My Friends at the Office of Court Administration

So, my friends at the Office of Court administration want to change the rules with respect to experts in divorce matters. Read all about it here:

http://www.nycourts.gov/rules/comments/PDF/Rule202-16gPC-Packet.pdf

So, I can never resist if they ask, so here are my two cents:

John W. McConnell, Esq.
Counsel
Office of Court Administration
25 Beaver Street, 11th Floor
New York, New York 10004

RE: Proposed Amendment of 22 NYCRR §202.16(g)
Relating to Enhanced Expert Disclosure in
Contested Matrimonial Actions

Dear Mr. McConnell:

Thank you for soliciting my comments on the proposed changes to 22 NYCRR §202.16(g) as recommended by the Matrimonial Practice Advisory Committee. While I am not sure any comment could dissuade the adoption of such rule when recommended by the MPAC, here are my impressions:

This Rule should never be implemented.

As with all Court Rules, one needs to ask (a) does it address a need of matrimonial litigants, (b) would it be subject to abuse, and (c) is it economical.

While MPAC states that this Rule is necessary to assure fairness in increasingly complex litigation, there is no general failure of litigants to learn the necessary facts and information from matrimonial experts. The current Rule requires the exchange of reports. CPLR 3101(d)(1) allows upon request complete information on any expert who opinion will be proffered in litigation. There is not one reported Appellate case where a litigant raised successfully the issue of the inability to cross-examine or challenge an expert opinion based upon current Rules of Evidence as well as the disclosure requirements in matrimonial actions. The question then becomes why is this rule being suggested now? It addresses no burning disadvantage to any litigant today.

Is it subject to abuse? You bet it is. The presumption of the ability to take the deposition of an expert other than in a custodial matter leaves open the litigants to vast expenses and delays. Also, the Rule makes no sense. Your Rule requires completion “no later than four months after the completion of fact discovery.” What the heck is fact discovery? All discovery is fact based, and there is no delineation within the current Court Rules of fact discovery verses any other kind of discovery. It also contradicts the current Rules concerning the timing of matrimonial litigation. As a result of the Milonas Commission Report as well as the 2006 Matrimonial Commission Report, rules were put into place to move matrimonial litigation. 22 NYCRR 202.16(f)(3) requires the court to schedule a date for trial not later than six months from the date of the conference in a non-complex case. How can this occur when you have a certain period of time for something known as fact discovery, and four months later for the completion of expert information.

If for no other reason, this Rule should never be adopted because of cost. The vast majority of matrimonial litigants cannot even afford to take the deposition of the other spouse, let alone protracted litigation. The only people who would clamor for this kind of a Rule are the very rich and the attorneys who service them. Virtually every Rule and form promulgated by the Chief Judge, the Uniform Rules and the forms of the Office of Court Administration have vastly expanded the cost of matrimonial litigation for the citizens of the State of New York. Unlike the simplified forms in other states, the booklet of instructions for an uncontested divorce is now 41 pages. There are 32 forms on your website to be used in an uncontested divorce. Most of these forms serve no purpose other than statistical collection, such as your incomprehensible UCS-111 for the assembly of support information. What is the purpose of the DOH 2168 Department of Health form or your newly devised, unduly lengthy Matrimonial Addendum to the RJI (UCS-840M)? There is nothing you can do about the foolishness of the Legislature to require notices that serve no legitimate purpose, such as the protection of household pets including fish in family offense matters or required language about health insurance. However, at some point a method has to be developed for the average matrimonial litigant to get through the process of attaining a judicial dissolution of a marriage without the Byzantine process forced upon them by rules that require further conferences between attorneys, applications to a court, considerations by a Justices that can only lengthen the process and increase the fees. We are bound to charge by the hourly rate. Everything you do that extends the time to bring people to a final resolution increases cost. For once, the Office of Court Administration, the Chief Judge and the others who are considering this Rule should think of the average matrimonial litigant in the State of New York as opposed to the very rich and the attorneys who represent them.

Thank you again for the opportunity for comment.