing trusts.
10
The value of the property held in the GRAT is includible in the Grantor’s estate
should the Grantor die during the term of the GRAT.
10.
Special Needs Trusts. If a client has a disabled child or other
beneficiary, it may be necessary to provide that child’s or beneficiary’s share of the
client’s estate be held in a Special Needs Trust. A Special Needs Trust may be created in
a separate document or under a Will. The Special Needs Trust is important because it
will allow the client to provide for his or her disabled child or other beneficiary without
risking disqualification from any governmental benefits the child or other beneficiary is
currently receiving or may receive in the future. The assets in a Special Needs Trust
cannot be used to support the disabled child or other beneficiary. Rather, it can only be
used to supplement the disabled child’s or other beneficiary’s lifestyle.
VI.
Special Considerations.
A.
Elective Share. New York law provides that the surviving spouse of a
New York domiciled decedent has a right to a share of the decedent’s estate. This is
called an elective share. See EPTL §5-1.1 et seq. For decedents dying after September 1,
1992, an elective share is an amount equal to the greater of (i) fifty thousand dollars or, if
the capital value of the net estate is less than fifty thousand dollars, such capital value, or
(ii) one-third of the net estate. In computing the net estate, debts, administration
expenses and reasonable funeral expenses are deducted. See EPTL §5-1.1-A.
The right to an elective share does not exist in cases where the surviving spouse
waived his or her rights in a document, such as a valid prenuptial or postnuptial
agreement, or under any other waiver of elective share rights document.
An attorney should be aware of this right when drafting a client’s documents if
the client is married and is not providing for his or her spouse, domestic partner or civil
union partner.
VII.
Other Estate Planning Techniques.
A.
Annual Exclusion Gifts. The annual exclusion provides an individual
with the opportunity to gift to any number of people the annual exclusion amount
(currently $13,000) each year without making a taxable gift.
The donee is not required to pay income taxes on the amount of the gift. See
I.R.C. §102. e
In addition to his or her own annual exclusion, an individual may use his or her
spouse’s annual exclusion with the spouse’s consent.
B.
School Tuition and Medical Expenses. Under Internal Revenue Code
§2503(e), a gift tax exclusion exists for gifts made on behalf of an individual for
educational or medical expenses provided that such payments are made directly to the
educational institution or the medical provider.
11
Overview of Civil Litigation
Ken Moltner
3
Faculty Biographies
KENNETH M. MOLTNER
Counsel
Bressler, Amery & Ross
Mr. Moltner is a seasoned paralegal instructor, educator, CLE lecturer and attorney with
extensive legal knowledge and experience representing businesses. He is presently
Chair of NYCLA’s Customized On-Site Programs for Paralegals, Legal Secretaries,
Summer and New Associates.
Mr. Moltner joined Bressler, Amery & Ross as counsel in the commercial litigation and
securities litigation and regulatory practice groups after practicing at LeBoeuf, Lamb,
Greene & MacRae and Shea & Gould. Mr. Moltner has represented real estate and
entertainment companies, banks and close corporations as well as Business
Improvement Districts. Mr. Moltner has also counseled clients on their agreements in
order to prevent litigation.
Mr. Moltner has been an adjunct professor at New York University’ SCPS in
Constitutional Law, and also an adjunct professor at Marymount Manhattan College. He
has been a guest lecturer discussing New York State practice, electronic discovery,
enforcement of judgments, and business development issues at Continuing Legal
Education seminars at the Association of the Bar of the City of New York and this
organization. He is also a Commercial Division Neutral who mediates disputes for the
Supreme Court, New York County, was formerly Chair and is currently a member of
Manhattan Community Board 8 on the Upper East Side of Manhattan.
MURRAY SCHWARTZ
mschwartz@schwartzandperry.com | Managing Partner | P: 212.889.6565
P R AC T I C E AR E AS
Employment Discrimination
Age Discrimination
Disability Discrimination
Gender Plus Discrimination
National Origin Discrimination
Pregnancy Discrimination
Sexual Orientation Discrimination
Sex or Gender Discrimination
Race Discrimination
Religious Discrimination
Employment Contracts
Severance Agreements
Hostile Work Environment
Mediation & Arbitration
Retaliation Claims
Sexual Harassment
Wrongful Termination
Reduction in Force
E D U C AT I O N
Master of Laws, New York
University, 1953
J.D., Brooklyn Law School, 1949
JURIS DICTIONS
AD M I T T E D T O P R AC T I C E
State of New York, 1949
U.S. District Court, Southern
District of New York, 1957
U.S. District Court, Eastern District
of New York, 1999
Murray Schwartz has been actively and continuously practicing law
since 1949. Throughout more than 60 years of practice, Mr. Schwartz
has been involved in several areas of law, but always with an
emphasis on litigation. More than 20 years ago, he commenced
directing and focusing the firm toward representing victims of
employment discrimination in all its forms, including other matters
relating to employment law. Mr. Schwartz’s dedication to this ideal has
resulted in a successful and expanding plaintiffs’ side employment law
practice in which his daughter, Davida S. Perry, joined him in 1991.
The firm has grown continuously since that time.
From the beginning, Mr. Schwartz has been involved in a number of
first impression cases which have had a lasting influence on
employment law in New York. The most notable are three landmark
sexual harassment cases - Bracker v. Cohen, Thoreson v. Penthouse
Magazine and Robert Guccione and McIntyre v. Manhattan Ford,
Lincoln Mercury.
In 1991, the City of New York enacted a Human Rights Law
authorizing a private cause of judicial action for victims of employment
discrimination. The New York City law was challenged in Bracker v.
Cohen, the first case brought under the law. Mr. Schwartz represented
the plaintiff in oral argument, during which the defendant sought to
nullify the law. When Mr. Schwartz argued the validity of the law, he
was requested by the City of New York to argue on its behalf, as well.
Bracker v. Cohen was a case of first impression which confirmed the
validity and constitutionality of the New York City Human Rights Law,
and as a result, a multitude of cases have been instituted under that
law. The city law permits punitive damages and attorneys’ fees and is
not subject to a cap in damages.
Mr. Schwartz is widely recognized as the lead trial and appellate
attorney who represented the plaintiff throughout the trial in the
Appellate Division, and thereafter in the Court of Appeals of New York,
in the landmark case of Thoreson v. Penthouse Magazine and Robert
Guccione. In Thoreson, the finding of sexual harassment was
sustained on appeal by both the Appellate Division and the Court of
Appeals, which held that a claim of sexual harassment can be
established based on the victim’s testimony alone.
U.S. Supreme Court, 1999
U.S. Court of Appeals, Second
Circuit, 2002
F AC U L T Y
New York County Lawyers’
Association
New York City Bar Association
Lawline.com
Mr. Schwartz also represented and served as the lead trial attorney for
the plaintiff in McIntyre v. Manhattan Ford, Lincoln Mercury, a sexual
harassment, retaliation and intentional infliction of emotional distress
suit. A Manhattan jury awarded the plaintiff $6.6 million, which, even
after being reduced by the trial court and then by the appellate court,
still stands as one of the highest awards for sexual harassment in the
entire nation. The case, after trial, continued through the appellate
process involving the Appellate Division and the Court of Appeals and
was concluded, with judgment paid, in 1999.
MURRAY SCHWARTZ
L E G AL M E M B E R S H I P S
New York State Trial Lawyers
Association (since 1949)
New York County Lawyers’
Association (since 1949)
Sustaining Member (since 1999)
American Association for Justice
(since 1966)
New York State Bar Association
(since 1976)
National Employment Lawyers
Association/ NELA NY (since
1996)
MEMBERSHIPS
Mensa (since 1983)
H O N O R S & AW AR D S
AV-Rating with Preeminence from
Martindale-Hubbell (since 1998)
New York Super Lawyer
(2007, 2008, 2009 & 2010)
Million Dollar Advocates Forum
(since 2008)
Lifetime Achievement Award
Lawline.com, 2009
New York County Lawyers’
Association - Certificate of
Appreciation for Support of
1999/2000 CLE Program (2000)
National Employment Lawyers
Association - “Courageous
Plaintiffs Who Fought Back,” 1999
New York County Lawyers’
Association - Sustaining Member
Certificate, 1999
New York State Trial Lawyers
Association (1953); Elected as
Associate Trial Advocate in
recognition of demonstrated ability
as a trial lawyer in the New York
courts
The McIntyre case continues to be cited and is significant because it
helped to document a standard by which to evaluate a fair recovery for
the humiliation a victim of sexual harassment can suffer. The decision
of the trial court in response to a motion made following the verdict,
quoting the Talmud, reminds us that “humiliation murders the soul.”
The plaintiff in McIntyre, as well as Mr. Schwartz and Davida S. Perry,
were celebrated at a ceremony for Courageous Plaintiffs conducted by
the New York Chapter of the National Employment Lawyers
Association.
The legislative history of the New York City Human Rights Law “clearly
contemplates that the New York City Human Rights Law be liberally
and independently construed with the aim of making it the most
progressive in the nation.” In 2005, The New York City Council
recognized that the New York City Human Rights Law was being
interpreted similarly to comparable state and federal statutes in certain
cases, despite the City Law’s clear mandate otherwise. In October
2005, the New York City Council enacted The Local Civil Rights
Restoration Act of 2005 which stated that the federal law “should
merely serve as a base for the New York City Human Rights Law, not
its ceiling.”
In June 2006, following a two-week trial in the United States District
Court for the Southern District of New York, a jury returned a verdict in
favor of a client of Schwartz & Perry LLP in the amount of $2.5 million,
of which $300,000 was an award for punitive damages. The verdict
was based upon a retaliation claim arising from the plaintiff’s allegation
of age discrimination. Since the action was brought under the New
York City Law and was removed to Federal court, the amount was not
subject to the Federal cap. After adding damages, interest and
attorneys’ fees, the amount of the final judgment paid totaled nearly $4
million. This case was tried by Murray Schwartz as the lead attorney.
Davida S. Perry and Brian Heller also actively participated, with Mr.
Schwartz, throughout the entire trial.
In addition to still actively practicing law, Mr. Schwartz frequently
serves as a consultant for attorneys in the field of employment law
across the country. He has written and lectured extensively and has
also appeared as a panelist at symposiums sponsored by the New
York County Lawyers’ Association, the Association of the Bar of the
City of New York, the New York State Bar Association, the National
Employment Lawyers Association (NELA), as well as the New York
Chapter of NELA, the Practising Law Institute, St. John’s University
and also Syracuse University College of Law.
Mr. Schwartz serves as a member of the Lawline.com faculty, which
provides Continuing Legal Education for attorneys in various fields of
law. Mr. Schwartz also frequently presents lectures which appear
online. In addition, Mr. Schwartz has also lectured at the Marino
Institute for Continuing Legal Education.
MURRAY SCHWARTZ
Mr. Schwartz has appeared on Fox TV and local news networks, as
well as Court TV and talk shows such as Larry King Live. Additionally,
Mr. Schwartz is frequently called upon by major New York newspapers
to comment on employment law issues. Additionally, Mr. Schwartz
served as a Pro Se attorney by designation of the United States
District Court for the Southern District of New York.
More than 10 years ago, under the direction of Mr. Schwartz, the firm
developed a Summer legal internship program initially at the request of
the Benjamin N. Cardozo School of Law. The initial programs were so
successful that the firm initiated on-going legal internship programs
throughout the academic year as well. In 2010, Schwartz & Perry LLP
trained over 30 students from nine law schools in the New York and
New Jersey areas during the Fall, Spring and Summer sessions. In
2011, the firm is continuing to expand its legal internship program,
which is already well underway.
Martindale-Hubbell AV Rating with Preeminence
Murray Schwartz is rated "AV" with preeminence by MartindaleHubbell, one of the oldest rating authorities worldwide. The "A"
represents the highest level of legal ability, and the "V" indicates "Very
High" adherence to the Professional Code of Responsibility in conduct,
ethics and diligence. According to Martindale.com, the AV rating is a
significant accomplishment - a testament to the fact that Mr.
Schwartz’s peers rank him at the highest level of professional
excellence. Mr. Schwartz has enjoyed this rating since 1998.
Martindale-Hubbell arrives at its attorney ratings as the result of
confidential peer review that is based on opinions of practicing lawyers
and members of the judiciary. The 140-year-old organization also has
an online database containing listings for over one million lawyers and
firms in the United States, Canada and 160 countries worldwide.
New York Super Lawyers
Mr. Schwartz was honored as a “Super Lawyer” in the New York,
Metro Edition of New York Magazine in 2007, 2008, 2009, and again
in 2010. Super Lawyers is a listing of outstanding lawyers from more
than 70 practice areas who have attained a high degree of peer
recognition and professional achievement. Super Lawyers is published
as a special supplement in leading newspapers and city and regional
magazines across the country. Super Lawyers magazine, featuring
articles about attorneys named to the Super Lawyers list, is distributed
to all attorneys in the state or region, the lead corporate counsel of
Russell 3000 companies and the ABA-approved law school libraries.
Million Dollar Advocates Forum
Murray Schwartz is a member of The Million Dollar Advocates Forum,
an association of top trial attorneys. Membership is limited to lawyers
who have won verdicts or settlements of one million dollars, or more.
Over 3,000 members throughout the U.S., Canada and England
belong to the Forum, and only about 200 of these lawyers are from the
state of New York. Less than 1% of U.S. lawyers are members of the
Million Dollar Advocates Forum. The Forum’s members share the
achievement of having obtained significant results in litigation.
MURRAY SCHWARTZ
Publications & Lectures
Lecturer - Association of the Bar of the City of New York (NYCBA)
Lecturer - New York County Lawyers’ Association (NYCLA)
Lecturer - New York State Bar Association (NYSBA)
Lecturer - National Employment Lawyers’ Association (NELA) and
NELA/NY
Lecturer - Practising Law Institute (PLI)
Lecturer - Marino Institute for Continuing Legal Education (MICLE)
Lecturer - Lawline.com (a licensed CLE provider)
January 18, 2011 – “An Introduction to Employment Law: The Most
Exciting Field in the Law!,” New York County Lawyers’ Association
Fall 2010 – “The Epidemic of Age Discrimination in the Workplace,”
Wingate Russotti Network Newsletter
July 20, 2010 – “An Introduction to Employment Law: The Most
Exciting Field in the Law!,” New York County Lawyers’ Association
February 22, 2010 – “Key Issues in Employment Discrimination Law,”
Benjamin N. Cardozo School of Law
January 14, 2010 – “Issues and Insights into the Field of Employment
Discrimination Law,” New York County Lawyers’ Association
July 22, 2009 - "How to Handle an Employment Law Case,"
Lawline.com
July 16, 2009 - "An Introduction to Employment Law: The Most
Exciting Field in the Law!," New York City Bar Association
July 10, 2009 - "An Introduction to the Field of Employment Law," New
York County Lawyers’ Association
March 25, 2009 - "Employment Discrimination: A Critical Look at Key
Issues from Both Sides," New York County Lawyers' Association
March 19, 2009 - "Sexual Orientation: Unique Issues in Diversity and
Inclusion," Human Resources Association of New York
December 6, 2008 - "Employment Discrimination in the Workplace:
How to Handle and Negotiate an Employment Discrimination Case,"
Marino Institute for Continuing Legal Education
MURRAY SCHWARTZ
December 5, 2008 - "How to Effectively Commence an Employment
Discrimination Claim," New York County Lawyers’ Association
November 13, 2008 - "The Irony of Age Discrimination in an Aging
Workforce," Human Resources Association of New York
October 6, 2008 - "The Great Employment Debate - Are Age
Discrimination Laws Necessary?" New York County Lawyers’
Association
August 12, 2008 - "Investigating Liability & Assessing Damages in
Employment Law Claims: Identifying Methods that Have Proven
Successful in Negotiating Such Claims," New York City Bar
Association
August 7, 2008 - "How to Effectively Commence an Employment
Discrimination Claim," New York County Lawyers’ Association
May 20, 2008 - "Employment Law: From the Initial Interview Through
the Negotiations," New York City Bar Association
May 1, 2008 - "How to Effectively Commence an Employment
Discrimination Claim," New York County Lawyers’ Association
April 5, 2008 - "An Introduction to Employment Law," Marino Institute
for Continuing Legal Education
November 28, 2007 - "How to Handle and Negotiate Your First
Employment Discrimination Case," New York City Bar Association
November 9, 2007 - "How to Handle and Negotiate Your First
Employment Discrimination Case," New York County Lawyers’
Association
November 7, 2007 - "Does the Free Market Discourage
Discrimination? Are Employment Discrimination Laws Effective and
Necessary?" Brooklyn Law School
October 27, 2007 - "No Regrets: How to Make Successful Choices
During the Case Selection Process and Significantly Related Matters,"
New York County Lawyers’ Association
October 19, 2007 - "Some Comments on Summation That May Prove
Helpful," NELA/NY Fall Conference
September 15, 2007 - "Getting the Most Out of Your Case," Marino
Institute for Continuing Legal Education
August 29, 2007 - "The Beginnings of Employment Law," Lawline.com
July 20, 2007 - "How to Handle and Negotiate Your First Employment
Discrimination Case," New York County Lawyers’ Association
MURRAY SCHWARTZ
February 15, 2007 - "Getting the Most Out of Your Case," Marino
Institute for Continuing Legal Education
February 12, 2007 - "Lunch with a Legend – Employment Law and
Litigation," Benjamin N. Cardozo School of Law: Labor and
Employment Society
December 10, 2006 - "Trial Strategies That Work," Marino Institute for
Continuing Legal Education
September 16, 2006 - "How to Handle and Negotiate Your First
Employment Discrimination Case," Lawline.com
September 6, 2006 - "Age Discrimination," Lawline.com
June 22-25, 2005 - "We the People: Reclaiming the Justice System,"
National Employment Lawyers Association Sixteenth Annual
Convention
March 11-12, 2005 - "Litigating Harassment Claims: Strategies for
Success -Counseling and Case Selection," National Employment
Lawyers Association Convention
June 2002 - "Sexual Harassment in the New Millennium," NELA,
Thirteenth Annual Convention
November 2, 2001 - "Trial Strategies That Could Work," NELA/NY,
Fall Conference
March 15-16, 2001 - "Wrongful Termination Claims: What Plaintiffs
and Defendants Have to Know - Claims for Damages to an
Employee's Reputation and Opportunities," Practising Law Institute
Conference
November 27, 2000 - "Interrogatories, Requests to Produce, Requests
to Admit - What You Really Need and What You Are Allowed To Do,"
Practising Law Institute Conference
March 21, 2000 - "Current Issues in Employment Law: Litigation and
Settlement of Employment Discrimination Claims," New York County
Lawyers' Association
March 9-10, 2000 - "Wrongful Termination Claims: What Plaintiffs and
Defendants Have to Know - Claims for Damages to an Employee's
Reputation and Opportunities," Practising Law Institute Conference
November 30, 1999 - "Interrogatories, Requests for Admissions and
Requests for Documents in Employment Discrimination Cases,"
Practising Law Institute Conference
November 30,1999 - "How to Handle Your First Employment
Discrimination Case," Practising Law Institute Conference
MURRAY SCHWARTZ
June 30-July 3, 1999 - "Effective Cross-Examination Techniques,"
NELA Tenth Annual Convention
June 11, 1999 - "Comments Regarding the Trial Judge and the
Difficult Adversary," New York State Trial Lawyers Association
Program
March 1-2, 1999 - "Wrongful Termination Claims: What Plaintiffs and
Defendants Have to Know - Claims for Damages to an Employee's
Reputation and Opportunities," Practising Law Institute Conference
December 1, 1998 - "Handling Your First Employment Discrimination
Case for the Plaintiff," Practising Law Institute
May 18-20, 1998 - "Trial Motions: Advantages and Considerations,"
Third Annual Employment Law Litigation Institute of the New York
State Bar Association Section on Labor and Employment Law
April 24, 1998 - "Counsel's Investigation and Retainer Agreements,"
NELA/NY Spring Conference
March 5-6, 1998 - "Wrongful Termination Claims: What Plaintiffs and
Defendants Have to Know - Claims for Damages to an Employee's
Reputation and Opportunities," Practising Law Institute Conference
May 16-17, 1997 - "Strategies for Settlement," Second Annual
Employment Law Litigation Institute of the New York State Bar
Association Section on Labor and Employment Law
June 1995 - "Sexual Harassment: Need It Be A Way of Life?" Marina
International Women’s Magazine
August 8, 1994 - "Binding Arbitration May Weaken Worker’s Rights,"
National Law Journal