and your client is grateful for that. That’s
the first piece. The second piece that’s
gratifying is if you’re able to affect real
change or clarification in the law, being
fortunate enough to have some cases that
have given clarity or broken new ground.
I’ve had a few of those over the years, so
I’ve been lucky in that regard.
Q: Do you have a most memorable case?
A: I was [recently] able to bring a case
before the Court of Appeals of New York,
which is the highest court in the state. In
most cases in the civil area, you have to ask
the court for permission to appeal and they
have to agree to take your case. Generally
speaking, those percentages of cases that
they take might be as low as 3 to 5 or 6
percent in any given year.
In this particular case [Matter of Spencer
v. Spencer], I was able to get the Court of
Appeals to not only take my case, but to
overturn a unanimous, mid-level appellate
court. I didn’t do the trial in this case. The
client came to me for a review process that’s
like an appeal, and I did that and we were
unsuccessful. We took another appeal to the
midlevel appellate court of the state and we
lost 5 to nothing. Then we made a motion to
the Court of Appeals for permission to appeal
our case and that appeal was granted. On
appeal, the decision went back in my client’s
favor by a unanimous court, 7 to nothing, in
our favor. It was both very memorable and, I
think, gratifying professionally. And the client
was happy, too.
Q: What was the case about?
A: I had a client who had been divorced in
Connecticut. And he still lived in Connecticut
and that’s very important in this legal analysis
under the statute. He always stayed in
Connecticut. Connecticut has child support
to age 18. In New York, it ends at age 21.
After the divorce, the mother moved from
Connecticut to New York with the children
and she sought to modify the Connecticut
order to get an age- 21 end date—in other
words, three more years of child support
for each child—and also get an application
of New York guidelines, which was higher
than what was given in the agreement that
was entered into in Connecticut. The lawyer
that tried the case argued that New York
didn’t have jurisdiction to do this because
what you’re essentially doing is changing the
Connecticut order from age 18 to 21. All the
courts up the line disagreed with that. They
said: Well, it really isn’t a new modification;
the Connecticut order expired at age 18, so
what we’re doing is really making a new order.
That expired order concept had started to
take root in New York state for four or five
years at that period of time. The ultimate
result in this case was that we got New York’s
application of that expired order concept
overturned, and the Court of Appeals said
that the trial courts are no longer to do that;
they are to follow the federal statute, which
defined what New York had been doing in
changing an age- 18 order from Connecticut
to an age- 21 New York order [as] modification.
So the father was successful in his appeal.
Q: What advice do you have for anyone
who’s interested in appellate law?
A: You have to be a very good writer, not only
in terms of your style of writing; obviously
use of proper grammar and word choice,
you have to be fundamentally good at that.
In addition to that, you have to be able to
write persuasively, use word choices that
are persuasive as opposed to bland or plain.
You have to make your writing interesting.
You have to be able to tell a story so that it
accurately presents the facts.
You also have to be able to think very
quickly when you’re at an appellate
argument because you can have, as I have
had over the years, cases that are very
involved and detailed that might have been
on appeal from a decision after an eight- or
nine-day trial where the record on appeal
before the court is four- or five-thousand
pages, and there might be six or seven legal
issues that you’re either bringing up to try to
change, or you’re trying to defend it if you’re
the one that’s not appealing. You have to be
able to somehow condense all the important
points in both your writing—so that it’s easy
for the court to read, and understandable—
and you also have to, at the oral argument, in
10 minutes or less, be able to give the court
everything it needs to support your position.
You also can’t be one of these people that
stands up there and reads a prepared speech
to the appellate court because they’re going
to start asking you questions and getting you
off your prepared script. You have to be able
to very quickly adapt to the situation, literally
within seconds. You might have to change
your whole game plan of how you thought
the argument was going to go because of a
question that you might have gotten from
one or two judges. You have to first, of course,
answer the question directly and then use
that question to move in the direction that
you’d like to see the court go in the case.
Q: You’re a town justice for Schodack and
were elected to your third term last year.
Tell me a little bit about that experience.
A: In New York, we have town and village
courts, which serve as the local criminal
court where anything from a traffic ticket
on up to the highest level felonies start in
the local criminal court. In other words,
we dispose of all of the traffic tickets. We
have jurisdiction over misdemeanors,
which means anything that’s punishable
by one-year-or-less incarceration. We
have jurisdiction to handle the entire
case, sentencing. On the felonies, which
is anything that’s more than a year of
incarceration as a penalty, those cases
all start in our court and we do some of
the preliminary procedures—setting bail,
holding preliminary hearings—we do those
things while they’re pending until a grand
jury takes the case and then once the
grand jury takes the case it goes to a higher
court. But those cases can often come back
down and be reduced to misdemeanors so
that we end up handling them anyway.
On the civil side, it’s a variety of small
claims, not unlike what people see on
television in a variety of shows such as The
People’s Court and others. Landlord-tenant
proceedings are brought in the local court.
There are building code violations and
smaller commercial claims.
Q: What is your favorite part about being
a justice?
A: It’s so different from what I do every
day at work, because it’s a totally different
area of law. It’s sort of that additional
intellectual stimulation in an area that I
hadn’t dealt with every day.
What I like doing the most in that job is
writing decisions on motions that attorneys
make in criminal cases, deciding initial issues,
whether evidence should be suppressed,
things on Fourth Amendment rights, the
right to counsel, probable cause. In the local
criminal court, you get a lot of Fourth, Fifth
and Sixth Amendment issues. It was those
types of things that were in these courses
that I was taking in college on the United
States Supreme Court. You learn a lot of
Bill of Rights things: Fourth Amendment,
search and seizure; Fifth Amendment, self
incrimination; Sixth Amendment, right to
counsel; in addition to all the free-speech
type things which we don’t really see in the
town and village courts. I think it brings me
full-circle, in a way, to what attracted me to
law in the first place.
