ADR Choices

Over this past year, virtual or digital conferenced mediations and arbitration hearings probably represent one of the fastest and most successful transitions in any of the professions, notwithstanding that we have had to lead our initially reluctant clients to the trough.

First, all readers should recognize that the entire ADR field originated only some 30 years ago and has experienced its explosive growth during this relatively short period of time. Since its inception, over 150 countries throughout the world have adopted this form of conflict resolution.

So, as we think back to March of last year, when most of us first became fully aware of Covid-19 and its ramifications for our well-being and what it would mean for our work and social lives, we should recall how quickly ADR providers like National Arbitration and Mediation (NAM), recognized that the backdrop of our profession — the “in-person” meeting, conference, and hearing — would not be available to us. The remaining questions were, for how long and what to do about it?

The Advent of the “Virtual”

At a recent webinar, a discussion about the future of virtual ADR was front and center. ADR providers had the foresight to act immediately. Within a matter of two to four weeks the “service” side of our profession had tapped into the available technology. Platforms such as Zoom and others, “break-out rooms,” chats, exhibit loading and sharing, all became part of our ADR vocabulary. Along with them came new rules, guides, protocols, and on-line payment systems. Providers trained staff to act as technology “trouble shooters” and to oversee mediation sessions and hearings. And, of course, we mediators and arbitrators also had to quickly become proficient with the technology. The proud watchwords of what was accomplished are “quick” and “seamless” to describe the transition to the new platform. The technology was there to be tapped, and it surely was.

Yet after all the preparation and associated costs, ADR encountered the old joke “what if you gave a party and nobody came?” For at the beginning of this transition some neutrals experienced hesitancy and skepticism from those we serve. Mediators and arbitrators attending the webinar, including this writer, recounted how the parties in all of our scheduled mediations and hearings immediately sought successive adjournments in the hope that things would be back to normal by the end of last spring. It was not until then that clients finally were willing to try the virtual platform, lest they be left waiting for a truly unpredictable length of time.

Virtual Is Here to Stay

So now that we are past the one-year mark, where are we? Start with this amazing fact: Within this past year, literally thousands of virtual arbitration hearings and mediation sessions have been conducted around the world. The Zoom platform garnered very favorable satisfaction for both arbitrations and mediations.

In many respects, a skillful neutral can use the technology to bring the “personal” to Zoom. For example, it can be valuable to start a session by going around the table and having each participant introduce themselves, i.e., where they live, their families, what they do, what role they play in the proceeding, etc. In mediations, where the neutral is encountering resistance from a party, a separate meeting in a separate breakout room can be directed at softening up the individual, making him or her feel more at ease, or exploring in greater detail what their concerns are. This also can lead to mediator suggestions of possible ways to break a deadlock.

Other benefits of a virtual mediation or arbitration are that the Zoom screen enhances one’s ability to be more intellectually focused and thus enhances one’s ability to think things through. The convenience of not having to travel also can bring more voices and talent around the virtual negotiating table, such as the presence of insurance adjusters, or people from abroad who are no longer required to fly in for a half-day hearing. Consider construction cases, for example. A participant can appear right from their construction trailer when needed, without losing days of work. We should also be mindful that for young people that have entered the ADR field, their familiarity with technology and solo work is their way of life.

And though digital conferencing will certainly be part of ADR’s future, the benefits of in-person hearings were also presented. In fact, the lunch break or as some call it the “intensity break” – especially in mediations – afforded the parties and their counsel to mosey up to one another and build a social rapport that often can lead to a breakthrough in negotiations.

Arbitration vs. Mediation: A “Virtual” Dichotomy

As we look ahead to the fall, all ADR providers and neutrals at the webinar agreed the views of our clients will guide us in defining the future. For example, in mediations, where clients are business executives, their response throughout the pandemic has been laser focused on the pragmatic. They want to settle as soon as possible. Their attitude is, “life is too short, so let’s get on with it.” That equates with pragmatism and cost efficiency. And that means “virtual” technology.

In arbitrations, on the other hand, where there can be protracted discovery disputes, clients have exhibited some hesitancy to go “virtual” and many may want to tell their stories in person. Arbitrators, too, appear to be favorable to return to in-person hearings, primarily because of their desire to establish rapport with their colleagues on arbitration panels whom they do not know and with whom they must collaborate.

A “Hybrid” Future?

 There is increasing talk in the arbitration space about “hybrid” proceedings — conducting pre-hearing proceedings virtually to acquire more knowledge of the documents and reduce them to “core” documents for the hearing itself. Also, conducting virtual hearings in smaller bites is a useful tool in large arbitrations with multiple parties, especially with multi-state, out-of-state, or international components. One of the international providers at the webinar predicted that virtual proceedings would comprise 25 percent of all international ADR.

Similarly, in mediations, the preliminaries such as establishing a schedule for the exchange of Mediation Statements and documents, setting a date for the mediation, and establishing an initial rapport with the neutral can be conducted virtually. In light of this past year’s experience, query whether ADR phone calls will have become passé? And for those clients that still wish to opt for in-person mediation, virtual hybrid preliminaries may precede a physical return to the negotiating table.

Ethics

The webinar also posed a number of ethical questions such as: In a hybrid arbitration with some virtual and some in-person evidentiary hearings, e.g. abroad - does a party that objects to a virtual hearing have a right to force an entirely in-person proceeding? That certainly is worth a look.

Conclusion

There was little doubt among those at this comprehensive webinar that “virtual” is here to stay, both because it works and because it is cost-effective. It appears to be significantly more popular among mediation users than for arbitrations, although there may be room for hybrid usage in the latter, both as a matter of efficiency and cost. Ultimately, it will be our clients that dictate the directions we will take. But one thing is certain: Our ADR community can be very proud of what has been accomplished over this most challenging past year, and we can be equally confident that, as we begin in earnest to look ahead to the fall, all of us working together will be ready to meet the challenge.

Hon. Melvin L. Schweitzer is a retired Acting Supreme Court Justice, New York County, Commercial Division. He is a member of National Arbitration and Mediation’s (NAM) Hearing Officer Panel and is available to arbitrate and mediate cases nationwide. Judge Schweitzer served on two New York State Courts for a period of 10 years: Judge of the New York State Court of Claims, 1^st District, where he presided over contract, negligence, construction and medical malpractice trials against the State and certain of its public authorities and public hospitals, and then Acting Justice of the Supreme Court, New York County (Commercial Division) hearing highly complex commercial cases. Prior to his judicial service, Judge Schweitzer practiced law for more than 30 years as a Senior Partner for a prominent New York Law Firm, focusing on corporate and securities law, public finance, and insurer insolvency. He also headed his own firm for five years focused on property and casualty insurer insolvency cases; international construction mediation; and a multi-year, high profile accounting fraud case before his appointment to the bench by the Governor and confirmation by the State Senate.

How do you set the stage for successful settlement negotiations?

Dan: Have a plan. Too many lawyers look at mediation the same way they look at a court settlement conference. They appear with settlement authority, but without a plan. That becomes a fatal error and often results in an unsatisfactory result. The parties need to agree, in advance of the mediation, about the issues that they may need to resolve. The parties and the mediator need to recognize those issues as they prepare for the mediation process and address how those questions may be resolved. Agreeing on the timetable and process then offers a road map for each party to prepare.

The parties and the mediator can collectively create a process that all agree is fair, equitable, and useful. Who will pay for the process? What time will be included in the mediator’s fee? Will parties provide the mediator with submissions and will those be shared with other parties? Will there be private caucuses with the mediator prior to the mediation session? Is there a requirement that the parties themselves appear at the mediation or can they be merely available by telephone? What will be rules on confidentiality? Will there be opening statements in a joint session? Will there be the opportunity to caucus, just with the lawyers and without the parties present? What are the rules on confidentiality? If documents are produced in mediation, can they be used in future legal proceedings if the mediation does not result in settlement?

Jean: Absolutely agree. In addition, consideration should also be given to intangibles. What might be the most effective way to negotiate, given the personalities and interests of those involved (parties, counsel, mediator, adjuster) and relationships the parties may have (family, business partners, former friends)? How might personalities or emotion impact the negotiations? What ways can be used to diffuse anger, frustration, or negative emotions to utilize positive emotion? Will the mediation be held online, in-person, or hybrid? What will it look like, and are acceptable arrangements in place? Has sufficient information and documentation been exchanged by counsel, so the other side has sufficient time to evaluate its impact? Even if not yet exchanged in discovery, consider exchanging information in the mediation context. Prior settlement discussions? What about a confidentiality agreement? Use one? Who to prepare?

Pre-mediation calls with the mediator, both individually and as a group, are such an important tool. These calls essentially act as the start of the mediation process, leaving everyone ready to get to work on mediation day. They can result in greater clarity as to factual issues, identification of dynamics that need to be addressed or avoided, exchange of information that can assist the negotiation process, and “buy-in” from counsel who together with the mediator are designing for their clients a process to ideally best position that particular matter for resolution. I highly recommend them.

Can you give some examples of what you mean by “planning” and “process”?

Dan: As to issues that may need to be resolved, for example, a disagreement on additional insured status of a party, the impact of a contractual indemnity agreement or other risk transfer issues, questions about primacy of coverage, all may make resolution of a bodily injury or construction defect case very difficult to attain if those issues are left unaddressed until mediation day. In a case involving a construction site accident where the plaintiff sustained serious bodily injuries, it can make sense to schedule coverage or risk transfer mediation prior to the mediation session in the underlying lawsuit. Assuming one gets past the coverage and risk transfer issues, are there significant liability issue both with regard to the plaintiff(s) and the defendant(s) or between and among defendants?

Jean: Dan’s points are well taken. Anytime there are multiple insurers, plaintiffs, or defendants, whether and how to phase the mediation process needs to be considered. In matters involving multiple issues, it helps to identify “low hanging fruit” issues that can perhaps be more easily resolved earlier on in the day. This approach can be especially helpful in resolving business disputes and for matters where greater factual clarification is warranted.

Planning also plays a part on the other end of the mediation process. If it is clear that mediation day is ending without a complete settlement, I like to give the parties and counsel hope for resolution after further discussions. Where are the stumbling blocks? Is there further information that can be shared, or limited discovery taken that will clear the path to resolution? Leave people with homework and a plan to reconvene. Without that, there can be little hope and gains from the day may be lost. Often, settlement will be had via follow-up telephone diplomacy after everyone has had a chance to “sleep on it.” Or not. And if not, so be it. Settlement at any cost, should not be part of the plan! That is why we have courthouses.

What about joint sessions and opening statements?

Jean: For most California mediations in commercial, insurance, and general civil litigation, formal opening joint sessions with an opening statement or substantive presentation have gone by the wayside. People tend to start with a meet and greet, i.e. introductions of the participants, and then separate out into breakout rooms and get to work, coming together throughout the day as may be appropriate. That said, there are a myriad of reasons why starting with a substantive joint session may be beneficial. It depends on the case, the issues, personalities, and wants/needs of the parties and counsel. This is a topic that should be addressed in advance of mediation day so that expectations can be properly managed.

Dan: Jean is right, that in most cases, opening statements and joint sessions have gone by the wayside, but I’m old school. I think that a mediation opening session is the only time when a lawyer can talk to her or his opponent’s client, directly, and without the filter of a lawyer reinterpreting what the speaking lawyer is trying to convey. It gives an opportunity, in certain cases, to show empathy and compassion, to express feeling, and to reach and touch the opposing party in a way that may help lead to resolution.  Opening statements gives the lawyers that chance, not to talk to the mediator, but to speak, candidly and kindly, to the opposing party. It is not a time to be positional, but reflective and understanding. 

Why do you mention confidentiality agreements?

Jean: Mediation confidentiality has been the subject of much discussion since the start of the pandemic, primarily triggered by the transition to online mediation with people participating from many locations. There is no national mediation confidentiality law in America. Some states have adopted the Uniform Mediation Act, which provides for a mediation privilege while the Federal Rules of Evidence and various state statutes provide for mediation confidentiality, often via Evidence Code provisions. Those provisions are not a privilege.

So, what is the essence of the discussion then? It is primarily the impact of choice of law rules being applied by courts. Some states have strong confidentiality statutes and others, not so strong. Communications in connection with a mediation, whether in person or online, may well be treated as not confidential by a court in another action or later proceeding, to the consternation of a party who was expecting total confidentiality without limitation, forever. This is true even where there may have been a signed confidentiality agreement. [See, e.g., the following articles published in Law360 authored by Jeff Kichaven: What You Say in Online Mediation May Be Discoverable (2020), Mediator Confidentiality Promises Carry Serious Risks (2020), and Beware the ‘Standard’ Mediation Confidentiality Agreement (2016). See also Larson v. Larson, 687 Fed. App’x 695 (10th Cir. 2017), People v. PwC, 150 A.D.3d 578 (N.Y. App. Div. 2017), Hauzinger v. Hauzinger, 43 A.D.3d 1289 (N.Y. App. Div. 2007), aff’d, 10 N.Y.3d 923 (2008), General Electric Co. v. APR Energy PLC, 2020 WL 2061423 (S.D.N.Y., Apr. 29, 2020) and related Memorandum and Order, supra, (S.D.N.Y., 19-CV-3472 -VM-KNF, Dec. 14, 2020); Accent Delight v Sotheby, 2020 WL 7230728 (S.D.N.Y., Dec. 8, 2020).]

Conversely, a signed confidentiality agreement may be enforced that extends beyond the scope of either the UMA or state confidentiality statutes, to the potential detriment of a client. [See Facebook v. ConnectU, 640 F.3d 1034 (9th Cir. 2011); Kichaven articles, supra note 1.]

 The lesson? Neither counsel nor mediator can promise that any mediation is completely confidential. There are no guarantees. That said, be mindful of this discussion as part of your planning and consider what particular form of confidentiality agreement to recommend, or not, to your client for signature – just as you would advise re any other contract.

Dan: Jean’s comments are spot on, but we try indeed to assure confidentiality to the extent humanly and legally possible. I tell the parties that I will destroy all my mediator’s notes once the mediation has come to an end so that I cannot be called to testify of any matter of substance, and I do just that. Without that candor, without that best promise of confidentiality, mediators have a difficult time securing the trust of the participants, so we try all we can to maintain as much confidentiality as the law permits.

Any concluding thoughts?

Jean: Each case is unique to the facts of the loss/claim, the needs of the parties, and dynamics of the involved personalities. There is no one-size-fits-all approach to mediation. Negotiation style in one matter may not work in another. The most successful mediations are those where both the mediator and counsel have taken the time to consider how best to personalize the process. There are many ways to define success in mediation. Even if a mediation does not result in a complete settlement on mediation day, that does not mean the day was not worth the effort or that the mediation “failed.” It may have been a whopping success in opening lines of communication, helping to repair broken relationships, focusing and clarifying factual or legal issues, and in otherwise setting the stage for further settlement discussions. Mediation is a process, not an event. Keep an open mind and a positive mindset. Roads to resolution are rarely straight. Enjoy the journey!

Dan: There are many ways to resolve civil disputes, some more expensive and time consuming than others. Parties, of course, can take their cases to trial, engage in years of expensive discovery, retain and invest in any number of experts, seek or produce endless documents or electronic case files, and then turn the dispute over to a judge or jury to fact find and render a verdict. Alternatives to that process abound, and those seeking a more efficient method to dispute resolution have a variety of available options to consider: arbitration, neutral evaluation, court-annexed settlement conferences, court-sponsored mediation, and private mediation.

Mediation is, for the most part, a voluntary process; although we recognize that a growing number of courts are requiring attempts at dispute resolution, either before discovery commences or at the conclusion of the discovery process. The private mediation process provides the greatest opportunity for creative resolution and problem solving. A skilled mediator, not burdened by the brief time allotted for court-annexed opportunities, can assist in developing solutions satisfactory to all sides, and present options for resolution a jury could never consider. Agreeing in advance on a timetable and process offers a road map for each party to prepare. Understand your opponent’s position and recognize it. Understand your client’s needs. Negotiate and embrace the process to “get to yes.”

Based in Los Angeles, Jean Lawler is an attorney, mediator, and arbitrator, focusing on commercial, insurance, and civil matters pending at the trial and appellate levels. She regularly mediates a wide variety of insurance, business, and tort litigation matters, as well as federal ADA accessibility lawsuits regarding architectural barriers and websites. Certified Information Privacy Professional certified, Lawler also mediates matters involving data breaches, ransomware, and cyber losses. Lawler is presently serving as chair on an arbitration panel for an insurance dispute.

A senior member at Hurwitz & Fine, P.C., Dan Kohane has distinguished himself in managing the ever-evolving area of insurance coverage serving regional, national, and international clients. An accomplished trial lawyer and litigator, Kohane is also active behind the scenes, advising clients on a broad range of matters involving litigation including insurance coverage, bad faith, tort defense, and professional ethics. Kohane also has extensive experience mediating complex casualty and insurance coverage disputes and serves on the American Arbitration Association Complex Coverage Neutral Evaluation Panel and Commercial Arbitration panels. He has also recently been appointed and certified to the panel of Federal Mediators in the Western District of New York.

For example, when you are in mediation and the plaintiff's attorney has slightly reduced or not come down from the original demand. You did surveillance before and after the plaintiff's surgery; you now have the tools you need to convince the other side. The video may show that the plaintiff has been active and ambulating well while walking with a normal gait since the surgery. With that in mind, you may want to show the plaintiff attorney the video to convince them to settle.

When you have surveillance video that is effective and can assist you in a settlement during mediation and arbitration, it can be challenging to determine when to use the surveillance, especially when you have an upset plaintiff. It has been helpful to show the video to the arbitrator or mediator and let them explain to the plaintiff that it would be in their best interest to settle the claim.

I think that deciding the right time to produce surveillance must be weighed on how reasonable the other side is, and if they are even close to the authority, you have to spend on the claim.

One mediation came to mind when a client called, and he asked if we could have an agent to an attorney's office in 20 minutes to catch the plaintiff leaving. They were just not coming to a settlement. The quick-thinking adjuster suspected that the plaintiff was exaggerating the claim. He noticed him lifting his right arm several times while in a sling. We had an agent there in 15 minutes and saw the plaintiff entering a vehicle of a pre-arranged driver to take him to his apartment. When the plaintiff arrived at his apartment, he removed the sling and used his right arm to grab the handrail. He later walked to a local market and carried a case of beer back to his apartment using the injured arm. Even though the adjuster did not have surveillance at the time of mediation, he was astute enough to recognize when someone may be untrue in his testimony. The result was a low six figure settlement from a $4 million demand.

If surveillance is in your plans, the proper preliminary work will increase the chances of a positive outcome. In this world of increasing technology and access to so much information on the internet, research and internet presence investigations are vital to the success of today's surveillance. Without it, you go in blind and have a limited chance to obtain the information you need to determine whether the claim has merit.

An example is when a client had requested surveillance on a claimant in which another firm had previously done three straight days in Manhattan with little success. This case was a workers' compensation claim where the injured party looked to be in spectacular physical shape but had almost no activity for three straight days. One of the questions I asked was, "What time of day was the surveillance done and was there any preliminary investigation before the surveillance." The response was no, so I explained that if we have a physically fit individual with little to no activity during the daytime, he may be getting his physical activity in the evening. Therefore, we should do a preliminary investigation before any further surveillance is completed. The client agreed, and through our investigation, we determined that the subject was a personal trainer at a club just two blocks from his apartment. We obtained information by identifying health clubs within a five-block radius of the subject's apartment and making inquiries at those clubs. We subsequently recorded a video of the subject working out with a student at the health club that dramatically changed the case’s outcome.

Each case is not the same and should never be treated as such. Unfortunately, some firms use a cookie-cutter approach in which they do the same thing for every case they receive. Liability claims are different from workers’ compensation claims. The investigator handling the file needs to know the differences to effectively provide the client with the required information to evaluate the severity of the injury. For example, following someone to his office at a desk job for a liability claim provides no real value to a client. We should know before doing the case that this person works in an office during the week and should execute surveillance on the weekend to determine the subject's actual physical abilities.

Social media investigations should be at the forefront of almost every claim, as so many plaintiffs today take down content before it can be captured. Today, many adjusters do some of their own investigations on the internet, find something of value, screenshot it, and stop there. If you have content from the internet, a screenshot is no longer the proper way to preserve that content. To stand up in any court, you will need metadata and the MD5 hash algorithm to prove the information was obtained from a public internet site. 

Did you know that in the last 60 seconds

• More than 300,000 Facebook profiles have been updated
• 4300 tweets have been posted
• 67,000 photos have been posted on Instagram

Not to mention so many other profiles across the internet. As investigators, we need to stay informed of the ever-changing world of social media and keep evolving; that is why it is necessary to make data mining a specialized department. By making this a technical field, the investigator doing the work has all the tools and current knowledge to provide the most accurate internet profile of the plaintiff.

When preparing for surveillance, the internet can sometimes provide enough information that surveillance is not needed. We have found webcasts and YouTube content that has been damaging to the plaintiff's side. For example, an individual who, by profession, was a personal trainer who walked around in public with a neck brace. However, this person posted a daily webcast of herself working out in her basement. In another example, a plaintiff shared video of himself as he jumped from an airplane at 10,000 feet.

Even during a pandemic, people were streaming events, which sometimes became the best resource we had to finding the truth about a claim. I could go on and on about how many cases have been solved and claim dollars saved because of the internet.

There are challenges, however. The information captured from the internet must be appropriately obtained and not captured under false pretense, such as "friending" someone to access a private page. You can, however, search friends and family Facebook and Instagram profiles to find content. If those profiles are public, you can capture the content. All hidden data must be preserved, which is referred to as metadata. Preserving the metadata or exchangeable image file format (EXIF) information from photos is as important as the page itself. I like to refer to this information as data DNA. We use our software to procure this data to make it admissible to court.

Investigating the plaintiff and providing a better understanding of the person's daily activity is vital before surveillance. For example, we recently had a client want surveillance without checking into the person's background because an independent adjuster saw this person the previous month. After convincing the client that a background check could be vital to this case, our agent determined that the police arrested this individual on a warrant for theft, and he was still in prison. Going on surveillance would have been a waste of time and money. So instead, investigators will use the content from what is found on the internet and verify it to be true. You have heard the phrase not everything you see on the internet is true. That is true, and as investigators, we need to determine whether these leads have validity.

Vehicle sightings is another way to better understand a subject's routine. Through a database that private investigators use after being approved and passing a security screening, we can obtain GPS locations of a subject's vehicle that is captured by police, google, or security cameras. This system of vehicle sightings can be used to identify an individual's habits or where a transient individual lives.

Once these procedures are followed, surveillance can be engaged. The agent will be equipped with several of these items as long as he or she completed the preliminary investigation correctly:

• Current verified address
• Registered vehicles owned by the plaintiff and family
• Locations where the plaintiff routinely visits
• Upcoming activities such as recreational, vacations, fishing or hunting, parties, and amusement parks
• Upcoming medical or business-related appointments
• A photo of the plaintiff for identification purposes

The last thing a good investigator wants is surveillance that does not help the client determine the merit of a case. Preliminary work done before the surveillance can improve results that are beneficial to the defense. In the end, doing the necessary preliminary work will save time and money as well as ensure a better surveillance.

Doug is president of Marshall Investigative Group and has been involved in claims investigations for the last 30 years. Doug’s philosophy in creating the highest-quality investigative techniques is to employ people not just from criminal justice backgrounds but various fields such as IT, engineering, marketing, sociology, and psychology. Doug’s degree is in Industrial Design and that background has helped him see the value of bringing people from various specialties to make a stronger company. 

The first 10 years of Dave’s practice involved defending doctors, nurses, health care professionals, and health care facilities in malpractice and licensure matters. Doing so, Dave gained valuable trial experience and began to earn his reputation as a thorough, detailed and well-organized trial lawyer. With that firm, Dave rose from Associate to Partner in less than four years. After those first 10 years, Dave shifted his focus and spent the following 15.5 years practicing plaintiff’s personal injury law with a large and established firm, joining as a Senior Trial Attorney. In that role, Dave managed a very large portfolio of cases in all stages of pre-litigation, active litigation, and trial. Dave then returned to civil defense and accepted a partnership in a practice representing insureds and carriers in the defense to tort claims, subrogation matters, construction defects, and insurance coverage matters. After holding this partnership for over three years, Dave joined Ciano Kelly Brady LLP in the fall of 2020.

Dave serves as a faculty member on continuing legal education panels, advising his fellow attorneys on updates in the law and practice skills. He has lectured for the Defense Research Institute (DRI), the New York State Bar Association, the Bar Association of Erie County, the New York State Trial Lawyers Association, and the Western New York Trial Lawyers. He has twice served on the Board of the Western New York Trial Lawyers, as treasurer and director. With DRI, Dave is active in the ADR Committee.

Professionally, Dave is most proud of his peer review rankings by his fellow lawyers and the judges before whom he practices. Dave is rated AV Preeminent by Martindale-Hubbell; he has been chosen for Best Lawyers in America since 2001; he has been included in the New York State Super Lawyers since 2006; and in Buffalo Spree Best Lawyers in Western New York since 2011.

Personally, Dave is most proud of his family. He and his wife Kathleen have been married for more than 30 years and have three children: Ben, 25; Shannon, 22; and Caroline, 16. Away from the office (and often in the office), Dave is a devout Bruce Springsteen fan, whose music, Dave says, has been the soundtrack of his life. He believes that “The Godfather Parts I and II” are the greatest movies ever made and enjoys quoting “Seinfeld” references whenever possible.