Who is a Parent?

Who is a parent?  That question has been defined, albeit poorly, in New York jurisprudence for last twenty-five years as a person with either an adoptive or biological connection with a child.  This narrow and limited scope of the definition of parent has just been changed by the Court of Appeals in the landmark decision this week in the companion cases of In the Matter of Brooke S.B. v. Elizabeth A. C.C. and In the Matter of Estrellita A. v. Jennifer L.D. (Click Here to Read Decision)

For the first time, New York can now grant a non-adoptive, non-biological partner, who shows by clear and convincing evidence that both parties agreed to conceive a child and to raise the child together, the legal status of parent.  This will then allow that non-adoptive, non-biological partner, who has been active in establishing a relationship with child the opportunity and right to seek custody and/or visitation with the child upon an unfortunate breakup of the relationship with the biological or adoptive partner.

This remarkably overdue and groundbreaking decision was sorely needed in today’s ever growing landscape of non-traditional families in Long Island and New York State.  This ruling brings New York, a state with a large LGBTQ population, in line with many states across the country, including several conservative states like Oklahoma and South Carolina that already permit non-adoptive, non-biological parents to ask for custody and visitation rights.   As a result of the outdated definition of parent, many peculiar decisions have been handed down, demonstrating a fundamental and disproportionate unfairness to those families headed by same-sex couples, unmarried opposite-sex couples and stepparents.

For example, under the old rule a non-adoptive, non-biological “parent” would be liable for child support for the child but not be entitled to enforce custody or visitation rights for the same child.  The fact that visitation for the non-adoptive, non-biological “parent” might be in the best interests of the child was non-determinative because the non-adoptive, non-biological “parent” would not have standing to enforce visitation in the first place.

Obviously such a dichotomy of justice is untenable and was foreshadowed in the extraordinary dissent by Judge Judith Kaye in the original, and now overturned, 1991 Court of Appeals decision in In the Matter of Alison D. v Virginia M, 77 NY2d 651 (1991).  (Link to Decision here: https://www.law.cornell.edu/nyctap/I91_0072.htm).  The forward looking Judge Kaye observed then, at a time when same-sex couples could not marry or a biological parent’s unmarried partner adopt the child that such a narrow and harsh rule would cause a great hardship to a specific and growing number of families.

One crucially important caveat is that the decision is limited to partners who enter into a pre-conception agreement to have and raise a child together.  The Court left open the proper test for standing for custody and visitation for those partners who consent to the creation of a parent-like relationship after conception of the child.  However, it is likely that future cases will now proceed along the same vein of reasoning as this decision.

While the ruling is certainly a major victory for LGBT families across Long Island and New York, it is also a victory for thousands of non-adoptive and non-biological heterosexual parents as well.  These families will now be able to have standing to seek custody and visitation with children that they have raised and established a loving relationship with despite the fact that they are not biological or adoptive parents.  Truly, for the first time, the best interests of the child can prevail.

Snapchat: The Need for More Penalties for Distracted Driving

In New York State, a driver is not permitted to use his/her phone (or other portable handheld device) to talk, text, play games or to take pictures while operating a motor vehicle.  Fines for violation of this law can reach $150 for even a first offense. Is that fine high enough for the many types of distracted driving?

It has long been a known fact that the law often fails to keep up with technology. As technology advances and types of apps used by individuals on their phone changes, the law struggles to match pace.  A classic example of this failure is the rise of Snapchat and the dangers it poses to every driver on the road.

Most New Yorkers are aware that they can use their cell phone to text and send pictures to others using their phone with relative ease.  Most are also aware that you can send messages through a number of different apps on their phone including Facebook, Twitter, and LinkedIn, among others.

snapchat distracted driving, Michael B. Schulman, Melville, New York, attorney

However, there is another newer app that is growing in seemingly ever-increasing popularity, especially among the younger generation: Snapchat.

Snapchat is a picture sharing app that can be downloaded on both Apple and Android phones. It functions like many other apps and is designed to share pictures between users with a quick caption.  The catch however, is that whichever phone apps download the Snapchat picture they can no longer look at the picture at their leisure and save it to the file their phone, as Snapchat only makes the picture available on the phone for a maximum of 10 seconds once it has been opened.  Afterwards, the “snap” is deleted.  A user can save the picture in their phone, but only if they act quickly enough to save it before the 10-second timer expires.  In addition, the snap must be opened within 24 hours, or the snap will be deleted before it is even viewed. This adds a certain sense of urgency for Snapchat users to stay on the app and see the pictures that are made available for a limited time.

So now, if you are a young (or old) driver who receives a snap, this understandably creates a sense of urgency to open and view the picture as quickly as possible and attempt to save it before the picture is deleted forever.  This would therefore pose an even greater danger to a driver who opts to view a picture on Snapchat rather than on more “traditional” forms of distracted driving.

The more “traditional” forms of distracted driving such as reading a text, speaking on the phone or even viewing a picture message, while certainly not safe by any stretch, and rightfully outlawed, at least allow a driver to swivel between the road and their phone.  Snapchat does not afford a driver that opportunity.

In a 10-second window, a driver being distracted by “traditional” means may alternate between their phone and the road multiple times without fear of missing the message.  However, a Snapchat user, due to the rules of the app, will be more focused on the picture to view and attempt to save the snap before time expires and spend considerably less time focused on the road.  As every driver knows, a lot can happen on the road in ten seconds.

Due to the nature of Snapchat and the unique potential danger it poses by its functionality, it is arguably much more dangerous than the traditional forms of distracted driving.  Because of this increased danger are additional penalties needed for drivers who knowingly engage in such behavior?

On one hand, there is the argument that distracted driving is distracted driving and a law is already in place that is designed to curtail the practice.  On the other hand is the fact that lawmakers did not know or consider the implications of such an app when the law was made.

Litigation: the Boxing Match That Never Ends

Litigation can often be a boxing match that never ends. Imagine a scenario where you are a professional boxer in a boxing match. You start the match feeling very confident. You throw a straight punch followed by a hook, and then you pull a haymaker and a mixture of other punches that have other names of an unknown origin. To your surprise, however, your opponent pulls a Bolo punch, and you find yourself on the floor. Ready to throw in the towel, you do so, and the referee ends the match.

That’s the end of it, right? Well, no. Your opponent continues to hammer you, relentlessly. Refusing to acknowledge your surrender.  What would you say about such a scenario? What if you were to be told that such scenarios often occur in the world of litigation?

In the event you get sued, you have two options: litigate the case or settle it. You may decide to litigate, but in this scenario you settle, at which point, you enter into a settlement agreement.

You do your part and abide by the terms of the settlement. To your astonishment, however, your opponent does not discontinue the case, despite your compliance and the settlement agreement. How would that make you feel? That is exactly what transpired in the case of Martin v Harrington, 2016 NY Slip Op 04027 [2d Dept May 25, 2016].

In the Martin case, neighbors had a property line dispute. Martin claimed that due to improvements made by Harrington on his property, which included an asphalt driveway, Harrington encroached and trespassed on her property.

The neighbors fought it out in court for about six months. The parties finally agreed to settle the case. The proposition to settle was initiated by Martin’s counsel. The attorney for Martin sent a letter to Harrington proposing to settle the matter; Martin would discontinue the case if Harrington were to satisfy certain conditions. Harrington agreed and satisfied the conditions including removal of the encroachment, which cost him over $5,500.00.

About three years later, Martin complained to Harrington that he is still encroaching upon her property. Harrington’s position was that he satisfied the conditions as agreed upon. To Harrington’s surprise, Martin did not discontinue the case despite complying with the conditions.

It is parallel to our analogy with the boxer; you tap out, but your opponent is still throwing punches at you. Harrington moved the court to enforce the settlement agreement and dismiss the case as settled. Martin (who wants to have her cake and eat it too) claimed that the settlement agreement is not binding.

New York Civil Practice Law and Rules defines what constitutes a binding settlement agreement. An agreement is binding upon a party if it is in writing and signed by the party or the party’s attorney. Furthermore, the settlement agreement must contain all the material terms and must be clear that there is a mutual accord between the parties.

In the Martin case, the material terms were contained in the letter that was sent from Martin’s attorney to Harrington’s attorney. Based upon the correspondence between the attorneys, Harrington performed the tasks set forth within the settlement. Martin never objected to the settlement or to Harrington’s compliance with the conditions. The court in the Martin case therefore concluded that the settlement agreement is indeed enforceable and confirmed the dismissal of the action.

The lesson to be learned here is to make sure that your attorney is careful to ensure that the settlement agreement is absolutely binding, and then to follow-up and verify that the case is discontinued upon satisfaction of the settlement terms. You do not want to be in the position of the boxer that is being pummeled while down.

Renting a Car, Know Your Rights

You are on vacation, and like most people you rent a car. As part of the rental process, you show the agent at the counter your driver’s license. You are asked, “are there going to be any other drivers of the vehicle?” and you say “no, just me” before leaving with the car. The question you should be asking is: if you are renting a car, do you know your rights?

Now let’s say you are traveling with a spouse, a friend, a significant other, or any other properly licensed driver, and they ask you if they can take the car just to “pick something up; they’ll be right back”.

Sound familiar?

Now let’s say that the unregistered driver of the rental car gets into an accident and causes damage to a third party or to the car you rented, which you know would be completely covered if you were the driver.

The insurance company now tells you that you are personally responsible for the damages to the car and/or third party because you let “an unauthorized” person driver operate the rented car.

DON’T FALL FOR THAT LINE! Under New York State Law, you are protected.

New York State Vehicle and Traffic Law (VTL) section 370 requires rental car companies to provide insurance for their vehicles, including minimum liability coverage for bodily injury. The VTL further requires that such insurance “insure to the benefit” of the permissive user of the vehicle.

The New York State Court of Appeals held in MVAIC v Continental Nat’l. Am. Group Co. that where the lessee of a rental vehicle PERMITS another person to operate it, the rental company is deemed to have constructively consented to such use, and here is the important part, folks, that is EVEN WHERE THE LEASE VIOLATED THE RENTAL AGREEMENT BY ENTRUSTING THE RENTAL CAR TO ANOTHER.

In following the lead of the Court of Appeals, the Appellate Division of the State of New York, stated in Lancer Ins. Co. v Republic Franklin Ins Co., the fact the lessee was the only individual expressly authorized to operate the rental car in the case does not make the driver a non-permissive.

Know your rights? Do not assume the insurance company of the rental car company is protecting you or your rights.

For any further questions, or any other issues, please contact us at 631-622-2080 and please like us on Facebookfor more great law insight.

 

“Renting a Car, Know Your Rights” was written by Michael B. Schulman, Managing Attorney.

Michael B. Schulman is now a licensed Real Estate Broker in the State of New York

We are pleased to announce that Michael B. Schulman is now a licensed Real Estate Broker in the State of New York. As always, Michael B. Schulman & Associates, P.C. is here to assist you with regard to any real estate transaction from the time of sale to closing, or to assist in your obtaining a lease for residential or commercial spaces. Please feel free to contact us at 631-622-2080.

Maybe you are a first time buyer or seller of a home, condo or coop.  Maybe you are buying a property to flip. Whether it is a short sale, a multi-family home or a commercial property, you want to work with a group of lawyers who are competent and knowledgeable with regard the various transactions.  Michael B. Schulman & Associates, P.C. pride themselves on  representing  you and only you. We do not represent the bank or lending institution. You can rest assured of getting our complete and undivided loyalty and attention.

Our attorneys will review and prepare all of the necessary documents to ensure you a proper closing. From the contract to loan application, the  title report to the final closing documents, the attorneys at Michael B. Schulman & Associates look to eliminate any “cloud” on title. We review the survey and legal description to make sure they match. We look to make sure that there are no open permits, building applications or violations and see to it that the building has all of the proper certificates.

If there are any obstacles prior to closing, whether you are the seller or buyer, we have the expertise to help you overcome those obstacles. 

If you are a Landlord of a multi-family unit, single family unit or commercial property, Michael B. Schulman & Associates can assist you in reviewing and/or drafting the lease to ensure that the terms are what you want, prior to you signing. 

Our goal at Michael B. Schulman & Associates is to consummate the deal. However, as we all know, sometimes things do not go as planned. If the necessity arises we carefully prepared to litigate a deal that goes “bust”.

Michael is a well-respected attorney in the community who has obtained a wealth of experience in his 30 plus years as a New York attorney. As the founding member of the firm, Michael has taken it upon himself to embody the cornerstone motif of “Professional, Personal and Proficient” in all aspects of his life.

Michael is happily married with two grown children and four small dogs. He is eagerly awaiting the arrival of his first grandchild due in the summer of 2015.

An avid golfer who loves to show off his framed “Hole in One” ball, Michael is a proud member of the Old Westbury Golf and Country Club where he was treasurer and held a position on the Board of Governors. Michael enjoys working in his yard, creative carpentry and traveling when the opportunity arises.

Unlike Michael roots for the underdogs, like the NY Mets. Baseball season brings out a “healthy competition” in the office.

 

“Michael B. Schulman is now a licensed Real Estate Broker in the State of New York” was written by Michael B. Schulman, Managing Attorney.

Michael B. Schulman Procures Copyright for Client’s New Game

Michael B. Schulman and Associates have recently helped a client procure the copyright for a new game titled, ‘How To Play Dicetown, A Totally Player Friendly Game’.

This is just one of the many specialties of what we do as a firm. Business law, even in the sense of intellectual property or copyrighting can be complex. Relying on someone with a wealth of experience to handle all of the nuances to specialty law cases is vital to successfully helping a client.

In this case, a local Long Island business from Bayshore, New York, Dicetown Gaming Technologies, Inc., has benefited from the protection of a copyright.

Copyrighting games can be tricky, in and of itself, and the US Copyright Office gives a great breakdown of some of the myriad variables:

Copyright does not protect the idea for a game, its name or title, or the method or methods for playing it. Nor does copyright protect any idea, system, method, device, or trademark material involved in developing, merchandising, or playing a game. Once a game has been made public, nothing in the copyright law prevents others from developing another game based on similar principles. Copyright protects only the particular manner of an author’s expression in literary, artistic, or musical form.

Material prepared in connection with a game may be subject to copyright if it contains a sufficient amount of literary or pictorial expression. For example, the text matter describing the rules of the game or the pictorial matter appearing on the gameboard or container may be registrable.

If your game includes any written element, such as instructions or directions, the Copyright Office recommends that you apply to register it as a literary work. Doing so will allow you to register all copyrightable parts of the game, including any pictorial elements. When the copyrightable elements of the game consist predominantly of pictorial matter, you should apply to register it as a work of the visual arts.

The deposit requirements for copyright registration will vary, depending on whether the work has been published at the time of registration. If the game is published, the proper deposit is one complete copy of the work. If, however, the game is published in a box larger than 12″ x 24″ x 6″ (or a total of 1,728 cubic inches) then identifying material must be submitted in lieu of the entire game. (See “identifying material” below.) If the game is published and contains fewer than three three-dimensional elements, then identifying material for those parts must be submitted in lieu of those parts. If the game is unpublished, either one copy of the game or identifying material should be deposited.

Identifying material deposited to represent the game or its three-dimensional parts usually consists of photographs, photostats, slides, drawings, or other two-dimensional representations of the work. The identifying material should include as many pieces as necessary to show the entire copyrightable content of the work, including the copyright notice if it appears on the work. All pieces of identifying material other than transparencies must be no less than 3″ x 3″ in size, and not more than 9″ x 12″, but preferably 8″ x 10″. At least one piece of identifying material must, on its front, back, or mount, indicate the title of the work and an exact measurement of one or more dimensions of the work.

 

“Michael B. Schulman Procures Copyright for Client’s New Game” was written by Michael B. Schulman, Managing Attorney

Reaching a Verdict: Your Part in the Jury Process

Arriving home you find a Jury Summons in the mail, and immediately there is an image that comes to mind of sitting in a big room waiting to be called as part of a jury panel to start the selection process; for the jury, process is the operative word.  You are called, hopefully on the first day of your jury requirement, and you are now selected to sit on a jury.

The judge gives you the opening instructions to keep an open mind and to listen to the testimony and the other evidence.  All the while you are sitting in a chair within the juror box, listening to lawyers, witnesses, and a judge conduct a trial like actors in a play or a TV show.

But sitting through a trial as a juror is only part of the process.  After the trial is over, the judge now gives you the charge.  This is the law that you MUST apply to the facts to reach your verdict. You, as a juror, do not have the option of whether or not to apply the law.

The jury retires to render a verdict based upon all the evidence presented throughout the trial and the law as given to them by the judge.  The verdict phase may be complicated.

For anyone that is to sit on a jury, the discussion below will shed light upon the path of reaching a verdict.

One thing that you must do is weigh the credibility of the testimony of the witnesses that were called during the trial.  “Falsus in Uno” is a very important principal of law that may be applied by the jury in weighing the evidence. “Falsus in Uno” states that if a witness willfully testifies falsely to an important matter, then the jury may disregard the entire testimony of that witness. The rational underlying the above principal is that if a person lies about an important fact, then he/she is likely to lie about everything else. The jury may however still sift through the testimony of the lying witness and decide which parts are not to be believed as being truthful.  What to believe and how much of a witness’s testimony is credible is SOLELY within the purview of the jury, as the trier of fact.

The jury must also be instructed about the burdens of proof.  In civil litigation, the plaintiff has the burden of proof.

What does that mean?

The burden of proof requires that the plaintiff establish, by preponderance of credible evidence, that the plaintiff’s claim is true. Credible evidence is defined as the testimony and exhibits what the jury deems believable. Preponderance of credible evidence means that the greater weight of the evidence leans in favor of a party’s position.

What matters in “balancing the evidence” is not the number of witnesses or exhibits, but the quality of the evidence. The more convincing and believable a given testimony or exhibit is, the greater the quality of that evidence.  Therefore, if the evidence in support of plaintiff’s claim appears more likely to indicate what transpired than the evidence opposing the plaintiff, then the jury must find in favor of the plaintiff. The above finding is considered by preponderance of credible the evidence.

If the jury finds the supporting evidence to be even with the opposing evidence or tilting in favor of the defendant, even slightly, then the jury must find in favor of the defendant.

However, in order to return to the court with an acceptable verdict, five-six of the jurors should be in agreement. The jury will continue deliberation until five-six of the jurors agree. In the event that the jurors cannot come to an agreement, the jury may be discharged as long as they deliberated for a reasonable time. At that point the courtmay direct a new trial.

There are instances where both the plaintiff and the defendants have the burden of proof.

For example, in a case involving an accident, the plaintiff may claim that the defendant caused the accident and the defendant may claim either that the plaintiff was the sole cause of the accident or that the defendant is not the sole cause, but rather the plaintiff is also at cause. In response to defendant’s claim of co-liability, the plaintiff may claim that the defendant’s action is the substantial factor causing the liability. The plaintiff has the burden of proving that the defendant is negligent and a substantial factor in causing the accident. The defendant has the burden of proving that the plaintiff was negligent and a substantial factor in causing the accident.

The following scenario may arise in an automobile accident.

The defendant who is the owner of a car involved in an accident may claim that the driver was driving the car without his/her permission. However, there is a legal presumption that the driver drove the car with the permission of the defendant-owner. The plaintiff has the burden of proving that the defendant is the owner. Once the plaintiff met his/her initial burden, the presumption is triggered and the defendant-owner then has the burden of overcoming the above presumption. The defendant-owner is not typically held responsible for the acts of another person who drove the car without his/her permission. If the defendant-owner is able to overcome the presumption, then the plaintiff has the burden of proving that the driver had the permission of the defendant-owner to drive the car.

In certain cases, the jury must find that the plaintiff has met his/her burden of proof by clear and convincing evidence in order to return a favorable verdict. The standard of clear and convincing evidence is a higher burden than by preponderance of the evidence. Clear and convincing evidence means that there is sufficient evidence demonstrating a high probability that the incident occurred as claimed by the plaintiff. The standard of clear and convincing evidence is a higher burden than by preponderance of the evidence.

Examples of claims that require a burden of proof by clear and convincing evidence are:  fraud, malice, contracts between plaintiff and a deceased, incompetence, terminating life support for terminally ill patient, implied easement, title by adverse possession, contract reformation, appointment of temporary receiver, and paternity.

In deciding upon a verdict, sympathy for any of the parties is not to dictate their decision. The jury is not to take into account public reaction to their verdict. Whether or not their verdict will be viewed as popular is irrelevant. The above instruction goes to the principle that the only consideration to be taken into account while deliberating is the evidence presented during trial.

There are instances where a trial is split into two phases, the liability phase and the damages phase.  In the liability phase, the jurors will answer the question of who is responsible for the incident being litigated, i.e who is at fault and to what extent each party is at fault. The jurors do not consider the extent of the damages sustained during this liability phase. Any testimony regarding injury is not relevant and therefore must be disregarded by the jurors.

There are also unique situations where the jurors must be given special instructions. The jurors may be sitting in on a retrial. A retrial is where the case has been tried before, and for whatever reason, the case must be tried again. The jurors are not to draw any inferences from the fact that the case is being retried and the reasons for retrial.

The above is a snapshot of what is involved in rendering a verdict in numerous circumstances. Serving as a juror may seem overwhelming, especially when a person’s property and pursuit of happiness is being litigated, but sticking to the instructions that the judge gives and following the trial closely will greatly help the call for justice.

 

“Reaching a Verdict: Your Part in the Jury Process” was written by Posted by Michael B Schulman, Managing Attorney

A Juror Grappling With The Evidence

A Juror Grappling With The Evidence:  While serving as a juror, you will be presented with a wave of evidence that you are expected to consider and draw conclusions from. At times, the evidence may be overwhelming, and so taking a structured approach is helpful to making sense of it all.

A juror need not accept all the evidence admitted in trial as true. Rather the juror must evaluate the testimony and decide how much weight to assign to a given testimony surrounding each piece of evidence. It is important to keep in mind that a testimony may not be reflective of reality. For example, the witness may be lying, or he or she did not accurately observe the events as they transpired. The witness’s memory may have faded, or he or she may not have been clear about the facts, which could, in a juror’s mind, lessen the weight given to such evidence. There is not a set rule based upon which a juror is supposed to evaluate the evidence. A juror is expected to decide the reliability of information based upon the tests he or she applies on a daily basis, and this is molded by their life experiences and background.

There are various questions that a juror should answer about a given witness when weighing the witness’s testimony: (1) whether the witness has an interest in the outcome of the case; (2) whether the witness has a bias or prejudice; (3) the age of the witness; (4) the appearance of the witness; (5) the demeanor of the witness when relaying his or her testimony; (6) the opportunity and the circumstance under which the witness observed the facts he or she is testifying to; and (7) the probability of the witness’s testimony in light of the remaining evidence.

The evidence presented may conflict with other evidence. Therefore, the juror should try to reconcile the evidence, weighing it all in turn. However, if the juror is unable to fit the conflicting evidence, then the juror must decide which evidence to accept and which evidence to reject.

At times, a given testimony is not contradicted with an opposing testimony, but still appears unproven. A jurordoes not need to accept unopposed testimony. Each member of the jury must assign weight to the testimony, especially when it is not opposed, and a juror can reject the testimony in its entirety, as untrue, if they so deem. The important thing to remember as a juror is to weigh each testimony and each piece of evidence.

A case may involve events that have occurred at a certain location. The juror should refrain from visiting the location, because the present condition of the location may be different from what it was at the time that the events occurred. Therefore, the juror must rely only upon the evidence presented at trial in order to assess the condition and circumstance under which the events occurred.

A case may also involve heightened media attention.   Therefore, if necessary, a juror may be instructed to refrain from gathering information about the case through the newspaper, radio, television, or social media. A juror is not permitted to conduct his or her own research about a given matter or topic, whether through books, magazines or the Internet. As a precaution, the juror is asked to turn off electronic devices. As mentioned above, the juror must only draw his or her conclusions from the evidence admitted at trial.

Do not be overwhelmed. Remember, there are other jurors with whom you will have the opportunity to discuss and assess the evidence. You are not on your own.

 

“A Juror Grappling With The Evidence” was Posted by Michael B Schulman, Managing Attorney

What NY Attorney General Ruling on DraftKings & FanDuel Means for You

This week’s announcement from the New York State Attorney General’s office that ruled that daily fantasy sports games, specifically those runs by DraftKings and FanDuel, constituted illegal gambling has left many fantasy sports fans on Long Island and throughout the state of New York wondering exactly what this means for them. Eric Schneiderman, the NY Attorney General, issued a cease and desist letter to both companies ordering them to stop accepting wagers from New York residents. Meanwhile, both FanDuel and DraftKings have fired back stating their intent to fight the ruling and already high-powered attorneys have been hired to represent them in the upcoming legal battle royale.

For those unfamiliar with the popular trend of fantasy sports, the traditional method includes a group of individuals drafting players in a particular sport, most commonly football, baseball, hockey, and/or basketball, and assembling a roster of their own fantasy team that competes against the roster of the other participants in the league. Traditionally, this occurred over the course of an entire season and also involved the adding, dropping and trading of players over the course of that season. Since their origin in the 1980s, fantasy sports have become so popular that millions of Americans compete in leagues each year, and the subject became the basis for a sitcom on FX called The League, which has run for nearly a decade.

However, the newest take on traditional fantasy sports only arose in the past decade, and these “daily fantasy leagues” in question are significantly different than their league-long counterparts. Instead of competing over several months in a season, a daily fantasy player competes in a season that is only one day or one week at a time.

The central focus point at issue is whether daily fantasy sports are considered a game of skill or a game of chance, i.e. gambling. New York has taken the position that daily fantasy sports represent a game of chance in which the player has no control over the outcome of his wager. In essence, New York is claiming that picking a daily fantasy roster is the same thing as playing the lottery. You buy a ticket and from that point forward all results are purely random.

Conversely, DraftKings and FanDuel state that daily fantasy sports is a much more involved game of skill. Their theory is that the winners tend to be those with intense knowledge of the game, the players, the teams, and the attention to detail that fantasy owners bring. They claim there is skill involved in picking which players for your roster in a given day and daily fantasy gamers use that skill and knowledge to perfect their entries and ultimately win the big prizes.

Both sides appear to be digging in their heals on this distinction. Several large investors in both the sports world and corporate America back DraftKings and FanDuel; some of these include but are not limited to Major League Baseball, the NFL, the NBA, Google Capital, Fox Sports, Jerry Jones (owner of the Dallas Cowboys), and Robert Kraft (owner of the New England Patriots). While few would argue that there is not at least some knowledge and skill involved in knowing which matchups would be more likely for success than others in a daily fantasy league, the same can be said for other traditional gambling games of chance such as the table games poker, blackjack, or craps, which are all illegal in New York. Ultimately, the courts will decide in which category daily fantasy sports belongs.

For the approximately 600,000 New York residents registered on the two sites, the big question on their minds is whether they can continue to play daily fantasy sports on these sites. For now, the answer appears to be yes. Both DraftKings and FanDuel are continuing to accept entries from New York, but they still have five days to appeal the Attorney General’s ruling, something they will surely pursue. Once the five days are up, an injunction will likely be requested to keep the sites up and running pending a court ruling. The Attorney General’s office has also made it clear that it is not looking to prosecute the actual users (voters) of the sites, but the sites themselves.

Ultimately, this issue may settle upon regulation rather than abolishment of daily fantasy sports. Similar legislation and regulation is pending and being demanded in other states, such as Nevada and Florida. Even in New York, the State Assembly has petitioned for a task force to examine the industry and determine if an exemption to the New York gambling laws is needed, similar to the horse racing industry and private casinos currently operating in the state.

Stay tuned!

 

“What NY Attorney General Ruling on DraftKings & FanDuel Means for You” was written by Michael B. Schulman, Managing Attorney.

To Be a Juror

We may be selected to report for jury duty, and more often than not, we are not chosen, but when you are, it is important to realize what filling that role means, to be a juror. At one point or another in our life, we have all received a notice asking us to serve on a jury. The jury is charged with the task of deciding which of the case facts have been proven, and based upon the proven facts apply the law to the decision. The jury is not expected to know the law, but rather is given the law by the judge. The jury must apply the law, even if they do not agree with the law, and they are not permitted to turn to outside sources when considering the law. The conclusion drawn upon applying the law to the facts is the verdict.

The jury determines the facts based on testimony and exhibits submitted into evidence throughout the trial. It is the jury’s job to determine and judge these facts. The jury will decide which witnesses to believe. But the jury does not have to believe the entire testimony of a witness and may believe only a portion of it. The jury will then assign weight to the testimony, which is an important part of a juror and a jury’s job as a whole.

The jury is not to take into consideration the attorney’s personal opinion about the facts or witnesses.  Similarly, the jury is not to be swayed by any appearance of partiality on the part of the judge.  The presiding judge is permitted to ask questions to the witnesses, and the judge is supposed to make sure that he or she appears impartial.

Questions to a witness may be objected to and the judge may agree to the objection; therefore the question will not be answered. However, there are instances where the question is answered before there was a chance to object. In that instance, the judge will have the answer stricken or removed from the record. Whether the question is objected to or the answer is stricken, the jury is not to draw any inferences from the unanswered question or a stricken answer. Basically, the jury is expected to make believe that they never heard the question and answer.

Serving as a juror may not be as easy as it seems; after all, we are being asked to be judges of the facts. Being a juror, however, is our civil duty and therefore, we should take the opportunity to fulfill our duty with pride. And most certainly, we will come out having learned something about how our judicial system actually works from a source other than television, radio and pundits.

 

The article “To Be a Juror” was Posted by Michael B Schulman, Managing Attorney