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New York Law to Russian Claw
by Kit R. Roane
Aug 15 2008

The idealism and ambitions of Georgia's embattled leader were shaped in Manhattan.
Mikheil Saakashvili


More than a decade before he became Georgia's president, Mikheil Saakashvili was just another struggling law student with big plans tooling around Manhattan on his bicycle.

"He was ambitious, idealistic, and I think he had something of the American messianic sense that you could use law to change the world," recalls professor Lori Damrosch, who taught Saakashvili in a Columbia law seminar entitled International Institutions in Transition.

"This was at a time of turmoil in the ex-Soviet republics, and he had a lot to say on those topics," she adds, noting that students at the law school were "imbued with this idealistic spirit" and that Saakashvili "absorbed these values."

With his country now bloodied after a clash with Russia and his leadership questioned, the overarching idealism of his New York student days would seem to have been finally shaken.

Critics have certainly come out of the woodwork, saying that the loss of Georgia's breakaway regions, particularly that of South Ossetia, would foment protest to Saakashvili's rule. Italy's foreign minister, Franco Frattini, has said that the war brought on by Saakashvili's futile and perhaps rash attempt to secure the areas "pushed Georgia further away not just from Europe, but also complicates the NATO council in December." And Michael Evans, defense editor for the Times of London, noted that Saakashvili's "military adventure had all the hallmarks of rushed planning and a finger-crossed strategy," adding that the Georgian president gave Vladimir Putin "the opportunity he was waiting for to stamp his authority over Georgia and at the same time to cock a snoot at the West."

So far, Saakashvili has not wavered. He continues to hammer out a drumbeat of statements aimed at presenting himself as the biblical David, Russia as the corrupt Goliath intent upon creating a new iron curtain, and Georgia as the thin edge of the wedge.

"Let us be frank: This conflict is about the future of freedom in Europe," he wrote in the Wall Street Journal.

He has failed to persuade the West to send in reinforcements. With Russia still marching into new cities, the best news that Georgia could muster so far this week was word that its Olympic beach volleyball team had trounced the Russians in two out of three rounds.

Saakashvili would have likely modeled for a more robust response from the West. Well studied in the intricate dance among nations, he wrote a seminar paper on humanitarian intervention, which focused on ethnic conflicts in the former Soviet satellite states.

Unlike many other 1994 graduates of Columbia Law School, Saakashvili put his training to the test on the world stage.

By 1996, Saakashvili, who idolizes John F. Kennedy and leans politically toward John McCain, had already jettisoned a doctoral thesis at George Washington University Law School, quit the high-power law firm of Patterson Belknap and won a parliamentary seat in the Republic of Georgia (population 4.4 million).

This was the first of many leaps that would, in a short and bloodless coup, move Saakashvili into the presidency, an ascendancy that Saakashvili has said was helped along by the knowledge that he acquired while a law student in the United States.

"He clearly knew what he wanted when he was at Columbia, and he chose his courses very carefully and in a conscious way that didn't follow the usual diet, which is corporate and securities law," says professor George Bermann, who taught Saakashvili courses in European Union law, and transnational litigation and arbitration.

Despite Georgia's setbacks, no one should count Saakashvili out just yet. He has spent the last decade and a half proving that idealism in the most adept hands can be a strong bulwark against even the strongest and most depressing reality.

The man known as Misha abandoned a life of Knicks games and opera nights to turn around the poor, corrupt, and complicated country from which he sprang. He also became a leading light among the wave of twentysomething rat-packers who had washed onto our shores hungry for American-style democracy, then eagerly trekked back home to plant this new-found seed in the dark soil left vacant following the Soviet Union's collapse.

"He is a western person, and a very dedicated person, very dedicated to human rights," notes professor Dinah Shelton, of George Washington University's Law School, adding that when Saakashvili failed to finish his dissertation, his professors joked that his tackling Georgia's weighty issues as its president was no excuse.

Little seemed to stop Saakashvili once back in Georgia. When his mentor, then-president Eduard Shevardnadze, balked at Saakashvili's attempts to tackle official corruption, Saakashvili quit the government and went to work forming an opposition party.

After winning election to the head of the Tbilisi city council, he then used his populist appeal to claw his way back into power during the Rose Revolution of 2003. Again, he was unyielding, breaking with other opposition leaders who proposed talks with Sheverdnadze and sought a more measured approach. Instead Saakashvili and his supporters stormed the parliament chamber where Shevardnadze was holed up, then reportedly chased him from the building under the threat of flowers instead of guns.

Answering critics, Saakashvili told reporters at the time that his style was the type that "mobilizes people here," noting later that "Georgia needs a new way" and that every moment Shevardnadze remained in power meant "losing time."

Despite criticism of some of Saakashvili's methods—and despite evidence that a frustrated Saakashvili turned to a more thuggish approach himself during crackdowns on demonstrators last fall—his many successes spring from the same tight-rope approach.

He has overhauled the police, brought about important economic reforms, increased average salaries, and improved the country's power supply, notes Alexandra Stiglmayer, a senior Brussels-based policy analyst with the independent think tank European Stability Initiative.

"Saakashvili may be a complex personality and he has certainly made mistakes. But he has given the civil society breathing space," she says. "Compared with its neighbors in the region, such as the Northern Caucasus region in Russia, but also Armenia, Azerbaijan, and eastern Turkey, Georgia is more liberal, more open, and more committed to the rule of law."

The question now is whether he can stay in power. His old professors certainly hope their favored son will weather this latest storm.

Professor Damrosch recalls happening upon Saakashvili riding his bicycle when she was visiting Washington at the same time he was pursuing his doctoral studies there. She waved and Saakashvili sailed through several lanes of traffic just to chat.

"The image of Misha on a bicycle—whether in Washington, New York, or the more mountainous terrain of Georgia —conveys something of his energetic spirit," says Damrosch. "I can't think of anything that would slow him down."





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Time's Running Out on the Billable Hour
by Kit R. Roane
July 13 2008

"The billable hour stinks" as a way to buy legal services, one lawyer says. Finally, there is some movement toward alternatives.


William Nelson Cromwell famously earned a million dollars for his work in selling the Panama Canal a century ago. His fee, the New York Times noted in 1908, was "the like of which can hardly be paralleled in the history of the legal profession."

News of some recent paydays probably would have Cromwell, whose legacy lives on in the top-tier Wall Street firm Sullivan & Cromwell, wishing he could get back to work.

Delphi, an auto parts maker, racked up nearly $100 million in legal, accounting, and consulting fees in the first eight months of its bankruptcy proceeding in 2006. Lawyers who succeeded in an Iowa antitrust case against Microsoft were awarded $75 million in fees and costs last August. And this March, the law firm representing one segment of investors suing financial institutions tied to the Enron bankruptcy requested a whopping $688 million in fees.

With some lawyers now charging upwards of $1,000 an hour, and phalanxes of partners and associates being marshaled to fight increasingly complex and time-consuming (read: billable-hour-generating) battles, one can rightly wonder whether the first billion-dollar legal bill could be far behind.

The fear of just such a billing Armageddon has caused some of the nation's largest corporations to push back. Some are instituting a moratorium on fee hikes, others are insisting that fees actually be slashed, and many are installing new billing software to track and cap expenses. A few are even prodding law firms to come up with wholly new compensation arrangements that better align their interests with those of their corporate clients.

Last November, the news that some new law firm associates were being paid $160,000 a year spurred Wal-Mart to action. The company responded with a "moratorium on across-the-board rate increases" for all of its outside firms and demanded that they provide the hourly rates charged for every associate working on a Wal-Mart account going back to "the class of 2004."

That same year, Tyco International named a single firm, Eversheds, as its preferred outside counsel in Europe, the Middle East, and Africa, pulling about $20 million in legal work from more than 200 other firms. Eversheds got the work by discounting fees and agreeing to let Tyco have final approval over cost estimates.

Companies like Pfizer are making strides in reducing legal costs by making law firms compete head to head for business, with cost as a major factor. Others, including AOL, Barclays, and General Motors, have embraced electronic billing systems that flag legal expenses over set amounts.

These firms "can't enter a cost that doesn't fit in the box you create," says Susan Hackett, senior vice president and general counsel of the Association of Corporate Counsel, whose 24,000 members are among the major employers of outside law firms.

"It can be something as simple as saying no plane travel in excess of $500," Hackett adds. "If the lawyer tries to enter a ticket for $650, it will bounce, and the onus is then on the firm to say why the expense was necessary."

This September, Hackett's association plans to begin a more organized assault on high legal fees. The multiyear effort will result in a set of tools that can help even small corporations get a handle on legal costs.

These include best-practice guidelines to help model and price specific legal services such as certain stages of litigation, and an online network where corporate counsels and law firms from across the country can easily obtain references and compare fee information in specific geographic areas.

"The billable hour stinks, but it is the symptom of the underlying problem," Hackett says, noting that most corporate law departments are too small to easily monitor what their outside counsel is doing.

Combined with that reality, "law firms are not run on the concept of how quickly and efficiently they can do work for their client," Hackett adds. "They are run on how much they can charge their client before they are fired. It's the throw-up point."

Getting a handle on outside legal costs certainly makes sense for corporations. It can be a boon to the bottom line. Dupont, for instance, pioneered a program to partner with its law firms in the 1990s after mass tort litigation left it swimming in outside legal fees.

"We had a docket in excess of 4,000 cases and we were spending $140 million a year in 1994 dollars," notes Thomas Sager, Dupont's general counsel and senior vice president of litigation.

The company has since whittled down the number of law firms it uses to 43 from 350, has traded a promise of long-term relationships for a willingness by the firms to offer alternative fees and discounted rates, and has produced a host of systems to better track and monitor the legal work that results.

Sager said Dupont's cost savings is between $15 million and $20 million a year, or about 18 percent of the company's total expenditures on outside counsel.

Felice Wagner, who heads Sugarcrest Development Group, a law firm consultancy, notes that other companies have had similar success. It's no coincidence, she adds, that the industry spending the least on counsel is the group that most aggressively tracks its outside firms. The insurance industry pays, on average, just $294,098 per lawyer per year. “They have been very successful at putting the screws into their law firms,” says Wagner.

Whether or not these corporations will soon force white-shoe law firms into a new way of thinking is another story. "The Sullivan & Cromwells of the world like the status quo and don't see the need to move toward alternative fees," Sager says.

It's easy to see why. The 2007 Law Firm Economics Survey from Lexis Nexis found that the operating profit margins at top firms climbed to 41 percent in 2007 from 35 percent a year earlier, while a separate recent survey by the National Law Journal found billing rates locked in a long-term climb, gaining an average of 7.7 percent in 2007.

The bill to clients is considerable. The median amount that large corporations pay annually for each outside lawyer working for them was $616,519 in 2007, according to the 2007 Altman Weil Law Department Metrics Benchmarking Survey. Chemicals manufacturers topped the list, reporting that average outside legal expenses reached more than $1.1 million per lawyer. That is music to the ears of law firms on the receiving end.

Still, some firms see the growing discontent as an opening to take a new tack. Jay Shepherd, who runs the employment-litigation firm Shepherd Law Group in Boston, jettisoned the billable hour system in favor of flat rates for all client matters at his firm.

Other firms have taken similarly drastic steps, though the number can be counted on two hands—among them, Bartlit Beck Herman Palenchar & Scott and the Valorem Law Group, both in Chicago, Exemplar Law Group, in Boston, Summit Law Group, in Seattle, and Leader & Berkon, in New York.

However, Shepherd's success in gaining business is noteworthy. His firm's year-over-year revenue more than doubled in 2007, after increasing 5 to 10 percent per year between 2004 and 2006. Among his new clients is Adobe Systems.

Although the vast majority of the software company's outside legal work is still done on the billable-hour system, Ronald Friedman, associate general counsel and head of litigation at Adobe, says he's been pleased by Shepherd's flat-fee arrangement, noting that it "allows you to know up front what your costs are going to be."

He hints that, unless billing rates begin to fall, more such deals could be in the offing.

"I am always interested in exploring alternative billing arrangements," he says. But "the more the hourly rates continue to increase to the point of being difficult to justify, the more I am going to be interested in exploring other alternatives where the interests of the client and the lawyer are better aligned."

If enough companies like Adobe make that call, the Sullivan & Cromwells of the world may have to begin listening.



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The Big Sleazy
by Kit R. Roane Jun 9 2008

Amid a wave of corruption cases, a lawyer's accusations get attention.


Legal documents are rarely page-turners, but an indicted lawyer in New Orleans may have just put out one of the most gripping legal thrillers in years.

James Perdigao, who is battling a 59-count criminal indictment that accuses him of stealing about $30 million from his former firm, has come out swinging with a 73-page civil-racketeering complaint that carries some explosive accusations of its own.

He paints his former firm as something akin to John Grisham's fictional Bendini Lambert & Locke and himself as the cocky yet naive Mitch McDeere, scapegoated by a corrupt system that protects its own.

"The snitch usually ends up in the ditch," Perdigao contends that one partner warned him, adding that shortly after that threat, he was "attacked by gunfire at his residence."

While Perdigao does not go so far as to claim outright that his law firm, Adams & Reese, tried to have him killed—that might be too "Grisham" to be believed—he does make plenty of other bold accusations. The boldest: that partners at the firm turned a blind eye when one well-heeled client in a jam schemed to bribe a U.S. attorney.

It should be noted that Perdigao's story lacks corroboration for his bold claims. He will have to produce some evidence soon enough if he wants to keep a judge from tossing out the complaint.

Adams & Reese has called the suit "the latest episode in Perdigao's continuing fantasy of blaming the government and our firm for his wrongdoing and lashing out at those who are holding him accountable for his actions."

But this is New Orleans, where outlandish yarns of greed and corruption can have the ring of truth. Indeed, more than 170 people have been indicted for public corruption in the Big Easy over the last six years.

As James Bernazzani, the special agent in charge of the F.B.I.'s New Orleans field office, has noted on more than one occasion, corrupt public officials in Louisiana tend to take things an additional step or two. They don't just skim the cream, he likes to say. They also "steal the milk, hijack the bottles, and look for the cow."

Controversy has also swirled around several of the people who figure prominently in Perdigao's complaint, helping to give it stronger legs than it might otherwise have had. Federal officials have been investigating contracts awarded during the term of former New Orleans Mayor Marc Morial, who served of counsel with Adams & Reese for about a year after leaving office. Although Morial has never been charged with a crime, his uncle, his aunt, and a close associate have each pled guilty to various charges of city corruption. Adams & Reese has reportedly been issued two subpoenas seeking information about Morial's work at the firm.

The former U.S. attorney at the center of Perdigao's bribery allegation is Eddie Jordan, who last November resigned as Orleans Parish District Attorney after a federal judge ordered the district attorney's office to pay a $3.7 million judgment related to accusations that Jordan, who is black, fired dozens of white employees after being elected to office in 2003. Around the same time, Jordan admitted that he gave shelter to a man wanted in connection with both an armed robbery and a shooting of a police officer. Jordan has said he didn't know that the suspect—who was one of his girlfriend's friends—was on the lam.

Also an integral player in Perdigao's narrative is Representative William Jefferson, Democrat from New Orleans, who gained fame during Hurricane Katrina for commandeering a National Guard unit to ferry him to his home to retrieve personal items. Jefferson is currently facing federal corruption charges over allegations that he solicited bribes in the Congressional dining room. An F.B.I. raid of his home turned up $90,000 stashed in his freezer. Jefferson has pled not guilty.

Against this backdrop, it doesn't sound so ludicrous when Perdigao claims that he watched a client—who was a key witness in the federal bribery trial of former Louisiana governor Edwin Edwards—"fill a bag with cash that had been hidden under some tiles next to the bathtub" in the man's penthouse, with plans to drop this money under some steps at Jefferson's humble abode.

Or that, rather than agreeing to call in the feds, a law partner might have encouraged Perdigao to go on the next bag drop instead, stating that he would then "have a multimillion-dollar client for life."

At least one other person besides Perdigao must sure hope it's true, with Edwards' appeal of his 2000 conviction in the riverboat-gambling extortion case generally resting on a belief that there is something shady about the deal prosecutors gave this witness.

Implicit in the bribery accusations was Perdigao's own hope that the U.S. attorney's Office of the Eastern District of Louisiana would be forced to recuse itself from trying the criminal case now staring him down.

But that now will not happen, with the judge in the case ruling on Friday against Perdigao's motion.

"This was a clear and unambiguous ruling, so the interruption in the criminal case is over, says U.S. Attorney Jim Letten, who in filings to the court characterized Perdigao's claims as "unsupported vitriol," "perfidy," "vacillations," "lies," and "hearsay malice" unfairly leveled against Perdigao's accusers and victims.

Letten notes in these filings that "in an abundance of caution" Perdigao's allegations against his office were "promptly referred" to an independent prosecutor from the Justice Department, adding with obvious annoyance that "Perdigao's mendacity with the facts is as disprovable as his mendacity with the law."

Unfortunately, these days the people of New Orleans may rightfully fear there is a bit of mendacity in even the truest-sounding statement, and a little truth in every lie.

As Brick says, responding to the heavy hang of lies that define Tennessee William's own bayou tale, Cat on a Hot Tin Roof, "You said it yourself, Big Daddy, mendacity is a system we live in."





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Peeking Under the Table
by Kit R. Roane Jun 6 2008

The feds are cracking down on overseas corruption, and Hollywood is starting to worry.


For federal prosecutors, the Foreign Corrupt Practices Act has become a sleeper hit—but no Hollywood types will be celebrating when this once-dormant bribery statute makes a September Tinseltown debut.

The F.C.P.A., after decades of being ignored, is ensnaring an increasing array of companies, from energy exploration and telecom concerns to medical-device makers and freight forwarders, for alleged kickbacks to government officials around the globe. Now, even Hollywood is in prosecutors' crosshairs for bribery along the film-festival circuit—a case that could mark the beginning of the industry's own serious Syriana-style woes.

The Department of Justice has accused critically acclaimed Rescue Dawn producer Gerald Green and his wife Patricia of attempting to pay more than $900,000 in bribes to a high-level Thai government official in the hope of gaining the concession to run an international film festival in Bangkok. The Greens have plead not guilty on all charges.

While the D.O.J. declined to comment on the case, its deterrent effect is not lost on Mark Mendelsohn, deputy chief of the agency's fraud section. "As we bring cases in industries that were not previously a focus of F.C.P.A. enforcement actions, that does have the effect of causing a lot of players in that industry to wake up and pay attention," he says.

The case has already caused fallout in Thailand, which has begun its own investigation into the bribery allegation. The Thai official believed to be at the center of the controversy, Juthamas Siriwan, has discontinued her run for a seat in parliament and publicly threatened to sue the Justice Department for involving her in what she has called a groundless accusation.

For Hollywood, the concern is that recent F.C.P.A. cases in other industries have tended to ensnare other companies using, for instance, the same government go-betweens or the same methods to curry favor abroad. Whether this will be the case for the film industry remains to be seen, but the proximity of the film-festival bribery case comes uncomfortably soon after two other unwelcome revelations.

The trial of celebrity private investigator Anthony Pellicano recently uncovered bribery of government officials to further the aims of some Hollywood power brokers. Also, last year, the Los Angeles Times unearthed budget documents from the 2005 mega-flop Sahara that list $237,386 for courtesy payments, gratuities and local bribes while filming in Morocco.

Nobody involved with Sahara has been charged with a F.C.P.A. violation. And as long as they are correctly accounted for and not part of "a slush fund," the act exempts certain small payments to expedite routine services, says Danforth Newcomb, a well-known F.C.P.A. expert with the law firm of Shearman & Sterling. The question that comes up, the lawyer says, is "when does it stop being a facilitating payment, which implies a one-off situation, and instead becomes a method of doing business. That question applies equally to the film industry."

Bill Lindstrom, C.E.O. of the Association of Film Commissioners International, says production companies have often paid to obtain "extra services," to assure that what is promised by officials is actually provided, and to "prevent something bad from happening on set."

But last month his organization grew concerned enough about these payments that it decided to offer a new seminar at its Locations Trade Show. The title: "Greasing Palms on Location: What You Need to Know About the Foreign Corrupt Practices Act."

Hollywood is right to pay attention, as both the aggressiveness of prosecutors and the cost of violations have been rising.

According to data compiled by Shearman & Sterling, there are currently investigations involving more than 80 companies; in 2003, there were fewer than 10. Meanwhile, last year the oil-services company Baker Hughes paid a record $44 million to settle claims that it bribed officials in Kazakhstan, Nigeria, Angola, Indonesia, Russia and Uzbekistan to obtain oil- and gas-related contracts.

Also, prosecutors hoping to focus corporate managers' attention on the problem have increasingly gone after them individually. For instance, last October, David Kay and Douglas Murphy, two former executives with American Rice, received 37- and 63-month sentences, respectively, for their roles in a scheme to avoid $1.5 million in Haitian import duties and taxes.

Corruption is a massive problem, with the World Bank estimating that more than $1 trillion in governmental bribes are paid every year worldwide.

Still, not too long ago companies had little to fear if they used bribes to gain concessions. Enacted in 1977, following government studies that pointed to widespread corporate bribery, the F.C.P.A. was seldom enforced. And even when it was, prosecutors had an uphill battle gaining evidence, because many other countries turned a blind eye. Until 1999, foreign bribes were tax-deductible in both Germany and France, notes Fred Miller, co-leader of global F.C.P.A. investigations and forensic services at PricewaterhouseCoopers, adding "for a long time the U.S. rule was the only game in town."

But this is no longer the case. Domestically, the Department of Justice and the S.E.C. have made F.C.P.A. enforcement a high priority. For instance, over the last year and a half, the D.O.J. has repurposed three prosecutor slots to handle only F.C.P.A. investigations, while the F.B.I. has created eight dedicated F.C.P.A. agent positions in its Washington field office. Before, they had non

e.

One symbol of greater international cooperation took place last November in Rome at the 10th anniversary of the Organization of Economic Co-operation and Development's signing of antibribery statutes. For the first time, prosecutors from the signatory countries, about 70 law-enforcement officials in all, came together to share their experiences and discuss their cases. The group will now meet once a year.

All of this greater law-enforcement focus on corruption has come as companies are uncovering more of their own F.C.P.A. violations—often revealed due to the greater financial controls required by the Sarbanes-Oxley Act or searched for during the scrubbing that takes place when there is a merger or acquisition. Federal officials have helped encourage self-reporting of these violations by giving companies steep reductions in fines for cooperation.

There is no indication that Hollywood executives will soon be banging down prosecutors' doors. But another F.C.P.A. trend—that of irritated competitors spilling allegations to prosecutors—may give some in the industry pause. Either way, Miller says filmmaking is just the type of business that might end up with F.C.P.A. issues to atone for.

"If you think about the film industry, they go on location and don't have a lot of time," he says. "If you want to shut down traffic in a town, how does that happen? Could the industry be subject to these bribery rules and might they run into some issues? You bet."




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The Rise of the Postnup
by Kit R. Roane Aug 27 2007

Why more married couples are trying to cut deals.


"Till death do us part" lost its cachet long ago for many Americans. Divorce is commonplace. And the rise of the prenuptual agreement has already clouded the bliss of more than one wedding day. But after the exchange of vows, most married couples probably do not expect to endure a new set of negotiations over money if they should untie the knot.

No more.

What the prenup did for the soon-to-be-wed, the postnup now promises for those already ensconced in the marital slog. Like a prenup, a postnuptial agreement is a contract between two spouses that spells out each partner’s financial claims in the event of a divorce. So while marriage has been said to be a series of compromises, a postnuptial agreement demands that some of those compromises be written in precise, legal language.


“It’s the last bite at the apple, and the more people hear about them, the more value they see,” says Raoul Felder, a New York divorce lawyer who has represented Rudy Giuliani, among others. He calls the postnup a “wonderful tool” against financial exploitation and personal intrusion.

The only problem? “You need two people to sign onto it,” he says.

Unlike those seeking a prenup, the spouse who wants a postnup has little leverage in forcing the issue. After all, they’re already married: It’s too late to threaten not to show up at the wedding.

Still, many couples are agreeing to rewrite the rules of who gets what, either in order to keep things civil, to gain peace of mind, or to buy a little time.

And in a surprising number of cases, it’s not a spouse who’s pushing for a postnuptial agreement; it’s the spouse’s employer.

There have been real estate developers who wanted to give trusted employees a small portion of a deal but also wanted the employees’ spouses to sign postnups first, says Eleanor Alter, a lawyer who has represented Robert De Niro, Christie Brinkley, and Mia Farrow.

“I did this for about 20 employees on one particular asset,” Alter says, explaining that the developer did not want to have to deal with the time, expense, and potential public exposure of discovery if one of these new partners went through a divorce. The developer also did not relish ending up with a bunch of spouses as part owners of the asset.

Hedge funds have also expressed similar concerns about their new partners, says Bernard Clair, divorce lawyer to such socialites as Jocelyne Wildenstein. He says that the managing partner of one hedge fund told a client that he had to have his wife sign a postnup before he could become a partner.

“That was the price of admission,” Clair says.

“Hedge funds are particularly sensitive to this because nobody can get inside [their finances] except divorce lawyers. Even the [Securities and Exchange Commission] needs to promulgate regulations to get into them.”

Sudden wealth—whether from working in hedge funds or elsewhere—can also trigger the need for a postnup.

“Even with declines in the divorce rate, people know they still stand a pretty good chance of getting divorced,” says Stephanie Coontz, a professor of history and family studies at Evergreen State College in Olympia, Washington. “And there is a higher divorce rate among people who have experienced a high fluctuation in wealth, including a good fluctuation. It leads to this sense of disorientation, this idea that I’m going to grab my pile while I’ve got it.”

Nobody knows how many postnuptial agreements have been signed, but a recent poll by the American Academy of Matrimonial Lawyers, a trade group, found that 49 percent of its members had seen an increase in postnups over the last five years. And Felder, whose firm does only matrimonial work, says his nine lawyers have worked on more than 100 postnups so far this year.



“That’s out the door compared to 2005,” Felder says, estimating that the number of postnups done at his firm has increased by 10 to 15 percent a year over the last two decades or so. “It’s becoming a major part of a divorce lawyer’s business.”

Lawyers and sociologists point to several reasons for the increased interest in these contracts, which try to wall off a specific portion of wealth from the marital pie. One of the things that got the ball rolling was the divorce of Gary Wendt, who was the chief executive of G.E. Capital at the time.

Lorna Wendt, a stay-at-home mother, sought half of her husband’s assets, contending that she was essentially his business partner, having supported his career over the years. In 1997, she was awarded about $20 million, or nearly half her husband’s hard assets.

The willingness of the Connecticut court to delve into how much Gary had made during the marriage and to designate such a large portion of it as marital property was a watershed moment, given that, prior to the Wendt case, the courts had generally sought to calculate how much a stay-at-home spouse needed for support, not whether that spouse was entitled to a large share of the couple’s total wealth.

“That was a wake-up call to a lot of people who had accumulated a great deal of wealth since marrying,” says Evergreen State College’s Coontz.

Some seeking postnups are just trying to protect assets for children from a previous marriage. But many of those queuing up at their lawyer’s offices are already nine-tenths of the way to divorce and just don’t want to pull the trigger; they see the postnup as a way to take some thorny issues off the table. Others are laying the groundwork for divorce and want to tie up what could be some messy ends before popping the news. Lawyers say that spouses who are running family businesses or who are involved in partnerships may worry about losing control of their assets or about a forensic accountant leafing through their books.

Whether postnups are good news for modern relationships is another question. They can’t deal with important issues such as child custody and child support payments. And not all states give postnups the same weight, with lawyers saying they tend to hold up better in New York courts than in Connecticut or New Jersey courts, for example. Also, the agreements can often heighten the very concerns they are supposed to take off the table.

The postnups that seem to work best tend to be those that address the concerns of women who stay home to raise a family. The spouse who sacrifices a career to stay at home with children or quits her job to move with a spouse, can benefit from a postnup, because the agreement is protecting one spouse who is giving something up for the other.

But Alter says these cases are rare, adding that she’d rather steer clear of doing most prenups or postnups, “because it is so hard not to make the relationship worse.” Asked what she’d prefer, Alter responds, “I’d rather do a divorce.”




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U.S. News & World Report

January 8, 2001

Putting Terror Inc. on trial in New York

BYLINE: By Kit R. Roane; David E. Kaplan; Chitra Ragavan

SECTION: WORLD REPORT; Vol. 130 , No. 1; Pg. 25

LENGTH: 1156 words

HIGHLIGHT: The case against bin Laden's alleged followers

Ali Mohamed is a man of many faces: Egyptian intelligence agent, U.S. Army paratrooper, FBI informant, aide to accused terrorist mastermind Osama bin Laden. Before bombs shattered U.S. embassies in Kenya and Tanzania, Mohamed says, he scouted possible targets and personally brought bin Laden photos of Nairobi sites. "Bin Laden looked at the picture of the American Embassy," he claims, "and pointed to where a truck could go as a suicide bomber."
Mohamed, 48, is now poised to play a new role--as the Justice Department's star witness in the long-awaited trial of bin Laden's alleged followers starting this week in New York City. A sweeping 319-count indictment charges bin Laden and 20 others with a terrorist crime spree dating back to 1991. Among the charges: bombings, perjury, and conspiracy to murder Americans around the globe. The attacks include not only those on the U.S. embassies in 1998--which left over 220 dead and 5,000 injured--but also on U.S. troops in Somalia and Saudi Arabia. Although bin Laden remains at large (with a $ 5 million U.S. reward on his head), five of those indicted are now in U.S. custody--as is Mohamed, who pleaded guilty in October.
Infidels. October's suicide bombing of the USS Cole--tied by investigators to bin Laden's network--has added fresh urgency to the government's efforts to thwart the Saudi exile, now hiding in the badlands of Afghanistan. Led by Mohamed's likely testimony, the trial promises an unprecedented look at America's most wanted terrorist and at al-Qaeda, the fanatic organization that he guides. The indictment imparts an image of a paranoid, virulently anti-American network determined to purge Muslim lands of "infidels." To achieve this, bin Laden's men strove to obtain chemical and even nuclear weapons, according to prosecutors.
Proving a grand conspiracy may be difficult. Prosecuting international terrorists is often a delicate balance between law enforcement's need for evidence and the intelligence world's need to protect sources and methods. Through electronic eavesdropping, for example, U.S. officials say they quickly learned of bin Laden's involvement in the embassy blasts, but they are loath to introduce such sensitive records into court.
Holy war. Such concerns may explain the indictment's at-times tenuous links among the alleged terrorists. Prosecutors tie bin Laden to the conspiracy largely through his funding of al-Qaeda and his calls for holy war against the West. For some defendants, their work with al-Qaeda appears to be enough. For others, it is their work in his businesses in Sudan, from construction and agriculture to an investment house, which prosecutors call fronts for terror. Still others are tied to al-Qaeda's ruling council, where terrorist plots are said to be hatched.
With his guilty plea, Mohamed has now made the prosecution's job far easier. Under oath, Mohamed already has done more than tie bin Laden directly to the embassy bombings. He strongly hinted he could connect the dots to the five others in custody, who have all pleaded not guilty; four of them face trial January 3.
Two of the defendants, Mohamed Rashed Daoud al-Owali and Khalfan Khamis Mohamed, face the death penalty if convicted, as prosecutors have the strongest evidence tying them to the embassy attacks. Al-Owali, a Saudi Arabian, allegedly filmed a statement before the bombing celebrating his "martyrdom," and rode in the pickup carrying the Nairobi bomb; he was found later in a hospital with keys to the truck's padlock nearby. Prosecutors say Khalfan Mohamed, a Tanzanian, helped grind up TNT and load the truck used in the Dar es Salaam bombing. A third defendant, Saddiq Odeh, a Jordanian, is allegedly tied to TNT and detonators used in Tanzania.
A fourth man, Mamdouh Mahmud Salim, allegedly purchased the 1998 Toyota Dyna truck that carried the bomb in Nairobi. His case was recently severed from the others after he stabbed a prison guard in the eye. Investigators are hoping a fifth defendant, Wadih el-Hage, will follow Ali Mohamed's lead and cooperate. A tire store manager in Arlington, Texas, he acted, prosecutors contend, as a bag man and passport fixer while working as bin Laden's personal secretary.
Targets. Ali Mohamed's testimony, which will likely earn him a reduced sentence, may prove particularly damning to el-Hage. The former U.S. Army sergeant, a naturalized American citizen born in Egypt, claims he worked with el-Hage in Nairobi and that during a visit to the man's house, bin Laden's security chief told him to surveil American, British, French, and Israeli "targets" in Senegal.
Defense attorneys on the case know they're facing tough odds. Mohamed's guilty plea has thrown "a wrench" into their strategies, acknowledges one. For defendants facing the death penalty, their lawyers' primary focus is to stop them "from getting killed," adds another. If Ali Mohamed does indeed take the stand, his credibility will likely come under fire. The talkative terrorist has a record of shifting loyalties and admits to lying to investigators in the past.
El-Hage, a naturalized U.S. citizen, certainly seems to be feeling the pressure. Five days after Mohamed's testimony, he suddenly also attempted to plead guilty. The plea, offered without consulting with prosecutors, was thrown out because el-Hage told the judge he was acting not out of guilt but because he wanted to escape the humiliation of a trial. Should el-Hage decide to flip with prosecutorial blessing, his testimony could offer a trove of information. Court documents place the 40-year-old el-Hage within a rogues' gallery of terrorists. The Lebanese native is allegedly tied not only to the embassy bombs but to a string of criminal acts, including attempted arms sales to those later convicted in the 1990 murder of radical Rabbi Meir Kahane and the 1993 World Trade Center bombing.
Further revelations may come from Ali Mohamed, who is cooperating with the FBI. Terrorism experts already are pondering his assertion that through the mid-1990s, bin Laden's al-Qaeda maintained close ties to Hezbollah, the Iranian-backed militia, and to Iranian security forces. Al-Qaeda and its allies received explosives training at Hezbollah camps in Lebanon, Mohamed claimed, and received bombs "disguised to look like rocks" from the Iranians. The implications are troubling. "Iran is an untold story in this," argues Larry Johnson, the State Department's former deputy director of counterterrorism. "How many elements have they kept out of this indictment?"
Perhaps several. Ties to the USS Cole bombing may well emerge from trial testimony, says one top law enforcement official. And a further indictment in New York--this one under seal--names even more alleged bin Laden conspirators, U.S. News has learned. Clearly the trial will be but one act in an ongoing and altogether grim play.

N.J. LAW;
Former Jurors No Longer Wait to Be Summoned to Court

BYLINE: By KIT R. ROANE

SECTION: Section 13NJ; Page 6; Column 2; New Jersey Weekly Desk

LENGTH: 729 words

DATELINE: NEWARK

In September, Philip LaRocco walked into the Essex County Superior Court to become a juror. He left a volunteer.
"I walked in, saw these fliers and just became intrigued," said Mr. LaRocco, 49, an international energy consultant who is now devoting some of his spare time to monitoring the progress of children in foster care. "It touched a personal chord, reminded me of where I am from and what's important."
dr Mr. LaRocco is one of 200 people who signed on as volunteers with the Essex County court system in the last seven months after being enticed by information they received when they were called for jury duty.
Some find themselves mediating trespass, harassment and criminal mischief complaints, or monitoring visits between noncustodial parents and their children. Others have become counselors for juveniles on probation or sit on panels that offer recommendations to family court judges on better ways to deal with young offenders.
The Essex County courts began recruiting volunteers from their jury pool in August after Judge Alvin Weiss decided he needed to increase the volunteer network from the 400 or so already participating. A similar recruiting program has been operating in Ocean County's court system, which is much smaller, for the past 10 years.
"The number of volunteers jumped dramatically, and the reports we are now getting are showing them to be a success," said Judge Weiss, Essex's assigning judge, adding that the volunteers had been especially valuable in programs dealing with young people.
"They are helping to address the critical social and family problems that come into the court on a daily basis," he said. "Without these volunteers, these programs wouldn't exist."
Volunteers aren't simply parachuted into the court system. Before Mr. LaRocco began working as a court-appointed special advocate for children in foster care, he went through extensive interviews, as well as 32 hours of training over four Sundays. (In the past, many volunteers have been lawyers who were already familiar with the legal system.)
Besides learning the structure of the court system, Mr. LaRocco said he and his fellow volunteers were tutored by court personnel, judges and former volunteers on such matters as how to gauge a child's progress and a foster parent's suitability, and ways to handle sensitive parenting and cultural issues.
"The first thing we were told to do was make sure these kids were in a healthy setting and that they were being cared for; the second was to determine if there was a plan for their long-term well-being and the resources in the home to implement it," he said, adding that Essex had one-fourth of the state's 6,000 foster children. "The most difficult thing is the ambiguity because things are not black and white and achieving a kid's long-term interests may not be as easy as appears on paper."
Mr. LaRocco, who has raised four children of his own in Glen Ridge, was assigned by the court system to handle four children who had been placed in foster care after being removed from their homes because of complaints of neglect.
He evaluates their needs, making sure that the children, their parents and their foster parents are directed to appropriate services like medical evaluations or day care.
Then he reports back to a judge on what he has found as the case goes through the court.
His would be a record not of just dry facts, but of a child, he said, a three-dimensional human.
The foster children weren't quite sure what to make of this adult who had suddenly shown up in their lives, Mr LaRocco recalled. But they soon began to open up, and when he went to see one young boy for a second visit, he was quickly ushered into the child's room to see his neatly folded clothes and his wide assortment of shoes, all neatly stuffed in a row under his dresser.
"There were three pairs of sneakers and three pairs of boots," said Mr. LaRocco. "He was very proud and wanted me to see everything. We played a little while and did some arithmetic to see how he was developing. I could see I was making a difference."
"That's the idea, to give these children a cheerleader, someone who will stand up and speak for them," he added. "A child alone is a really striking image for me. This program in not in the abstract. It lets me put my hands around the issue and do something about it."

March 16, 1997, Sunday, Late Edition - Final

Citizenship Wars

BYLINE: By KIT R. ROANE

SECTION: Section 13NJ; Page 1; Column 1; New Jersey Weekly Desk

LENGTH: 2798 words

DATELINE: BLOOMFIELD

IN the seven years since Noel Gaynor left a prison in Northern Ireland and arrived in the United States, he has married his long-time American sweetheart, begun to raise a family and supported them by fashioning everything from wood harps to shingle roofs. On weekends, he has coached junior soccer, and on St. Patrick's Day he has marched in the parade.
But Mr. Gaynor's new life continues to be haunted by his old one as a member of the Irish Republican Army, by the politics of terrorism and the law. Once a target of the British court system, which deals harshly and sometimes summarily with those fighting British rule in Northern Ireland, he has now become a target of American immigration officials. The United States wants to deport him, and the newest laws on the books make it increasingly likely that it can do so, no matter how exemplary a life he has been living.
That life has made Noel Gaynor a rallying point for Federal lawmakers and others who want to help a potential citizen, as well as those who see his case as a way to take issue with bureaucracy gone too far.
Like Mr. Gaynor, at least six other former I.R.A. members across the United States are also facing deportation because they checked "no" in a box on their original visa application that asked if they had ever comitted a crime. (They believe they have not.) Seven Palestinians and a Kenyan, known as the L.A. Eight, face deportation for similar reasons and because immigration officials argue that their support of such groups as the Popular Front for the Liberation of Palestine -- which has carried out terrorism -- makes them terrorists themselves.
But these are just the best known of a group that also includes thousands of legal immigrants who were once arrested here or overseas for crimes that range from possession of drugs to shoplifting. All face imminent deportation under the new laws.
Many are already involved in a struggle that Mr. Gaynor has been fighting since the day he applied for a visa in 1990, telling immigration officials about his I.R.A. past and the reason he felt he had committed no crime. Since then, the Immigration and Naturalization Service has done everything in its power to make the 43-year-old immigrant's stay precarious, from questioning his friends and family to arresting him at his job, from ordering a series of deportation hearings to saying he has no legal right to be heard.
At issue are Mr. Gaynor's two-decade-old conviction for his part in the 1973 I.R.A. assassination of a Protestant policeman, and a difference of interpretation over whether his role with the I.R.A. makes him a terrorist or a freedom fighter.
But in the wake of tough new immigration statutes passed last year, particularly those rushed through under the guise of anti-terrorism measures, people like Mr. Gaynor have found little ability to plead their case before an immigration judge and little hope of having it reviewed in the Federal courts.
His supporters include not only hundreds of citizens and friends, but also Senator Robert G. Torricelli, Democrat of New Jersey, and six New Jersey House members. After all, they say, he is a family man who pays his taxes and contributes to his community, and the crime happened long ago. The trial, they add, took place in one of the country's notorious Diplock courts, established 25 years ago to deal quickly ( no jury, restrictions on presentation of evidence) with crimes arising from the eruption of violence in Ulster.
His supporters also say the crime was not murder, but an act of political violence during what many consider a war. Or, as his Congressman, Representative William J. Pascrell Jr., a Democrat, put it while leading Mr. Gaynor to the speakers' platform during a St. Patrick's Day parade in Newark last Sunday: "He was a freedom fighter, and he deserves every break in the book. This is not what we intended when we passed the law."

The Arduous Task Of Making a Case
Even before the immigration laws changed last fall, many like Mr. Gaynor faced or could expect to face an arduous task in explaining the subtleties of their case to an immigration judge. Some would have had to show that their foreign convictions took place in courts that bore little resemblance to those in America, without a jury, and where secret evidence was presented to the judge but not to the defense lawyer, where confessions were coerced or taken down before the defendants were granted a lawyer. Others would have to argue that their support of unsympathetic causes did not make them terrorists. But under the new law, judges have less leeway in making individual determinations, and the Attorney General would no longer have the right to waive deportation in cases of "aggravated felony," a category that now includes many nonviolent drug and theft offenses where the sentence is a year or more.
Aliens committing some less serious offenses, known as crimes of moral turpitude, could also be deported by immigration officials even if no jail time was served. Based on state laws, these crimes would include, for example, shoplifting or jumping subway turnstiles. Neither crime category permits judicial review of a deportation order. (Immigration courts are a part of the executive branch of government, not the judiciary.)
This is also the case for any alien who arrives seeking asylum from persecution without the correct paperwork.
"The avenues for relief have been severely curtailed or completely eliminated, while the grounds for deportation have been greatly expanded," said Lucas Guttentag, director of the National Immigrant's Rights Project of the American Civil Liberties Union. "The new immigration laws are harsh and unrelenting and contrary to nearly 100 years of American history."
That is not the view of the I.N.S., which sees the new law as a way to enforce respect of a citizenship process long abused by many foreigners, including Mr. Gaynor. In his case, the agency has argued that nothing matters but his foreign conviction and his failure to note it as a crime on his tourist visa in 1990.
"We expect individuals to answer questions truthfully,"said Russell A Bergeron, a spokesman for the agency. "The determination of whether that conviction is a crime or an act of political opposition is a determination for the U.S. Government, not the individual filing the application.
"We think these laws will have a significant impact on removing them from the U.S. and put credibility back into immigration enforcement," he said.
Hero or terrorist? Mr. Gaynor resembles neither. Instead, he looks very much like the union laborer he is, a compact man with thick, coarse hands. His speaks a brand of nonviolent Irish nationalism, levened by references to his wife and two small girls, and memories of a peaceful childhood in the flat industrial town of Lurgan, near Belfast.
It was in the cramped Catholic neighborhoods of his youth that he first saw the destruction that could be wrought throwing rocks and stones, gunfire or bombs. But it did not begin that way.
Many of his earliest friends, he said, were Protestants from the other side of town. They were on the same football teams; they fished in the same mingling of rivers and took the dogs out to hunt rats at the same local dump. Their ghettos were often separate, but their interests were the same.
"No one asked you what religion you were because you were all young," he said. "You played soccer. You didn't get into politics. That was for the adults."
In fact, Northern Ireland had been in relative peace since 1921, when the British separated the troublesome mix of Roman Catholics and Protestants in Ireland's six northern counties from the predominantly Catholic south, making the latter a free state while continuing to tether the north. Catholics in Northern Ireland never ceased to complain about jury-rigged elections that denied Catholics without property the right to vote and gave Protestants near complete government control. They also continued to grumble about the discrimination they encountered in the search for jobs and housing.
Violence did not break out in earnest again until the late 1960's, when Catholics in Northern Ireland took a cue from the civil rights movement in America and started their own peaceful demonstrations at home, demanding more of a say in politics and a stake in the economy. Many also began to call for self-rule and unification with the south.
In turn, Protestants demonstrated in support of the status quo and the country's strong ties to Britain. Sectarian violence finally erupted in 1968, when bands of thugs on both sides began to burn out, beat and kill their "wrong-sided" neighbors.
This was the rebirth of several paramilitary forces, including the I.R.A. and the Protestant-led Ulster Volunteer Force. It also marked the return of the British Army after more than 40 years of furlough.
Mr. Gaynor joined the I.R.A. around 1972, near his 18th birthday. He had already become an expert at throwing rocks and bottles at the British soldiers who swarmed about his neighborhood shooting tear gas into crowds and deflecting protest with rubber bullets. And he slowly fell in with a radical element.
But the defining moment came about two years earlier, on the night when his house was searched by British soldiers -- a common occurrence in Northern Ireland in the early 1970's. Mr. Gaynor said the British, apparently believing that either he or his father had been helping the I.R.A., stormed into the family home and dragged his father out of bed. As he resisted, one soldier struck the 61-year-old man across the head with a rifle butt. The soldiers searched the apartment, ripping up floorboards and tearing the cabinets off the wall, Mr. Gaynor said.
"This was when I decided," Mr. Gaynor said. "I was about 15 years old, and there was my father, a milkman, beaten and afraid on the floor."
Mr. Gaynor's father tried to get his three sons to leave Ireland for America or Australia. Only one did at the time, and it wasn't Mr. Gaynor. He would be drawn increasingly into the fight.
"It wasn't immediate, like some guy walked up to you as you threw stones and said, 'Hey, you look like a good I.R.A. man.' It was gradual. From playing football with my friends to marching in the peace rallies, I went to throwing bottles and stones at the British," Mr. Gaynor said. "But people couldn't protect their areas from the British forces and the Protestant gangs, so someone stepped in and promised to do it. For the Catholics, it was the I.R.A."
In, 1977, a special anti-terrorism court convicted Mr. Gaynor of murder and sentenced him to life in prison for his part in an I.R.A. attack four years earlier. The office of the Secretary of State for Northern Ireland said Mr. Gaynor was one of several spotters assigned to a section of Lurgan to point out potential security-force targets to two I.R.A. gunmen in a nearby house. One target, a two-man police patrol, was attacked. Two bullets hit one of the officers, who died within the hour.
(Northern Ireland's police force is overwhelmingly Protestant. Besides working closely with the British Army, its members have been cited for providing intelligence files to Protestant paramilitary units, which then used them to find and kill Catholics. Because of this tie to the British military, Mr. Gaynor's immigration lawyers can still argue that the conviction was of a purely political nature.)
Mr. Gaynor was arrested three years after the attack. A confession he gave was coerced by beatings, he said. After his his conviction, sent to Longkesh Prison.

First Pen Pals, Then Married Life
Colleen Connelly, an Irish-American from New York, began writing to Mr. Gaynor as a lark on Christmas Day 1987.
Hundreds of letters followed, leading up to a prison visit in January 1989 that sealed their attraction.
"When I left, he told me that we should each immediately write letters so that they will cross in the mail," Mrs. Gaynor said. "He said we could then be honest about how we felt. I was already on cloud nine."
When Mr. Gaynor was granted an early release in June that year, she returned to Northern Ireland twice to be with him during his parole. He said they considered staying in his hometown of Lurgan, but that British soldiers helped him change his mind during an impromptu visit.
"They said that if I thought 14 years was enough time, that I was mistaken," he said, adding that retaliation by soldiers and Protestant militants is still common in Northern Ireland, an assertion that is backed up by news reports detailing killings of both former I.R.A. members and their families.
"I figured that while I was maybe a legitimate target because of my past, I couldn't put Colleen in that kind of danger," he said. A year later, he flew to New York on a tourist visa, and on March 25, 1990, the couple married. The attempt to get a green card began.
When they started immigration proceedings, based on his marriage and his fear of persecution in Northern Ireland, they told I.N.S. officials about Mr. Gaynor's conviction and the reason he did not consider it a felony, Mr. Gaynor said.
While the I.N.S. considered their argument, Mr. Gaynor was granted a temporary work permit. It was renewed without incident until February 1993, when I.N.S. agents arrived at Mr. Gaynor's job at a lumber mill near their first home in Olean, N.Y., and arrested him, saying that he did not have the right to apply for asylum.
Mr. Gaynor's father-in-law put up the $50,000 bail -- his life savings -- and the fight was on. During this period, the Gaynors moved several times, at first to put a distance between them and the embarrassment of Mr. Gaynor's arrest and then to find a town they thought would give them a nice home and provide a good education for their two children, Sinead and Brady.
Two years ago, they settled in Bloomfield, where neighbors and friends set up a fund to help the family pay for their legal fight and members of Congress in the state began to take an interest in their case.
Things looked good until Nov. 6, shortly after President Clinton signed into law several changes in the immigration code. On that day Immigration Judge Walter A. Durling in Buffalo interpreted one of these changes as denying Mr. Gaynor the right to argue his petition for asylum before the court.
"The judge's decision, based upon the amendment to the law, cut us off at the knees," said James P. Harrington, one of Mr. Gaynor's lawyers. "We were never allowed to present our case on the merits of Mr. Gaynor's political asylum application. We were told that we couldn't bring this up, that he is not eligible for any form of relief."
Although lawyers for Mr. Gaynor and the other Irishmen facing deportation say they will appeal any such decisions to the Board of Immigration Appeals, the new amendments make their cases harder to win.
"If he loses before the board of appeals, then the I.N.S. will say that under the new law he has no right to a hearing before the Federal courts," said Dan Kesselbrenner, the director of the National Immigration Project for the National Lawyers Guild. "That is the potential danger for many immigrants with strong issues."
He said the Gaynor case illustrates how shortsighted Congress was. The revisions, he noted, were proposed after what at first appeared to be a foreign terrorist attack in Oklahoma City, after many Government officials blamed needy non-citizens for dwindling resorces and when the I.N.S. was complaining about an estimated 5 million illegal aliens swamping the borders and clogging the courts.
"This was sound-bite legislation," Mr. Kesselbrenner said. The best hope now for immigrants like Mr. Gaynor is the introduction of legislation to revise the rules by some of the same lawmakers who supported the original bills. Many who have become involved in the Gaynor case say they are planning just that. Some, like the 62 members forming the Congressional Ad Hoc Committee for Irish Affairs, have pleaded with President Clinton to intercede on behalf of the Irish facing deportation.
"This is a situation where the Government has just not thought clearly," Senator Torricelli said. "Noel Gaynor has paid his debt to society and has built a constructive life in America. There is nothing to be gained from both breaking up his young family and putting him in personal danger."
Representative Robert Menendez, Democrat of Union City, said: "We are looking at ways to amend the law. Congress got swept up in the moment and was concerned about problems of real terrorism and things, but this goes beyond our intent."
He added: "We don't want to undermine the very purpose of the immigration laws and our system of justice to do so."

The New York Times

February 2, 1997, Sunday, Late Edition - Final

N.J. LAW;
Gay Couples and the Law, at Odds Over the Right to Marry

BYLINE: By KIT R. ROANE

SECTION: Section 13NJ; Page 7; Column 1; New Jersey Weekly Desk

LENGTH: 842 words

DATELINE: NEWARK

THE gym brought them together, but it took six weeks of courting on the phone to reach the first date. Old relationships still haunted them, including one marriage, and there was a great fear of rushing things.
But that was four years ago, and now they are a couple in every sense of the word. Tim Smithhart and John Ammitzboll live together in Paterson, have bought two houses and regularly argue about rearranging the furniture. Two English bulldogs, Bette and Daphne, and two cats, Tipper and Lizzie, round out their family. They are thinking about adopting a child and would marry if they could.
They are not legally married, however, and it appears unlikely they will be anytime soon. The New Jersey Legislature is considering a bill against same-sex marriages and against recognizing any such marriages that might eventually be performed in other states.
"This is because we have to protect the sanctity of marriage," said Marian Crecco, a 65-year-old Republican Assemblywoman from Bloomfield whose bill passed out of the Assembly Health Committee late last month. "Allowing them to marry would make the institution meaningless. What if someone next wants to marry their brother or sister? Where does it stop?"
The bill, as well as another now before the Senate, would prevent gay marriages from occurring in New Jersey and ban the recognition of same-sex marriages performed elsewhere. In a small victory for gay-rights advocates, one section stating that such marriages were "against the public policy of the state" was struck from the Assembly version of the legislation but remains in the Senate bill.
While having no real effect on the current situation of gay men and lesbians in New Jersey, the law would make it necessary to fight separate court battles in New Jersey should the Hawaii Supreme Court strike down that state's ban on same-sex marriages later this year. Earlier rulings in Hawaii went against the ban.
Proponents of the bill hope it will make the New Jersey Supreme Court less likely to follow Hawaii's lead. So far, 16 states have passed measures against gay marriages, while gay-rights advocates have successfully fought these bills in 20 other states.
Lawyers specializing in constitutional and civil rights law said the legislation could be fought in two ways: either by arguing that same-sex marriages must be allowed to insure equal protection under the 14th Amendment, or by arguing that New Jersey must honor gay marriages under the "full faith and credit" clause requiring states to recognize the laws of other states.
But Earl Maltz, a civil rights specialist at Rutgers State University School of Law in Camden, said that there was little Federal law supporting intervention by the United States Supreme Court in such a matter, and that gay rights advocates would combat the law more easily through New Jersey's state court.
He added that the Defense of Marriage Act passed by Congress and signed by President Clinton last year clearly states the Federal Government's belief that states are not obligated to recognize single-sex marriages performed elsewhere.
"Constitutionalizing this right would be a long stride, so the only recourse here appears to be in state court," he said. "But there tends to be a certain momentum to things like this, and the most difficult is getting the first state court to drop the ban. It then becomes easier for other states to follow."
The importance to homosexual couples goes far beyond an emotional desire to have their unions recognized. Currently, couples like Mr. Smithhart and Mr. Ammitzboll face financial and legal problems if one partner becomes ill or dies, including the inability to make medical decisions for a partner.
Without recognition of their union, Mr. Smithhart, 36, and Mr. Ammitzboll, 32, are also denied tax, pension and Social Security benefits that married couples have.
"We pay taxes, keep our property nice and will die in the end, like everybody else," said Mr. Ammitzboll, a hotel manager. "All we want is to be given the same rights that others now take for granted."
"Nobody should be able to legislate against my right to chose whom I love and want to spend my life with," he added.
But despite the pleas of Mr. Ammitzboll and others, passage of Assemblywoman Crecco's bill seems inevitable, political analysts said. They noted that it was an election year in a state dominated by Republican legislators unlikely to court the gay vote, and where a Republican governor known to be sympathetic to homosexuals has said she does not believe in same-sex marriage.
When the issue is framed as one of family values, said David P. Rebovich, a political science professor at Rider University, even liberal Democrats would have a hard time opposing the bill.
"This is a mischief-maker piece of legislation, a lot like flag-burning," Mr. Rebovich said. "It's symbolic and can put Democrats in a tough position because it makes them chose between the broad center of voters and their more general feelings about civil rights."

January 19, 1997, Sunday, Late Edition - Final

ENVIRONMENT;
Tougher Clean-Air Rules Conceal Potential Silver Lining

BYLINE: By KIT R. ROANE

SECTION: Section 13NJ; Page 6; Column 2; New Jersey Weekly Desk

LENGTH: 912 words

Long an underdog in the quest for healthy air, New Jersey stands to fall even further behind if recent Federal proposals for more stringent air-quality standards take effect.
The standards, which would classify lower levels of ozone and smaller particles of soot as unsafe, would make compliance difficult for most state governments, but could make it impossible for New Jersey and other states in the densely packed Northeast to comply on their own.
Despite obstacles to compliance, Governor Whitman supports the stricter regulations. In fact, she and other Northeast governors are prepared to lobby heavily to have them adopted. The reason is simple: The new rules would enlarge the Government net over communities that have so far escaped regulation but whose pollution has tended to drift across borders into the Northeast.
"New Jersey is supporting this because it is looking for help," said Alan Krupnick, the co-chairman of the Federal Environmental Protection Agency's subcommittee on ozone, particulates and regional haze implementation programs. "If the guidelines are strengthened, more areas of the country come under the gun. New Jersey is betting it can shift most of the responsibility upwind." It could be a political boon for the Governor, helping her to enhance her environmental portfolio while deflecting criticism of the state's poor air quality to outside sources. The Governor has already announced several environmental projects or goals in recent months. This month she backed a long-stalled initiative that would force New Jersey Transit, the state's mass transit agency, to buy buses that run on alternative fuels, instead of diesel. She has also been able to crow about the measured improvement in air quality throughout the state, with unhealthy ratings being recorded fewer than one day in 20 during last year, as compared to one every 10 days in 1986.
And while the state came nowhere close to meeting a 15 percent reduction in pollution levels required by the Federal Clean Air Act, the Governor has pointed out that the E.P.A. recently proposed granting interim approval for an ambitious vehicle inspection and maintenance program that could help the state reduce pollution by up to 23 percent.
Her administration added on Wednesday that the Governor would support the E.P.A.'s proposed regulations. The standards would limit ozone in the air to 80 parts per billion, averaged over an eight-hour period, compared to the current rule that limits it to 120 parts per billion, averaged over one hour. It would also decrease the size of particles that fall under its regulation to 2.5 microns in diameter, causing at least nine counties in New Jersey to fall out of compliance. (Typically, noncompliance draws threats of even tighter restrictions or of withholding Federal highway funds.)
"She is repositioning herself as a green governor and we will probably see a lot more of this as the year progresses," said Richard A. Kassel, a senior lawyer for the Natural Resources Defense Council. Adding that the Whitman administration recently settled a nine-year-old lawsuit brought by the council over non-implementation of several state pollution control strategies, he added that "the first couple of years the environment was not on her radar screen."
Many environmentalists still wonder if it is on the screen. Curtis Fisher, program director for the New Jersey Public Interest Research Group Citizen Lobby, said that Governor Whitman long ignored calls to restrict the use of diesel buses by New Jersey Transit until this year, had not reined in several badly polluting power plants and had done little to invest in energy efficiency or renewable energy sources.
"New Jersey is also a source of pollution," he added."If we did a better job at cleaning up our own back yard we would be in a much better position to tell Ohio to clean up its."
But doing more cleaning in New Jersey is becoming increasingly difficult. While many power plants in Ohio and Illinois have yet to install scrubbers on their smokestacks, this is already a common feature in the Northeast where most quick fixes have already been squeezed from industrial polluters and new measures have proved not only more expensive but also politically unpalatable.
Governor Whitman's auto inspection and maintenance program, for example, has been hotly debated and gone through several changes because of an outcry by motorists and those who service their cars. It remains unclear if or when the program will take effect.
"The first 50 percent of pollution reduction is easy to get by just putting scrubbers on smokestacks," Mr. Kassel said. "But there are no easy targets left in New Jersey. If everyone stopped driving tomorrow the state would still be in non-compliance because of the pollution coming in from places like Ohio. That's why the stricter standard is absolutely critical."
Common wisdom is that the new standard, while slightly increasing the pressure on New Jersey, will disproportionately hit areas in the South and West, whose pollution has long drifted into the Northeast.
Ray Werner, an E.P.A. official for this region, said that the agency would strongly weigh this fact when calculating new pollution control measures.
The E.P.A. has estimated that even partial national compliance would cost up to $8.5 billion, while the health benefits would be worth up to $120 billion, among them being the reduction of premature deaths.

The New York Times

December 1, 1996, Sunday, Late Edition - Final

The State of Disunion

BYLINE: By KIT R. ROANE

SECTION: Section 13NJ; Page 1; Column 1; New Jersey Weekly Desk

LENGTH: 2854 words

THIS month is a three-year anniversary for Paula Doremus, one consumed by regret for the past, uneasiness for the future.
In the three years of their separation, Mrs. Doremus and her husband, Jack, have grown more distant and cold, as each has tried to forestall the expensive process of recrimination that each year consumes the lives and often fortunes of about 50,000 New Jerseyans, a process seemingly nobody in this state slips through without a long, deep wound: divorce.
"It's a cat-and-mouse game right now, a waiting game," said Mrs. Doremus, 46, a cardiac technician from Vernon. She fears her husband will fail to make mortgage payments on the family home, where she still lives. "I look in the local paper every week to make sure that it's not about to be sold on the sheriff's block," she said. "In the meantime, he waits to see if I am about to take him to court, and I wait to see if he's about to take me. Neither one of us can afford the lawyers so I feel pretty lucky we've been able to avoid the process."
This waiting game -- a prolonged, formless and painful separation with little immediate prospect of resolution -- may seem unusual, but it has at least one advantage: so far, the Doremuses have managed to avoid the emotional and potentially ruinous financial toll that must be paid to enter New Jersey's matrimonial law courts, navigating a labyrinth of red tape, adversarial legal battles and often several different judges before reaching the end.
Anger is a common result of the process. It comes from entering a structure that immediately places distrustful participants in antagonistic roles, where they are susceptible to being prodded by lawyers whose fees increase as the battle wears on.
Deluged by hundreds of complaints, the State Legislature is considering 21 bills that, among other things, are intended to shorten the length of a separation before some divorces are granted to as little as three months (it is now 18 months, at least), to promote mediation instead of costly adversarial encounters (the total legal cost of a divorce averages $8,000 to $20,000, lawyers say), toughen enforcement for alimony payment and require divorcing parents to attend seminars explaining the laws and their responsibilities after divorce.
At the same time, the State Supreme Court is considering its own set of rules to do the same. The court has heard from hundreds of litigants, lawyers and other interested parties since starting hearings on the subject last spring, with the last one in October. The court has set a deadline of next fall to coalesce these opinions into a new policy.
Among the changes being considered by the court are ways to more strongly encourage divorce mediation, to make sure that judges are assigned cases from start to finish and to limit the ways lawyers can collect payment, which has sometimes included placing liens on the homes of clients already reeling from the dissolution of their marriage and division of property.
It is none too soon for change, according to lawyers, litigants, judges and legislators.
"People are saying, 'The system is not responsive to me and I am not walking away feeling like I am a winner,' " said Jeffrey Kuhn, the Supreme Court's staff director on the 26-member special committee, which includes judges, business people, social scientists and teachers. "These are people who had bad divorces and they want to be heard," he added. "We are trying to come up with alternatives."
Donna Brophy, 43, a secretary with two children, wished she had been given some alternatives.
Married for 17 years, Ms. Brophy thought that the beginning of a divorce proceeding in 1988 would lead to a short, if painful, experience and then a more promising future. But she was terribly wrong, she said, after six years of litigation that has cost her a home, her children and more than $40,000 in legal fees.
"When I was married, I was like anyone else," she said. "I dreamed of the little house in the suburbs, watching my children grow up, having grandchildren and growing old with my husband," she said. "It was the fairy tale."
Instead, Ms. Brophy's tale is one of a divorce proceeding that was put off three times, went before at least seven different judges (she lost count), and was handled by three separate lawyers.
When her husband asked for a divorce, she was uncertain about what to do, she said, so she asked a friend to recommend a lawyer. The lawyer, she said, turned out not to be a specialist. And though she spent more than $15,000 on his services, Ms. Brophy said he allowed much of her financial security to be negotiated out from under her.
By the time she discharged him, more than a year after filing, Ms. Brophy was forced to put her house up for sale in order to pay off this lawyer and ready herself for a second lawyer's bill. She also borrowed $3,000 from a friend to pay the retainer for lawyer No. 2, and began a search for work as a secretary in order to survive.
Although the divorce was finalized in 1991, her house was slow to sell, and lawyer No. 1 froze her bank accounts. He came to the closing of the house in 1992 just to collect, she said.
One year later, her husband sued her for custody of their 16-year-old and 18-year-old sons, claiming that he had a better house and could be a better provider for them, she said. That caught her just as she was beginning to make ends meet in her new job. Enter lawyer No. 3: roughly $10,000 went to him, she said. Ms. Brophy lost the case.
"The system did not work for me," Ms. Brophy said. "The judges kept continuing the start of trial and the billable hours kept growing for the lawyers, who were basically working for themselves. By the end, I just had to buckle under and not fight anymore.
"This is not a justice system, it's a legal system," she added. "Only the lawyers win."
There are roughly 25,000 divorce filings a year, according to the State Supreme Court. That means 50,000 new litigants are grappling for the time of only 108 matrimonial law judges, who over the past year were swamped with nearly 400,000 marriage-related filings, also including domestic violence hearings and child support claims.
Often these judges will be shuffled from one case to another in mid-trial because of these demands, or will have to put off trials two and three times in order to see them through to the finish.
"This problem is very much a sign of the times," said Patricia Barbarito, chair of the New Jersey State Bar Association's Family Law Center. "The extraordinary volume of cases is overloading the system and what used to take six months now takes a lot longer. The reforms are an attempt to catch up with what is happening in society."

EARLY REFORMS
No-Fault Divorce
It's not that the system has ever worked very well. Before some changes that were put in place in the 1970's, most women had little option to leave a bad marriage because there were severe limitations on what was good cause and there was also no equitable-distribution law on the books in the state. That meant that if a couple wanted a divorce, one of them had to prove extreme cruelty (usually physical), adultery or desertion. And because judges did not have the power to transfer property from a husband to a wife, any woman claiming such grounds was likely to find herself out on the street for her efforts.
The social liberalism of the 60's weakened traditional attitudes, and the increasing number of people wanting divorces demandedthat the system make uncoupling easier. In response, equitable distribution of assets was added to the legal code in 1971 and people were given the option of divorcing without asserting fault if they separated for 18 months before filing. Although the no-fault rule simplified the process, the 18-month requirement is blamed for much of the rancor that is still part of divorcing in New Jersey.
One bill currently before the New Jersey Senate would shorten the time required for separation to 90 days, a change supported by most lawyers and clients.
"Most people are not going to wait 18 months if they really want a divorce, nor can many people afford to live apart that long while waiting to begin one," said John E. Finnerty, a divorce lawyer in Paramus who is a former chairman of New Jersey Bar's family law section. "That means they will file on fault grounds and nasty things will have to be said in order to begin the process. That often increases the antagonism between the parties and makes the divorce a longer and more protracted struggle."

ALTERNATIVES
Urging Mediation
Fashioning a less adversarial relationship between divorcing spouses is a chief concern of the Supreme Court. One of the ways to do this is increasing the profile of mediation as an alternative to a court battle. A 1991 study of 50 couples in Essex County in court-based custody mediation found that the process produced a settlement rate of 62 percent. The study also found that 30 percent of those who were unable to come to an agreement were in favor of the process.
Currently, judges in New Jersey can recommend mediation for any civil matter and are required to send custody litigation through court-sponsored mediation first. Many lawyers routinely advise their divorce clients either to seek mediation before going to court, or practice mediation themselves. Unlike long divorce trials, which can cost each party upward of $20,000, private mediation can often settle all matrimonial claims for under $6,000. This includes the bill for each party's attorney and the mediator.
"If you asked a shrink to devise the most inefficient system for this, it would be the court," said Douglas K. Shoenberg, a lawyer in Summit who exclusively practices mediation. "It creates a battle mentality that goes on forever and is tremendously expensive, when people essentially just want to get things over and move on with their lives. Most divorces can be accomplished without a fight."
That may take some understanding on the part of those seeking divorce, however. Lawyers, mediators and the divorced can cite many instances where irritation and utter hatred have led clients to pursue blood more than equity. It is not always the fault of the lawyers, said one divorced woman, recalling her husband whispering in the courthouse hallway that fighting her in court was "more fun than playing tennis." Another recalled how her friend fought for days with a spouse over the ownership of a $10 Pinocchio videotape.
Robert T. Corcoran, a divorce lawyer in Hackensack, said he has repeatedly had to instruct some clients not to pursue the fight they were itching for.
"Divorce is very much an emotional exercise," he said. "I bill $250 an hour, and every time I take a case I tell my client that they do not want me going to court fighting over things that are not financially important. But I get a lot of people who say they'd rather give me their money than give it to their spouse. They don't understand that they are also hurting themselves."

LINGERING RAGE
Obstructing the System
Then there are some who direct their anger at the system itself, obstructionists who spend their free time making life miserable for the judges and lawyers who work in the matrimonial courts.
One of the most active cabals works out of Richard Trezza's small kitchen in Orange. His organization of several dozen members, called P.A.C.T. -- People Against Corruption and Tyranny -- packed the State Supreme Court's hearings on divorce reform, lining up for a good rant in the five minutes each was given for public comment. They routinely picket judges' homes, publish the names, addresses and phone numbers of legal professionals who have drawn their scorn, and, if picked up by the police, try to obstruct the court proceedings against them. Visitors to the command center are given some training in the art.
"So pretend you're the judge and ask me what's my name," said Martin Rodetsky, 54, divorced and grinning. " 'What's' isn't my name," he retorted. He noted with pride that he bantered about this point with one judge for four days before being sent to jail for another 115.
It's not the first time, he said, tapping away on his laptop. "I've been arrested 12 times for a total of 256 days," he added. "But I've never had a criminal conviction."
Though Mr. Rodetsky is an extreme case, he is one of many men in a variety of father's rights organizations who feel their grievances have been ignored. Some say they no longer pay child support because their spouses refuse to honor visitation rights and the courts refuse to uphold them. Others continue to pay support for children they have not seen in years but fill the system with new motions and orders at every turn. Some say they have been bankrupted by lawyers and by spouses who were given settlements they could not afford.
And they have a point, said Jacqueline Grindrod, a veteran divorce lawyer in Totowa, saying that lawyers sometimes encourage a fight.
"There are some women who cling to the old tenet that they should be maintained in the style that they have become accustomed to," she said. "Well, wait a minute, everybody loses in a divorce. Maybe it's time to get a job.
"You can't discount these fathers' groups just because they are coming from this angle," she said. "Not every guy who says he doesn't have the money really has it. But often there is the assumption that there is cash on the side and these guys get hammered," she added. "This leads to foreclosures and bankruptcies and anger."
The love that brings people together in marriage does not have turn to equal parts hate in a divorce, noted several women who were recently guided through the process by a Newton-based nonprofit organization called Project Self-Sufficiency. With the help of a grant by the New Jersey Bar Association, the project has helped hundreds of low-income women go through the legal system. Lawyers and law students assist clients with paperwork or coach them in court proceedings.
These women sound wistful as they talk about their lives before divorce, recalling how much they loved their lives and their husbands. Most were housewives before they or their husbands decided it was time to leave the relationship, often one that had carried both parties into middle age. And now, with little money and few skills, they are trying to restart their lives. But what these women most often talk about is not what wretches their spouses turned out to be. Instead they are filled with thoughts of how the system created wretches of them all.
Kathleen Donavan, 43, received her divorce settlement this October and is looking forward to obtaining a bachelor's degree in psychology at Sussex Community College, which she hopes will jump-start her life. She cares for three children, 18, 15 and 5, helped by money garnished from her ex-husband's wages.
"I don't think it had to be this way," she said. "I didn't want to fight but the court stuck us on two opposite sides and made me the bad guy for him, and him for me," she said. "And in the end, it was the kids who suffered. They went from middle class to poor in one year. My son dropped out of high school.
"This process shouldn't be about vengeance and using money as a weapon, it should be about getting on with your lives," she added, sitting on a bench under the fall leaves at her school. "People have to get past the anger. Unless they do, reforms aren't going to mean much."

Failed System, New Approach
The Legislature and the State Supreme Court are considering major changes to New Jersey's matrimonial laws, which have come under fire for promoting expensive, complicated and unnecessarily painful divorce and custody cases.
Following are proposed legislative initiatives:
Allow recovery for costs of fighting frivolous lawsuits in Family Court.
Allow wage withholding for alimony payments, as is already done for child support.
Allow the court to retroactively modify child support orders.
Allow spouses separated for as little as three months to cite irreconcilable differences as the cause for divorce; the period is now 18 months.
Require divorcing parents to attend a seminar explaining the matrimonial court system.
Establish a mediation program, which already exists, as a matter of law.
Following are court initiatives under consideration:
Have judges stay on cases from start to finish. At present, cases are often passed from one judge to another.
Regulate collection of lawyers' fees. This could include disallowing such practices as placing liens on mortgages to obtain payment. The court could also institute clearer billing guidelines, such as requiring lawyers to submit regular itemized bills to their clients.
Start a parental education program about the pitfalls of embarking on protracted divorce battles, including the effects of such battles on children and pocketbooks.
Recommend mediation for couples seeking divorce. The court system usually pays for mediation over custody and visitation issues, but if other issues are involved, the couple pays.

The New York Times

December 1, 1996, Sunday, Late Edition - Final

Keeping It Out of Court: When Mediation Works

BYLINE: By KIT R. ROANE

SECTION: Section 13NJ; Page 10; Column 1; New Jersey Weekly Desk

LENGTH: 498 words

WHEN Irene and Norman Katz decided it was time to split up their 26-year marriage, they feared the divorce process.
"We had seen other friends spend a lot of money on divorces, killing each other in the process and tearing the children apart. And the sad thing is that usually both sides ended up walking out of court thinking they had gotten screwed," said Ms. Katz, a 50-year-old corporate consultant. So they decided to seek out a divorce mediator.
"Our case was emotional and difficult, as separating after a long-term relationship would be," Mrs. Katz said. "But we were together at court in the end, we walked out together, shook hands, and it was O.K., as much as any divorce can be O.K.," she said. "It was fair and equitable. Neither one of us ended up feeling like losers or full of hate."
Mediators say this is how it should be most of the time, noting that they can navigate a couple through a divorce in months rather than years, and do so much more inexpensively than lawyers in court.
Experts say the Katzes' experience is common among couples who choose mediation. The process began at the end of spring and ended by the beginning of fall. It lasted 10 sessions, with a total cost of around $7,000 for the mediator and each spouse's lawyer. (The lawyers were used for phone consultation and to approve the final decree.)
The couple called the New Jersey Association of Professional Mediators for a list of members. Once they had decided on a mediator, the first question he asked was "why we were there and what our goals were," Mrs. Katz said.
Answering that question is an important first step, mediators said, because not all couples are ready for mediation.
"People who have family violence, these cases are definitely not for mediation, nor are people with psychological problems, drug problems, or people who are not willing to bend," Mary Vivian Fu Wells, president of the New Jersey Association of Professional Mediators. "That why we need to do an assessment before starting mediation."
Mr. Katz did not wish to be interviewed for this article, referring all questions to his former wife. According to Mrs. Katz, both she and her former husband saw the mediator together unless there was an impasse. In these cases each would talk to him separately, and then meet together again once negotiations could proceed.
In the end, both she and her husband avoided much of the animosity so common in a divorce. They still consult one another about important issues and see each other at family occasions. Perhaps most importantly, their 23- and 26-year-old daughters were never forced to pick sides and both still have good relationships with both their parents, their mother said.
"Mediation is a healthy way to go through a painful process with the least amount of scars," Ms. Katz said. "And it's definitely much better than going through the legal system hurt and poor."
New Jersey Association of Professional Mediators: (800) 981-4800.

April 13, 1997, Sunday, Late Edition - Final

N.J. LAW;
Shooting Holes in the Assault-Weapons Ban, One Rifle at a Time

BYLINE: By KIT R. ROANE

SECTION: Section 13NJ; Page 8; Column 1; New Jersey Weekly Desk

LENGTH: 1072 words

They were rapid-fire weapons that would look at home on any battlefield but could be purchased at most neighborhood gun shops. Some had flash suppressors or folding stocks. Others had mounts for launching a grenade or snapping on a bayonet. And seven years ago, they were banned in New Jersey under the toughest assault-weapon legislation in the nation.
But this month two of them are back and others are likely to follow, carrying the same semiautomatic action that gun control advocates sought to outlaw, but they have been redesigned slightly to avoid the ban. In one case, it was as simple as removing the bayonet lug from the end of a barrel.
The guns' reappearance came when the state Attorney General, after two lawsuits, revised the definition of what constitutes an assault rifle. The new definition is being criticized by gun control advocates as a rollback, while gun owners praise it as a move toward sanity. Either way, it has underscored the Attorney General's difficulty in enforcing the law, whose vague wording has been battered in state court and now faces a Federal court challenge.
"If you banned all semiautomatic guns the law would have some logic to it," said David Kopel, an attorney and research director of the Independence Institute, a conservative research organization based in Denver. "But what you have in New Jersey is a law that bans some just because they look bad then lets you have others. And that's confusing."
The New Jersey law banned 37 specific rifles and all others that are "substantially identical." For example, the law named the Colt AR-15, but in practice, the Springfield M-1A was also forbidden as similar. But both manufacturers, responding to the Federal assault weapon ban of 1994, slightly changed the design of these guns: the former removing a bayonet mount, the latter taking off both this mount and a flash suppressor, while adding Target Match to the name. They then became legal in most of the United States.
But both remained banned in New Jersey because the state said they still resembled assault weapons.
This began to change last year after a state Superior Court ruled in favor of a Long Branch resident, Robert D. Merrill, who had been charged with owning a Norinco MAK 90, which the police said was "substantially identical" to other assault guns banned by state law. The judge ruled that the term was too vague to be enforced.
The Attorney General decided not to appeal -- which insured the decision would have no effect in other cases. But this did little to stop the assault on the law, and in June the state was served with yet another, potentially far-reaching suit brought by gun owners in Federal District Court. The suit, led by Stephen Halbrook -- a Fairfax, Va., lawyer who was recently successful in overturning a similar assault gun ban in Columbus, Ohio -- attacks the law on several fronts, most notably on its vagueness.
In August, the Attorney General sent out a letter to prosecutors and local police departments giving new guidelines on what "substantially identical" meant. Closely following the definition set out in the 1994 Federal assault weapon law, the letter said that any semiautomatic weapon in New Jersey should be banned if it had two of the following: a threaded barrel, protruding pistol grip, bayonet mount, flash suppressor, grenade launcher or a folding or telescoping stock. Under this definition neither the Colt AR-15 nor the Springfield M-1A was an assault rifle. Both are nonmilitary versions of rifles used by the armed forces, a chief distinction being that the civilian weapons are incapable of automatic fire.
The challenges now being brought in New Jersey are notably different from those first used when trying to defeat such bans in places like California, the first state to adopt one. It is not a frontal assault on the constitutionality of restricting gun ownership; instead, it mainly attacks vague wording that resulted from the legislative debate that led to the gun law.
"This is not a second amendment, damn-the-torpedoes approach, which was the first shot at these laws," said Richard Feldman, head of the American Shooting Sports Council, a gun industry lobbying group. "This is a much more businesslike approach to a business issue and it's getting better results."
That worries many gun control advocates, who say the state court's decision and the Attorney General's recent shortening of the list of banned weapons may mark a turning point for the gun lobby after many years on the defense. Though few argue that such expensive and bulky assault weapons are favored by street criminals -- they show up in less than 1 percent of violent crimes -- they say that the law has symbolic importance and that to weaken it could invite fresh challenges to other gun control measures, including licensing restrictions and waiting periods. (Besides the Federal challenge, gun owners are also pushing for a bill now in the Senate to weaken restrictions on the carrying of concealed handguns.)
Former Gov. Jim Florio, who led the fight for the assault weapon ban, called such moves "troubling," adding that "the Attorney General and the courts are interpreting the assault weapons law in a way that chips away at the protections the public has come to expect."
"There is a real potential for destruction here," he said. "The law is fairly clear in its intent. And this is clearly a retreat under pressure from the gun lobby."
One way to counter the gun lobby's arguments in their Federal court challenge would be to pass new legislation that included the Attorney General's definition of "substantially identical" in the letter of the law, as is the case with the Federal ban.
This is now being pushed by Ceasefire NJ, the state's largest gun control advocacy group. But both Republicans and Democrats, many of whom slugged through the fight to get the original state legislation passed, said any new amendments would likely be shelved in New Jersey's current, Republican dominated, political climate.
"There is a general understanding among people who support the weapons ban that the majority party will not permit any serious efforts to improve the definition of assault weapons," said Senator John H. Adler, a Democrat from Cherry Hill, who fought for the original ban. In an election year, he said, "I suspect you won't see any legislation passed that will change the situation."

The New York Times

September 17, 1996, Tuesday, Late Edition - Final

Simpson Trial, Part II, Begins Today in California Civil Court

BYLINE: By KIT R. ROANE

SECTION: Section A; Page 14; Column 1; National Desk

LENGTH: 1292 words

DATELINE: SANTA MONICA, Calif., Sept. 16

Though his life and liberty have been preserved, O. J. Simpson will on Tuesday again face charges that he is responsible for the deaths of his former wife and her friend.
Mr. Simpson, the former football star and product spokesman who was acquitted of murder charges nearly a year ago, now faces millions of dollars in wrongful-death claims brought by the families and estates of his former wife, Nicole Brown Simpson, and her friend Ronald L. Goldman.
While much of the testimony promises to be a rehash of the criminal proceedings, the trial is likely to come down to the word of Mr. Simpson, who will not be able to cite protection against self-incrimination and will be forced to testify. Mr. Simpson's criminal defense lawyers did not put him on the witness stand.
But other evidence that Mr. Simpson's lawyers in the criminal trial used in his defense, including testimony suggesting that the investigation was botched because of racism and negligence in the Los Angeles Police Department, may not be permitted in this trial. It is the defense in this trial that would like to put the former detective Mark Fuhrman on the stand, not the plaintiffs, but Mr. Fuhrman is not expected to agree to testify.
The jury in this trial, set in affluent, mostly white Santa Monica, will be decidedly different from the criminal jury, and it will be deliberating under the easier standards of civil court: the plaintiffs will win if they convince only 9 of the 12 jurors that Mr. Simpson is responsible. And to find him responsible, jurors have to be only 50.1 percent sure. In a criminal charge, the prosecutors must prove their case "beyond a reasonable doubt" to all the jurors.
"O. J. Simpson now faces a mere tipping of the scales against him by a far different jury than he had before," said Gerry Spence, a trial lawyer not involved in the case. "His great hope will be that he comes across so convincing and charismatic that he is freed and can take one giant step toward rehabilitating his name. But it's a powerful gamble that he is likely to lose."
The plaintiffs will also ask the judge's permission to make a variety of points that the prosecutors were not allowed to make in the criminal case. They may introduce diary entries in which Mrs. Simpson said her ex-husband had stalked and threatened her and a picture of Mr. Simpson wearing a pair of rare Bruno Magli shoes that match a print left at the murder scene. Mr. Simpson has denied ever owning such shoes.
Much of the supporting cast is different, with three separate legal teams for the plaintiffs, mostly new lawyers for Mr. Simpson and another judge, Hiroshi Fujisaki of Superior Court. Warning against the "circus atmosphere" that clouded the criminal trial, Judge Fujisaki has imposed a broad nondisclosure order on all participants, including Mr. Simpson and the families of the victims. He has also banned cameras and sketch-artists from the courtroom. Mr. Simpson's lawyers will not have the option this time of playing out his defense over the air waves.
The lower burden of proof has led many legal experts to conclude that it will be much more difficult for Mr. Simpson's current lawyers to revive the theory that served his criminal defense so well: that the Los Angeles police bungled its investigation into what defense lawyers claimed was more obviously a Colombian drug hit. In interviews after the nine-month criminal trial, many jurors said that theory had raised a reasonable doubt for them.
This time, the notion of a plot may not even make it into court because Robert C. Baker, the well-regarded malpractice lawyer leading Mr. Simpson's defense, has yet to offer much proof that either drugs were involved in the murder or that the Los Angeles police planted and fabricated evidence. The judge in the civil trial has ruled that lawyers on both sides of the lawsuit must show the judge specific support for any theories before he will allow them to make the argument before the jury.
Jury consultants added that while Mr. Simpson's lead counsel in the criminal trial, the flamboyant Johnnie L. Cochran, was able to mesmerize a largely black middle-class jury in downtown Los Angeles with his tales of possible police misconduct, it will be a hard sell to Santa Monica jurors, who will be culled from affluent areas not far from the Brentwood neighborhood where the grisly double-murder occurred on June 12, 1994.
"In general, people who are able to flee the city for the suburbs tend to enjoy a favorable relationship with the police," said Robert B. Hirschhorn, a jury and trial consultant who has worked on several high-profile civil and criminal cases. "They are usually well-educated, have money and few hassles with the authorities, who they see as their protectors.
"These sorts of people will not be as receptive to conspiracy theories as those who sat on the case downtown."
But the nine lawyers for the plaintiffs will also face hurdles. For one, they will have to cooperate, experts say, and agree on which witness to call at what time and which questions to defer. They must also take pains not to reiterate points and pontificate to such a degree that the jury loses interest in their case. Jurors in the criminal trial said they had lost track of the prosecutors' arguments because they were too technical and the lawyers spoke too long.
Daniel M. Petrocelli, who represents Mr. Goldman's father and sister, has so far taken the lead in arguing pretrial motions, but he will share the stage with both Michael A. Brewer, who represents Mr. Goldman's mother, Sharon Rufo, and with John Q. Kelly, the lawyer for the Brown family, among other lawyers. Their sheer number may prevent them from building a relationship with the jury, a critical dance in which prosecutors failed miserably in the criminal case, the jurors said.
"There can only be one chief and the rest of the lawyers have to agree to be Indians," said Peter Arenella, a law professor at the University of California at Los Angeles. "We assume there is agreement that Petrocelli will be the lead, but there is always a possibility that lawyers' egos will interfere with common sense."
Lawyers for the plaintiffs will probably base their case on the same bloody gloves, cap and fiber and hair samples that failed to convince the first jury of Mr. Simpson's guilt. But, according to court papers, the plaintiffs' lawyers will try to bring in new evidence, like the picture of Mr. Simpson in the Bruno Magli shoe and evidence of drug use and marital infidelities by him.
Mr. Simpson's lawyers will try to block that evidence and may try to paint Mrs. Simpson as a drug user whose club-hopping life put her in the path of unknown killers. They will also try to depict Mr. Simpson, who overcame childhood rickets and poverty to become a well-known sportscaster and actor, as a loving man who dealt kindly with an ex-wife who was out of control.
But it will be up to Mr. Simpson in what is expected to be a four-month trial to bolster these arguments with a calm rendition of how things occurred in their relationship.
If Mr. Simpson loses the case, the victims' families are likely to find that there is little money to be rewarded, lawyers close to Mr. Simpson said, noting that insurance had covered most of his legal costs and that other costs have often gone unpaid by Mr. Simpson.
But money may not be the main motivation for the victims' families. In a mass mailing written shortly before the trial, Mr. Goldman's family pleaded for donations to a legal fund from those who want to help "right this wrong."
"What we want is justice for Ron," the letter said. "And unlike the first trial, our current lawsuit gives us real hope for justice."

The New York Times

May 22, 1995, Monday, Late Edition - Final

A Procrastinating Lawyer Is Jailed for His 20th Delay

BYLINE: By KIT R. ROANE

SECTION: Section A; Page 11; Column 1; National Desk

LENGTH: 729 words

DATELINE: LOS ANGELES

At various times over the last two years, H. Peter Young has been sick, broke, demoralized and, most recently, jailed. Now he fears that the State Bar will be nosing around asking questions about how he got there.
Mr. Young's problems converged last month when he became the first lawyer ever jailed by the California Supreme Court for failing to complete an opening brief in a death penalty appeal case. According to the American Bar Association, he is quite possibly the first in the nation to receive such a distinction.
Procrastination, for Mr. Young, 52, had become a messy affair. And explaining it to the court on April 4, after being granted 19 extensions over two years, was not easy. He contended that a long illness, earthquake damage to his house and financial hardship had caused him to seek his many extensions in the death penalty appeal of Royal Kenneth Hayes, but the court found no reason to grant him any more.
"Nineteen extensions is probably a record under the Guinness Book, and yet you come here today with more statements of a hardship, more statements of uncertainty and a whole litany of problems," said Justice Armand Arabian, noting that state taxpayers had already paid Mr. Young $104,000 for work on the as-yet-uncompleted brief.
"Your promises run hollow," Justice Arabian continued. "People go to state prison for stealing less from Dunkin' Donuts. You have to be relieved."
Mr. Hayes has since been given an interim counsel.
Mr. Young's situation illustrates the difficulties that can meet both counsel and client in the world of court-appointed lawyering. Mr. Young, who works by himself, was picked by the court from a list of eligible applicants to represent Mr. Hayes on an automatic appeal of the defendant's double-murder conviction eight years ago. Mr. Hayes, who is on death row at San Quentin, was convicted of killing his former girlfriend and her companion in Santa Cruz in 1981.
Mr. Young ran into difficulties almost immediately. It took court officials six years to assemble the 25,000-page trial record that Mr. Young was then supposed to have digested. From that, he was to have written a brief within a month. Mr. Young, who specializes in criminal and civil appeals but had never handled a death penalty case, also had to sort through 20,000 pages of files from Mr. Hayes's trial and to re-interview scores of witnesses.
But none of the approximately 2,000 hours of work Mr. Young says he has devoted to the case produced an opening brief.
Throughout a two-year correspondence with the court, he attributed the delay to poor health, judicial bureaucracy and the court's refusal to reimburse him for nearly half his work on the case.
Last March, in one of his many efforts to receive more money, Mr. Young wrote to the court saying he was on the verge of destitution. "My current bank balance is $28.74 and I have cash on hand of $48," he wrote. "I have not worked on any other cases for many months due to the demands of this case and severe illness I suffered last year, and I have no accounts receivable."
But, while Mr. Young said he had been reduced to typing the document himself and had been forced to enlist his fiancee to perform free paralegal work, he never asked to be relieved from the case. Even when it became clear that he was about to be held in contempt of court, he pleaded with the court to wait a month to place him in custody, so he could "complete the brief."
At his final hearing before the Supreme Court in April, he again assured the court that if it gave him one more extension and a little more money, the document would be filed.
"I will get it finished," he declared. "But I am penniless at the moment. I do not know where my rent money is coming from. Last month I borrowed a thousand dollars from a friend. I have no food. But some way, I will find the way to complete this brief. If I could get the court to pay me $6,000 it disallowed, that would ease tremendously the strain under which I am working."
In the end, his Kafkaesque tale of physical, mental and court-imposed hardships did little to dissuade the State Supreme Court, which sentenced him to five days in the Los Angeles County Jail and removed him as counsel for Mr. Hayes.
"I apologize to the court for not living up to its expectations," Mr. Young said. "Perhaps I bit off more than I could chew."

The New York Times

March 24, 1995, Friday, Late Edition - Final

Court Upholds Law Banning Unsolicited Fax Ads

BYLINE: By KIT R. ROANE

SECTION: Section B; Page 6; Column 4; National Desk; Law Page

LENGTH: 609 words

A Federal appeals court has backed the rights of fax machine owners over those of some small advertisers by upholding a law banning unsolicited advertising by fax. The ruling could lead to curbs on other advertising, lawyers said.
The unanimous decision by a three-judge panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco, upheld the right of Congress to stem the flow of costly and unrequested commercial faxes to businesses and homes. In doing so, the court rejected arguments that the 1991 Telephone Consumer Protection Act violates commercial free speech.
Charles F. Hinkle, who represented the five concerns that challenged the law, said he would not appeal because of a lack of money and the fact that the law had not been aggressively enforced.
The appeals court, on Feb. 1, upheld a decision by Federal District Court in Oregon.
On Feb. 6, the court upheld a provision of the law that bars recorded sales messages by telephone.
The act was intended to protect people's pocketbooks and privacy by restricting businesses' use of telephone lines to advertise. In upholding the ban on advertisements by fax, the court said that tying up consumers' phone lines and forcing them to pay paper and ink costs to receive advertisements that they did not request violated the law.
"Because Congress's goal was to prevent the shifting of advertising costs, limiting its regulation to faxes containing advertising was justified," the decision said. "The ban is evenhanded, in that it applies to commercial solicitation by any organization, be it a multinational corporation or the Girl Scouts."
But lawyers who specialize in information issues said the decision in the case, Destination Ventures Ltd. v. Federal Communications Commission, could have a broader effect on commercial communication, including direct mail and junk electronic mail, if its rational was applied elsewhere.
"It is a very dangerous precedent for other emerging technologies," said Daniel L. Brenner, a former senior legal adviser at the F.C.C. "Just because a message is unsolicited doesn't mean that someone does not benefit from it. Calling it junk denigrates the message before even inquiring about its content."
Lawyers for Destination Ventures and four other plaintiffs argued that the Telephone Consumer Protection Act unduly burdened businesses while saving consumers only a few pennies on the cost of fax paper and ink. They also said the law discriminated against businesses because it did nothing to stop others from sending unsolicited faxes.
"We are disappointed that the court did not recognize our position," Mr. Hinkle said. "The result is that unprotected speech like hate mail, vulgar cartoons and hoaxes can still be sent to recipients that have not requested them, but that the downtown deli can't send out a menu for the day to downtown businesses."
The plaintiffs, all of which either used faxes to advertise their businesses or sold fax numbers to others, filed suit against the communications commission in 1993 seeking relief from the law. The measure provides that those who receive such faxes are entitled to recover $500 in damages from the sender.
Information experts said Congress could apply the same rationale to restrict the use of the Internet, an information clearinghouse that connects millions of computer users. As with faxes, Internet messages are relatively inexpensive to send and cannot be blocked by consumers. Advertisers can send thousands of unrequested messages, forcing recipients to accrue telephone and on-line charges when they are retrieved along with other computer mail.

The New York Times

October 7, 1994, Friday, Late Edition - Final

California Court Opens New Gray Area for Libel

BYLINE: By KIT R. ROANE, Special to The New York Times

SECTION: Section B; Page 8; Column 3; National Desk

LENGTH: 855 words

DATELINE: LOS ANGELES, Oct. 6

One way a person has been able to libel an enemy with impunity is to file a lawsuit filled with false accusations, then mail a copy of the filings to a reporter, who can publish whatever is in the court document without fear of a libel suit. Now a California court has ruled that it would no longer consider copies of complaints that reporters receive from lawyers to be official court documents. This means that the sender of such documents may find himself in court.
Courts in other states, New Jersey and Maryland among them, have issued similar rulings in an effort to keep people from drumming up publicity after filing frivolous lawsuits. But news organizations are vigorously fighting the California decision because they say it could limit the public's access to one of the country's largest and complex court systems. They also fear that the ruling may influence other courts.
"The worry is that this ruling decreases the media's access to information and therefore it decreases the people's access," said Erwin Chemerinsky, a law professor at the University of Southern California in Los Angeles. "It also has the peculiar distinction of deciding whether what a lawyer says is libelous by looking at how the document was transmitted. That can't be a sensible ground for a legal ruling."
As the ruling now stands, California lawyers cannot be sued for filing potentially libelous documents with the court or offering them to parties involved in the litigation, but they can be sued for transmitting documents or reading their contents to anyone else.
The decision grew out of the case of a computer program company executive, Elias Shahvar, who sued ASP Computer Products Inc., which had dismissed him. Mr. Shahvar, a founder of the company, said in court papers that he had been wrongfully forced out. He also contended that he had discovered company officers billing for work they had not performed and found one director making improper stock transfers.
Three days before the complaint was filed, Mr. Shahvar instructed his lawyer, Robert H. Brunzel, to fax a copy of it to The San Francisco Examiner, which ran an article about it. Mr. Shahvar also sent copies to people who knew company officials socially or had business dealings with them.
The director and the company filed a countersuit, saying Mr. Shahvar and his lawyer had defamed them because they had sent the documents to the newspaper, instead of requiring the newspaper to get them from the court. In a pretrial hearing in Third District Court in Northern California, a judge agreed that the company had a valid complaint.
Mr. Shahvar appealed the ruling. The appeals court backed the judge's opinion, saying the material given the newspaper was not privileged. Within days, and before the appeals court published its decision, the company and Mr. Shahvar settled. Any right to appeal the privilege issue died with the settlement.
Several news organizations, including The San Francisco Examiner and the California Newspaper Publishers' Association, are now taking the unusual step of asking the State Supreme Court to erase the decision, or to "depublish" it.
"It seems to be the height of irrationality to rule that you can say something in court filings and it's protected, but you can't send it to a reporter, or repeat it to him, without being sued," said Peter E. Scheer, the editor and publisher of The Recorder, a San Francisco legal publication that has also asked the State Supreme Court to intervene. "This will have a chilling effect on courts."
Mr. Brunzel, for example, says that he no longer feels comfortable discussing the Shahvar case, or any others for that matter. "I can't help you," he told a reporter recently. "But I will tell you one thing. The court did not make the right decision, and it will cause a serious shakedown that will affect the free flow of information to the press."
The ruling has also made it difficult to post court documents electronically on data bases used by lawyers and judges nationwide.
The state law protecting litigants from lawsuits over contested legal claims, Section 47 of the California Civil Code, was passed in 1872. It also protects newspapers that report on court proceedings.
The Shahvar decision conflicts with an earlier state appeals court decision, Abraham v. Lancaster Community Hospital, which held that lawyers legitimately function as a kind of bridge between the courts and the news media when they transmit their pleadings to the press.
Legal experts say that unless the Legislature steps in to clarify the statute's wording, the State Supreme Court will be forced to stem the growing confusion among lawyers over what is permitted when talking to reporters or explaining litigation to the public. And any action by the California Supreme Court, they say, could influence other states.
Professor Chemerinsky said, "A lot of the concern about this puzzling decision is that California, with about 11 percent of the population and more than that percentage of trials -- particularly high publicity trials -- may affect what other states do in this area."

Removal of lawyer-reporter privilege targets frivolous lawsuits

BYLINE: Kit R. Roane, New York Times News Service

SECTION: A SECTION; Pg. A23

LENGTH: 642 words

LOS ANGELES
One way a person has been able to libel an enemy with impugnity
is to file a lawsuit filled with false accusations, then mail a
copy of the filings to a reporter, who can publish whatever is in
the court document without fear of a libel suit. A California court
recently struck back by ruling that it would no longer consider
copies of complaints that reporters receive from lawyers to be
privileged.
Courts in other states, New Jersey and Maryland among them,
have issued similar rulings in an attempt to keep people from
drumming up publicity after filing frivolous lawsuits.
But news organizations are fighting the California decision
because they say it could limit the public's access to one of the
country's largest and most complex court systems. They also fear
that the ruling could set a legal precedent.
"The worry is that this ruling decreases the media's access to
information and therefore it decreases the people's access," said
Erwin Chemerinsky, a law professor at the University of Southern
California. "It also has the peculiar distinction of deciding
whether what a lawyer says is libelous by looking at how the
document was transmitted. That can't be a sensible ground for a
legal ruling. "
According to the ruling, California lawyers cannot be sued for
filing potentially libelous documents with the court or offering
them to parties involved in the litigation. But they can be sued if
they transmit documents or read the contents to anyone else.
The decision grew out of the case of a computer program company
executive, Elias Shahvar, who sued ASP Computer Products Inc.,
which he had co-founded, after the company dismissed him. Shahvar
said in court papers that he had been wrongfully forced out. He
also contended that he had discovered company officers billing for
work they had not performed and found one director making improper
stock transfers.
Three days before the complaint was filed, Shahvar instructed
his lawyer, Robert H. Brunzel, to fax a copy to the San Francisco
Examiner, which ran an article about it. Shahvar also sent copies
to people who knew company officials socially or had business
dealings with them.
The director and the company filed a counter-suit, saying that
Shahvar and his lawyer had defamed them because the newspaper had
obtained the complaint from the lawyer rather than the court. In a
pretrial hearing in 3rd District Court in Northern California, a
judge agreed with the company.
Shahvar asked an appeals court to intervene, while the case was
in progress, and the appeals court backed the judge's opinion,
saying the material given the newspaper was not privileged. Within
days of the appeals court's ruling, the company and Shahvar settled
their cases against each other.
Several news organizations, including the San Francisco
Examiner and the California Newspaper Publishers' Association, now
are taking the unusual step of asking the state Supreme Court to
erase the decision, or to "depublish" it.
"It seems to be the height of irrationality to rule that you
can say something in court filings and it's protected, but you
can't send it to a reporter, or repeat it to him, without being
sued," said Peter E. Scheer, the editor and publisher of The
Recorder, a San Francisco legal publication that has also asked the
state Supreme Court to intervene.
He added, "This will have a chilling effect on the courts. "
Brunzel, for example, says that he no longer feels comfortable
discussing the Shahvar case, or any others for that matter. "I
can't help you," he told a reporter recently. "But I will tell you
one thing. The court did not make the right decision, and it will
cause a serious shakedown that will affect the free flow of
information to the press. "

The New York Times

September 9, 1994, Friday, Late Edition - Final

A Pog, by Any Other Name, Is an Intense Legal Dispute

BYLINE: By KIT R. ROANE, Special to The New York Times

SECTION: Section B; Page 7; Column 1; National Desk; Law Page

LENGTH: 1291 words

DATELINE: LOS ANGELES, Sept. 8

Pog has been called the tiddlywinks of the 1990's, heir to mumbletypeg and marbles. But the explosive popularity of this simple children's game, and its profit potential, have ignited a legal dispute so intense that it has at times erupted into adult violence.
At issue is one company's claim of exclusive rights to the name Pog, the name by which the game is now almost universally known by the children who play it and by the adults who market it.
The game dates to the Depression, and was then called Milk Caps because it was played with the cardboard disks that were used to seal glass milk bottles. The disks are stacked, and then a thicker disk, called a "slammer," is thrown at the pile. The thrower wins points for every disk that is flipped over. In more aggressive versions of the game, the thrower keeps the flipped disks.
In 1991 the game was revived by Blossom Galbiso, a teacher at an elementary school in Oahu, with the children replacing the milk covers with cardboard caps from a popular fruit juice beverage. The drink was called POG because of its ingredients -- passion fruit, orange and guava. And as the game spread throughout Hawaii, children started calling the game Pog and the disks pogs.
Promotion Giveaways
The children soon began collecting disks with different designs, which in turn attracted advertisers who made their own disks that were embossed with their logos, and gave them away as promotions.
The disks are now believed to produce sales of $350 million to $500 million a year in Hawaii, and the game has already spread to California, where an estimated 350 million disks have been sold since November, and to parts of Texas, Washington State and Florida. The game's popularity has fueled immense competition among those rushing to buy licenses of popular images and logos for everything from surf shops to school districts and comic book heroes.
Toy retailers and department stores see the potential for Pog to be the Hula-Hoops of the mid-1990's. Already, sales in California are estimated at more than 10 million a week, and many retailers are displaying banners trumpeting, "Yes, We Have Pogs!" The regular disks range in price from 25 cents upward, with an average cost of about $1. Slammers can run as high as $6.
Recently, some McDonald's restaurants in Southern California have been selling 25-cent "milk caps" with images of Ronald McDonald and other trademark characters. But when a visitor to a McDonald's in Santa Ana asked for milk caps on Wednesday, he was told, "I'm sorry, but we've run out of pogs."

Lawsuit and Countersuit
Given that kind of popularity, it was not surprising that things got nasty last year when a corporation calling itself the World Pog Federation decided to buy rights to the word POG from Orchards Hawaii Inc., which held the 1974 Federal trademark on the name for the juice drink.
Another company, Universal Pogs Association Inc., has sued World Pog, challenging its claim to the sole right to use the name. And World Pog has filed a countersuit.
Last month, Commissioner Jane D. Myers of Orange County Superior Court prohibited Universal Pogs from using the name until the case is decided in November. Commissioner Myers also required World Pog to post a $350,000 bond to cover potential damages to Universal Pogs's business should the court decide that the word had become a generic term.
World Pog contends that it competed with several other companies to obtain the rights to the POG trademark and that the generic name for the game is Milk Caps. The company says it is merely doing what many other companies have done when their names or the names of their products have been adopted by the public as generic names.

'Policing the Mark'
In a practice know as "policing the mark," such companies aggressively assert the exclusive right to their trademark, both in court and with consumers.
The Xerox Corporation and the Coca-Cola Company, for example, have spent millions of dollars policing their mark and educating the public that only their products can be called a Xerox or a Coke. More recently, Rollerblades Inc., the inventor of in-line skates, has successfully fought similar infringements.
While pieces of a child's game may seem trivial in such a context, the battle over Pog is evolving into one of the fiercest intellectual property battles in recent years.
"The company that controls the trademark will have a de facto monopoly," said Robert Lind, a trademark specialist at Southwestern University School of Law in Los Angeles. "This is a game that has generated a lot of excitement with children, and being able to use the word 'Pog' will have a tremendous effect on any producer's bottom line."

Competing Arguments
A World Pog lawyer, Michael Eidel, argues: "Our use of the word extends back to 1972 and the beginnings of the juice -- passion fruit, orange and guava. We acquired the rights, and we have consistently policed the mark."
Joe Kaufenberg, president of Universal Pogs, counters that the name Pog was in common usage long before World Pog began to produce the disks, and that all producers should be able to use the term.
"It's like trying to trademark the word 'card' or 'candy bar,' " he said, adding that it is another example of "the big guy" trying to take "the fun away from the kids."
Whatever the lawyers' other arguments, trademark experts say the decision may fall to the children who collect the disks, because the court will probably base its decision about whether the name is generic on the results of consumer surveys. They note that the words "aspirin," "thermos," "escalator" and "zipper" were all trademark names before the public co-opted them. It is only by vigilantly policing their marks, they say, that manufacturers have been able to retain trademarks on names like Styrofoam and Kleenex.
But David Stewart, a professor of marketing at the University of Southern California, said Pog had already become "a national institution for many kids and a big business for many adults," adding, "It is going to be very difficult to make the claim that Pog has a singular owner."
Although the issue is expected to be decided by an Orange County jury in the fall, the children who play the game and collect the disks seem bemused by the debate.

Provoking Pog Purveyors
"A pog's a pog," said Michael Dennis, an 11-year-old collector in Covina, Calif. When asked if the World Pog Federation owned the word, Michael's friend Cody Le Fevre, also 11, said: "Who's that? I don't think I have any of their pogs."
Cody said his current favorite was the O. J. Slammer, which lets children declare the guilt or innocence of O. J. Simpson based on which side lands face up.
Pogdom has not been a pleasant place since the trademark dispute began. People adopt hushed tones as they tell of fist fights and threats since World Pog began trying to police the mark.
In one incident, a photographer working for World Pog took pictures of booths advertising competitors' pogs and then handed all the booth owners cease and desist letters. Angry Pog purveyors led the photographer out of the arena by his camera strap.
Larry Watkins is among the more than 150 dealers who gather to sell and trade the disks along with baseball cards and comic books twice a week at Frank & Son Trucking and Warehouse in Walnut, Calif., 35 miles east of Los Angeles. On an average night a dealer can sell about 300 pogs and 100 slammers, incentive enough for Mr. Watkins to caution that he carried "protection" and that World Pog should steer clear of his stand.
"You can't own Pog anyway," Mr. Watkins said, holding up an O. J. Slammer. "It's too big -- bigger than sliced bread, bigger than girls."