Legally Bond
Legally Bond
An Interview with Mark Berman, Commercial Litigation
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In this episode of Legally Bond, Kim speaks with commercial litigation attorney Mark Berman. Mark discusses his current practice, his past and current roles with the New York State Bar Association and his initiatives with technology and the law.
Law and Technology Intersection Exploration
Speaker 1Hello and welcome to Legally Bond , a podcast presented by the law firm Bond , Shennick and King . I'm your host , Kim Wolf Price . When people think of lawyers , they likely think of courtrooms , clients and witnesses . They may not think of technology in the way that impacts practice . On today's episode we're speaking with Mark Berman , a member in Bond's New York City office . Mark joined the firm this year and is a seasoned commercial litigator , bar leader and lawyer who pays attention to tech and other advancements . Hi , Mark , Welcome to the podcast . Thanks for joining us .
Speaker 2Good morning Kim . It's a pleasure and I look forward to speaking with you today .
Speaker 1Thank you so much . All right , so at the outset , I really do think that maybe we should just tell the listeners that while you recently joined Bond , you and I have been colleagues and friends for , I think , nearly a decade now . Nice to be at the same firm .
Speaker 2Yeah , the two of us have been on many committees of the state bar together , in particular the women in law section , for which Kim is now the chair .
Speaker 1That's true , and you put me on a task force at some point along the way too .
Speaker 2Indeed yes .
Speaker 1So if it sounds like while they know each other , it's true because we actually do . All right . So we were both at different places when we first met and we're going to talk about more about this bar association work and your other work for our profession . That's led us to work together many times throughout the years and really , on your behalf , really is a great service to our profession overall . All right , but before we go further , the tradition on the podcast is that we start the episodes especially with first time guests asking you to tell us a bit about you . So listeners appreciate that and I hope you'll start out . Maybe give us some background about you anything undergrad , law , school , where you grew up , family , whatever you feel is appropriate .
Speaker 2I'm a native New York City person , grew up in Queens , went to public schools , went to Stuyvesant High School . I live in Midtown Manhattan with my lovely wife , brenda , of over 30 years , and my two adolescent boys , one who's in his first year of high school and one who's in his second year of high school . So just everyone think how much fun it was during the pandemic with two boys , myself and my wife in a two bedroom apartment for a year and a half 24 seven . After Stuyvesant I went to Columbia College in Manhattan . Then I went to Benjamin and Cardozo School of Law where I graduated Magna Cum Laude . While in law school there , everyone has heard of the Innocence Project . I'm a little older than the Innocence Project , but I was the first student who did the DNA work for Professor Barry Shek that you didn't know about , kim .
Speaker 1I didn't know about CSY . I love this podcast . I learned something about people I've known for years . I love it and after law school .
Speaker 2then I clerked in the Eastern District of New York for a federal magistrate judge , Spent some years after that at Scatton and then at a small litigation real estate boutique before I came to Botte .
Speaker 1That's very good we all like . If you went through New York City , likely you had to stop at one of those giant law firms along the way .
Speaker 2I did my time .
Speaker 1That's very good , all right . So thanks for that background . I think it's important for people and I think we should always shout out Brenda on any chance we can get .
Speaker 2Yes , she and the boys have been accompanying me to legal events , since the boys were in strollers , so yes , exactly , I did see them at the CompFed Spring event in Philadelphia this year .
Speaker 1I can verify Well . So I mentioned you were a commercial litigator . Was that what you wanted to do when you were studying at Cardozo ?
Speaker 2Didn't know . After Cardozo I clerked for close to three years in the federal courts and that's when I saw my passion , that I wanted to be a commercial litigator . Three years is a little longer than usual for a federal clerkship , but I started the first day my judge took the bench , so I was his first law clerk . So there were no rules , no policies , I just . I was offered to stay as long as I wanted because I was his first law clerk .
Speaker 1Right , so you were , because you were helping him adjust to the bench , so it was important he had not been a judge before .
Speaker 2So the two of us he was learning to be a judge and I was learning to be a law clerk .
Speaker 1Yeah , very good . Oh , my goodness , I didn't realize it was three years . But you're right , it's often for listeners it's one or two , but when judges are new they often ask their clerks to stay because it's an adjustment period at first .
Speaker 2Correct , and it was truly one of the greatest jobs I've ever had .
Speaker 1Oh yeah , it's fantastic . So you were in the Eastern District , you were over in Brooklyn .
Speaker 2I was actually in Long Island .
Speaker 1Oh , what's this my ?
Speaker 2my the magistrate judge I clerked for is now retired . He lives fits his time between Long Island and Florida and we talk or text even now , over 30 years later , maybe once a month .
Speaker 1That's great . See , those relationships are important in the law and in those early parts of your career . And I keep saying commercial litigation and you and I know what that means . But this is a podcast where sometimes non-lawyers listen to it , so will you give an overview of what commercial litigation is for our listeners ?
Speaker 2It's business disputes . I represent business owners , partnerships , lenders , borrowers in breach of contract , partnership disputes , fraud , complex title disputes . I'm either I can represent either the plaintiff or the defendant , because these are really commercial matters . You know some trade secrets , but it's all about money .
Speaker 1Right , it's all about someone wants to get paid .
Speaker 2That's correct .
Speaker 1And so is it like TV . Are you always in court , Mark ?
Speaker 2Before the pandemic I would probably have been in court twice a week , so it's not really every single day . During the pandemic , no one was in court .
Speaker 1That's right . This was court .
Speaker 2I did my commercial my appearances from the dining room table with my sons doing virtual school . So they got to watch their father do oral argument from the dining room table . So now we're you know COVID is over , but now it's . Many appearances still remain virtual . During COVID I did have a seven day bench trial where we I was an in person in Ceregette's court with my colleague Dawn Wilson , who also joined bond with me . We were successful in defendants favor and getting a judgment all for defendants and plaintiff's case dismissed . But during COVID I was also a member of a trial team that had a 40 day virtual trial 40 day virtual Wow .
Speaker 2A day on , a day off , a day off that lasted , you know , over months . The judge was at home , his clerk was in the courthouse and all the attorneys were remote .
Speaker 1Wow , well , that's fits in with this technology conversation . We're happening for sure . So you said businesses are there particular types of clients that you represent , or is it generally all different types of businesses ?
Speaker 2It would be real estate owners , developers , lenders and I do have a niche practice of representing Hollywood stars , Wow In their real estate disputes . I somewhat live under a rock . But so when I get on referred one of these Hollywood stars , when you're a Hollywood star and you have a lot of money , what do you do ? You buy a very , very , very expensive apartment or co-op or condo in the city .
Speaker 1The ones that I look at online all the time .
Speaker 2And with that there are disputes . So I've been in some apartments where sitting on the mantle is an Oscar which was sort of cool to look at .
Speaker 1That's really cool yeah .
Speaker 2So , but it's lenders , borrowers , title companies , insurers , business owners yeah , there are the type of clients I generally represent .
Speaker 1All right . Well , you started talking about this a little bit , but you know , we at Litigation for those who are lawyers or in law school we think of writing and research , investigation , discovery , settlements , maybe even mediation . But in recent years , something that's come into play more and more is innovation and technology . That's become an important part of every aspect of Litigation , hasn't it , mark ?
Speaker 2Yes , I became involved in the technology aspect of the law , having one of the first email cases in New York State . I have a science background but not a computer background , but it was fascinating really to be at one of those groundbreaking first email cases , and the rest is history . I got hooked on technology when the state bar created their first committee on law and technology . I was asked to be the founding chair of that committee , where I remained that chair for many years . During that time , and because of that first e-discovery case , I had proposed to the law journal a column on e-discovery , a column going for about 15 years , writing on all aspects of state law , e-discovery .
Speaker 2And then something crazy happened , kim COVID , and I said I don't want to do this e-discovery column anymore . How about I change that ? And I write a column on the virtual lawyer , right , because that's our new world . So being the columnist for the virtual lawyer has been fun . I recently wrote on cybersecurity and negligence causes of action . I've written on virtual platforms . I've written on virtual trials and virtual depositions , on artificial intelligence Everything lawyers need to know about a virtual practice of law and I have that column every other month , the first Tuesday , every other month of the year .
Speaker 1So we can still celebrate like the 20th anniversary of your monthly column that is absolutely correct .
Speaker 2My understanding is I am the second longest columnist in the law journal at this point in time .
Speaker 1That's fantastic . That's fantastic . And you mentioned e-discovery and you and I know what that is , but do you want to talk ? Just give a quick definition of that for people who are listening .
Speaker 2Let's call e-discovery is electronically stored information , data , emails , text , social media . It's the storage , search , collection and production in litigation . So one can imagine all the issues that arise from storing it , collecting it , finding it , producing it and turning it over .
Speaker 1I still have so many vivid memories of being an associate in e-discovery and I think I can still call up certain emails verbatim if required to do so You're younger than me , kim , because when I started it was called going through a file cabinet . It was bucket memos right .
Speaker 2You sit in the room with no windows and you go through file cabinet after file cabinet .
Speaker 1Still no windows . Still no windows . That was still the thing . Well , so I want to back up just a little bit from there , because you mentioned that you had the first email case . But social media becomes a real issue and has over the years , for lawyers as well , and the social media legal ethics guidelines from the Commercial and Federal Litigation section you created and you were a leader in that area for many years . Can you talk briefly about this ?
Speaker 2I woke up one morning and I said lawyers are involved in social media and there are no guidelines , there's nothing to tell a lawyer what's ethical and not ethical , and given advice . And that was in 2014 and we spent a year or two so it came out in 2014, . So I probably came up with the idea in 2012 , because doing the first version of this took a lot of time . It was the first treatise in the United States on social media legal ethics . It's now in its third version and it teaches and educates lawyers how to communicate with witnesses over social media , the rules of engagement of following jurors over social media , how to advise clients ethically on social media policies . The report has been cited in decisions , law review articles , other legal ethics opinions and it remains really a very proud of it the primary and leading treatise in the United States on social media legal ethics .
Speaker 1Absolutely . I used it teaching classes for years when I was teaching classes at the law school .
Speaker 2And my understanding is that the next version , version four , is in the works now .
Technology in the Court
Speaker 1I think people should know that when you say you woke up with that idea , I think that's actually probably an exact like you mean it . That's not a euphemism .
Speaker 2No , Kim , I get up every morning at 5am and my head is spinning with ideas .
Speaker 1I know . That's why I'm saying it's real .
Speaker 2I probably did wake up and said this is what needed to be done , and we did it .
Speaker 1Yes , it's fantastic . And then you actually , and you worked some with someone I had been a junior associate with , and that's how I first started to get to know you , ignatius .
Speaker 2Yes , you worked with Ignatius . When the commercial federal litigation section created a social media committee , they appointed me as chair and they asked me who I'd like as co-chair and I suggested Ignatius .
Speaker 1Yeah , and that's how , then how , I met Mark . So so , everyone out there , this is how connections are all made , you know . Stay close to your former colleagues . And just one last thing on this the other big piece that we've talked about since you started those guidelines is that lawyers actually have our rules of professional conduct . We have an ethical duty to stay on top of technology issues , don't we ?
Speaker 2Absolutely , and the lawyer , who does not stay on top of technology and then understanding the implications of them with the rules of professional responsibility , is doing . The lawyer is firm and his client a disservice .
Speaker 1Yeah , absolutely Absolutely . So we're not known as the most progressive profession , maybe , and we have to move things along , and you are a spark in that often . A really important role that you're playing now is in assisting with technology in the court . So correct me if I don't have this right You're commissioner and co-chair of technology on the Court of Appeals Chief Judges Commission to reimagine the future of the New York courts . Is that correct ?
Speaker 2Yes , during the pandemic it became clear that the world was going to change . I was honored to be asked to be the co-chair of technology for the Chief Judges Commission and , of course , kim , they picked as my co-chair your former partner , sharon Purcellio , from your Buffalo office . That's right , I wasn't at bond then , but we had known each other through state bar activities . So Sharon and I worked together for years as co-chairs and while she's retired now we still text . I particularly text her . She's , as you know , an avid golfer , so I particularly text her around six o'clock in the morning on Saturday when I know she's getting ready to tee off .
Speaker 1That's right , exactly , and I just want to say I may have proofread many drafts of this report and a producer , kate , may have done some work on getting these out as well .
Speaker 2My understanding . Yes , you got suckered into it . That is correct .
Speaker 1Well , so why is this commission important ? What's the purpose of the work like sort of beyond the title and what's its importance ?
Speaker 2I mean Chief Judge D Fiori saw the importance of relooking at how justice is dispensed in New York . So this commission was created to research , analyze and to make innovative proposals for the justice system going into the future . And to that end , part of the commission , there was a working group on regulatory and structural innovations , one on appeals , one on technology , one on online platforms . I was co-chair of technology and we started by surveying the judges of New York State to see their comfort level , what they use , what they need to learn , and it was terrific . We had close to 4,000 judges respond to the survey during COVID and from that , sharon and I , as co-chairs , created a bunch of reports analyzing all the data Fast forward .
Speaker 2After this , the commission did not end , because we were working through COVID and as part of the commission , a new working group was created called the post pandemic working group , because we're done with the pandemic and now we have to look forward , and I was honored to be asked to be part of that post pandemic working group . And then , even further , after that , the commission created a court modernization action committee and I am also honored to be on that committee and in that capacity , you know , we are looking forward , implementing ideas , educating the justice and really seeking to improve access to justice , and it's not just for the lawyers of the state , but the citizens of the state and even those citizens , kim , who are unrepresented right to , to ensure that they have the ability to communicate with the courts and prosecute or defend themselves , you know , using technology , and not to be at a disadvantage .
Speaker 1Yeah , absolutely . I mean I think that I'm glad you brought that point up that just sort of studying how technology works in the courts helps with access to justice for everyone , and the groups you've been part of have really been conscious of making sure we're thinking about how unrepresented parties , those who are using legal services , agencies and all people can sort of have that access . It's not just about how can the judges and the lawyers communicate , it's beyond that .
Speaker 2We're going to see a revamped website for the Office of Court Administration that is user friendly Not just the lawyers and the judges for the citizens of New York . There are kiosks being put around the state to give technology I mean , that's just an example to provide technology to the underrepresented or unrepresented . There are many , many proposals that we're working on to implement throughout the state , including e-filing in every county in New York State .
Speaker 1That would be amazing . Yeah , that's great . Well , so I think every law student hears , probably on the first day , or at least in the first week , that your reputation with your adversaries , the courts , your clients , it's invaluable . And that is surely true . But it isn't just your reputation as it , it's also the work you do , right , the client work , but also the service you provide to the profession , don't you think ?
Speaker 2When I was looking for a new position and I was interviewing at Bond , all these things were part of the calculus . I'm a great lawyer but I also add a lot to the profession . And Bond is well known for its participation in New York State Bar Association activities . And when I came aboard I just add another dimension to that . And then , monthly , I put together a program with the commercial division judges around the state , by young lawyers for young lawyers . I've been doing that and continue to do that and I'm committed to educating the younger generation of lawyers .
Speaker 1Right and I think that it's you know , you talked about it , but it goes so far in , of course , moving our profession forward , but it helps your career as well and it provides a richer Experience as a lawyer , I think , to be involved .
Speaker 2I you know I love being a lawyer , but I also love doing my side gig , all my bar association activities . Yeah , I mean you and I have worked together on the women and loss committee . We're now section and all these things are very rewarding and I encourage the younger lawyers To attendees events . As we spoke before , there's an event tomorrow and I've encouraged some of the younger lawyers from the York office to join me at this bar association event .
Speaker 1Yeah , that's great and you can introduce them and show them the value , and I just really think that's Remarkable . Well , so we don't have time to go through all of your service , because it's a lot , which is fantastic . You've chaired the commercial and federal litigation section , you've chaired task forces and many other things , but there are a couple of things I do want to touch on . You mentioned that the New York law journal e-discovery comm , which now became the virtual lawyer which I think in like I don't know , a year and a few months , we're gonna have your 20th anniversary Celebration it's sure .
Speaker 1Yes , all right , but that I also . I do want to touch on the commercial and federal litigation section , and if I slip in , listeners to call it comfed . That's what we call it .
Speaker 1But the report and you mentioned that I'm chair of the women in law section but I'm also a female attorney who was a litigator for a long time . So the report , if not now , when ? And your involvement with that , and the women's initiatives of the borough association , but also the creation of New York cyber security and data privacy CLE . So if we could touch on those two things sort of before I let you go and then have to bring you back again another time . But I know very well what the report is and what it's about and how important it is . But I'd hope you talk a little bit about , if not now , when , and the importance of that report when I was a chair
Promoting Women in the Legal Profession
Speaker 1.
Speaker 2That's when this report came out and it was the first empirical study of the role of women commercial litigators in New York State . When I say empirical , we surveyed all the judges in New York State to get the numbers and they weren't good . They demonstrated that while more than 50% of the graduates of law schools in our state are women , the percentage of commercial litigation litigators who are women was really quite poor . We looked at both courts and and orbital forums on orbit arbitrators and that's what made this report unusual , because it was data-based and the result was not very did not look good . The report was then presented to the state House of Delegates , received overwhelming support and with recommendations to encourage women and to promote women into commercial litigation , and Then it went to the ABA where it was adopted .
Speaker 2As part of my tenure and working on the women's initiative , I created the Shira Shinland Award , which is given to senior women attorneys who are commercial litigators in the state . By happenstance , that award ceremony is tomorrow also part of that for junior women lawyers the case scholars , where a series of junior women are presented with scholarship opportunities , and tomorrow those junior women will put on a sort of mock trial In the federal courthouse in New York and they will be judged by the senior women litigators . And that's this all started as what I was chair and it continues every year in November . It was chosen in November Because that's when the women got the right to vote in New York State , so the event sort of corresponds when the date that women got the right to vote , you know , more than a hundred years ago .
Speaker 1That's fantastic , and there's been a second iteration of the report and it's something that I've actually talked to many judges who said they've changed their court rules to make sure that more women are getting time .
Speaker 2As a result of the report , state and federal judges have changed their local practice rules to encourage junior not just women , but junior lawyers to participate . Historically , judges don't particularly like multiple arguers on the same motion , but they encourage that if the senior lawyer brings a junior lawyer with them . I was in court once and I came with a junior female lawyer and the judge who knows who I am and knows about the report looked at me and said I assume you're going to have blah blah blah argue . And I said to the judge your Honor , I could not stand here after being the chair who promoted this and not have my colleague ready to argue the motion .
Speaker 1That's right .
Speaker 2Your Honor , you can't bait me that way . And she argued the motion .
Speaker 1That's right , because you don't just talk the talk , you walk the walk .
Speaker 2I walk the walk Absolutely right . The other item you asked about is part of my role in the state bar in technology . I created , I designed and I argued for New York's mandatory CLE requirements to have a credit in cybersecurity and data privacy . That was a heavy lift convincing the state bar to the grassroots . It didn't add a credit , but lawyers don't like being told what to do . We hate that and you know . But it passed the House of Delegates overwhelmingly and then I presented it to the New York CLE board and voila , as of 2023 , we now have a CLE requirement in cybersecurity for one credit and we are the only state in the United States that has that .
Speaker 1That's right . So this is the first year for that and it's important because our clients trust us with their data and we have to make sure that we're educated and staying up to date , so it's an important credit . So I'm going to end this way . If you do so much personally and professionally , you support the women in law section and issues for women , so I want to thank you for that and I want to ask do you have any final words ? I hear all the time from law students or other lawyers that they don't have time to get involved in court initiatives or bar association civic events . What are your final words to them ?
Speaker 2Young lawyers have no excuse . There's no reason why you can't attend these monthly programs that are virtual , from your desk while you're eating your sandwich it does not get in the way of billable hours and you meet and engage with senior lawyers like myself who will mentor you , who will sponsor you . We're willing , but you can't pull people in . They have to want to , and the opportunities are endless . I mean , I'll leave this . When I was in Cardozo Law School , I wrote an essay . As a result , I became the national student liaison to the section of criminal justice . That was a huge position , and why did I get it ? I wrote a two-page essay and I won , and so I encourage law students to look out of the box , get out of their silos and look at the bar associations , because there's a lot to be offered , a lot of connections to be made .
Speaker 1Yes , thank you so much . Well said , they just have to step up and we're there waiting for them to help them be the next set of leaders . Ok , so , my friend , I appreciate you taking the time to join the podcast today and I hope you'll come back again to talk about some very interesting real estate litigation dispute with people who have Oscars or whatever else . Maybe of interest for you to join us on the podcast again .
Speaker 2Thank you very much for the opportunity , Kim . I appreciate it .
Speaker 1All right , we're looking forward to talking to you soon Ciao . Thank you for tuning into this episode of Legally Bond . If you're listening and have any questions for me , want to hear from someone at the firm or have a suggestion for a future topic , please email us at lealybondbskcom . Also , don't forget to rate , review and subscribe to Legally Bond wherever podcasts are downloaded . Until our next talk , be well .
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