“The penalty for laughing in a courtroom is six months in jail. If it were not for this penalty, the jury would never hear the evidence.” H.L. Menken
“What happened? Satan was busy?” Sam Kinison on finding out his wife had hired Marvin Mitchelson in their divorce.
You’re kidding me right? Why anyone would want to become a New York State judge is beyond me. Consider this. A judge in New York is subject to an endless possibility of public humiliation and punishment for things that folks like me take for granted. Or, as Meat Loaf once asked, “Is nothing sacred anymore?” Apparently not. Just ask Tom Ramich, formerly the Elmira City Court Judge. He resigned this year and had to promise never to be judge again because, among other things, he told a bad joke at an Elmira Patrolmen’s Benevolent Association dinner in 2009. Now, I am not talking about some racist rant or anti-Semitic wisecrack. No, the Pope was not mentioned. He made some lame quip about aliens asking a fellow judge if he is a small claims judge because his apparatus is, well, small. OK, it’s not funny. But does this merit the scrutiny of the Commission on Judicial Conduct? You bet it does. Not only that, but they claim this violates four different directives of the Chief Administrative Judge’s Rules of Judicial Conduct. They are (a) failure to uphold the integrity and independence of the judiciary, (b) not promoting public confidence in said integrity and independence of the judiciary, (c) not being courteous, patient or dignified in those with whom the judge deals in his official capacity, and (d) conducting extra-judicial activities that detract from the dignity of the judicial office. Now, putting aside that Judge Ramich (Ret.) was chastised for extra-judicial and official conduct within the same bad joke, this is a ridiculous, overreaching, arrogant and flat out wrong use of the Commission’s power. If the bar is set so low that this can get you in trouble, a New York judge might not want to venture out into the public let alone speak before the PBA or anyone else. As for me, forget the judicial pay raises. There is no amount of money in a bi-weekly paycheck that would allow me to be scrutinized by these miscreant Neanderthals. Hey, do you know the difference between the New York Commission on Judicial Conduct and the Spanish Inquisition? The Tribunal del Santo Oficio de la Inquisición stopped torturing people in 1834. There. That should keep the black robes off my shoulders for the rest of my career.
As for genuine judicial dopiness, consider the case of Ghost v. Ranger, two dogs who got into a spat in the Town of Oneonta. After two dousings with water the dogs were finally separated, but both were pretty badly hurt. After a trial at which Ghost did not testify, probably for Fifth Amendment reasons, Town Judge Philip Hosley found that Ghost was a dangerous dog as defined by the Agriculture and Markets Law. After the County Court affirmed, the Third Department wisely reversed and vindicated poor Ghost. It seems that the justice opined in his decision that “dogs are by nature stupid...” Say what? Don’t tell that to my Missy. Judge Spain, writing for the court found this statement inexplicable. Is also seems that Ghost’s owner was pregnant at the time of the incident and she miscarried the next day. The court callously commented that taking Ghost for a walk and “being pregnant shows a lack of judgment.” That comment was, as the court held, injudicious. Of course, none of this merits comment from the boys at the Commission on Judicial Conduct, presumably because no jokes were made in rendering the decision. By the way, Ghost’s owner successfully represented herself (and of course Ghost) in the appeal. Way to go, girl!
What else is new? Did you see that our friends at the Office of Court Administration have now mandated wearing bullet proof vests for all court officers while on duty? Now that makes me feel better. They are also seeking “public comment” on a proposed Rule penned by something called the Matrimonial Practice Advisory Committee (MPAC to their close buddies) that would expand the ability to depose experts, even custodial evaluators, extend discovery until four months after “fact disclosure” whatever that is, and add a lot of stuff to the expert disclosure now required in CPLR 3101(d). Has there ever been a “proposed rule” that wasn’t eventually codified? I have no idea, but I cannot resist the chance to get something off my chest, so here is a sample from my not so public comment. Now where did I put my soapbox?
“There is not one reported Appellate case where a litigant successfully raised the issue of the inability to cross-examine or challenge an expert’s 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… 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, and considerations by 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.”
There, I feel better now. Happy Law Day and of course, Feliz Cinco de Mayo.
Rule 100.1
Rule 100.2(A)
100.3(B)(3)
100.4(A)(2)
You can read the whole sordid thing here in 744 pages of nonsense:
http://www.scjc.state.ny.us/Determinations/R/Ramich.STIP.pdf
Yeah, I had no idea either that this was defined in our statutes. If you care, take a gander at Agriculture and Markets Law section 108(24)(a).
People v. Shanks, __ A.D.3rd __ (3rd Dept., April 3, 2013)
http://www.nycourts.gov/rules/comments/PDF/Rule202-16gPC-Packet.pdf
Saturday, April 20, 2013
Saturday, April 06, 2013
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.
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.
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