Attorney Mary E. Gasparini teaches what is ethical at CLE seminars while filing fraudulent claims with the court. What a joke and what a valued teacher.

I already wrote on this blog that in January of 2013 a disciplinary charge was launched against me by the Appellate Division Third Department Professional Conduct Committee stating that I, as an attorney representing clients, did not appear at a deposition in a named court case, did not provide an explanation as to why I did not appear, did not answer a subsequent motion to strike and for a default judgment and thus caused the default judgment.

As described, the charge portrays gross neglect of the client.

The court records of that named case clearly show that:

(1) the deposition was held on September 15, 2008 when I was not an attorney and could not be required to appear for clients as an attorney in a court case;

(2) that the motion to strike was made on December 9, 2008, simiarly when I was not an attorney.

I provided a copy of the transcript of the deposition with the above date to:

(1) Attorney Discipliary Committee of the 3rd Department;
(2) the Appellate Division Third Department court;
(3) The U.S. District Court of the Northern District court where the disciplinary case was initially removed
(4) The New York State Attorney General's office representing the disicplinary authorities
(5) The U.S. Court of Appeals for the 2nd Circuit where I appeal the remand back to state court;
(6) To the Appellate Division 4t Department;
(7) To the Attorney Grievance Committee for the 4th Department 5th Judicial District.

That's 7 agencies, where at least 10 people in each, all paid by American taxpayers, were reviewing the court records that I provided and refused to drop obviously fraudulent charges, continuing instead to charge the public for advancing fraud in court against an attorney, in order allegedly to protect the public.  Think about it!  Isn't it the stuff for John Oliver's Last Week Tonight show?  

Only it is not so funny when it is happening to you.

Until now, the fraudulent charge remains pending, and yesterday I received a sworn statement from attorney Mary E. Gasparini of the Attorney Grievance Committee for the 4th Deparment 5th Judicial District stating under oath that:

recitation in Charge I Specifiction I 

(1) represents correct procedural history of the case (Ms. Gasparini does not name which case, and I doubt that she knows which case, since she admitted under oath she did not review the case and does not have to because it is transferred from another department and she must prosecute it "as is");
(2) does not allege any misconduct against me;

(3) the date of 2008 when the deposition was held and the motion was brought ( I was admitted to the bar in 2009) is irrelevant to the proceedings.

Here is Charge I Specification I and a full description of what I find wrong in it.   

Mary Gasparini, once again, stated under oath that Charge I Specification I correctly describes procedural history of the case, does not allege any misconduct on my behalf, and the date 2008 and my admission to the bar in 2009 are irrelevant to the charge.

Compare that to the actual portion of Charge I Specification I and be the judge as how fraudulent Mary Gasparini's statement is.


"Respondent (and that is me in the Petition that Mary Gasparini prosecutes) did not appear for scheduled depositions, offered no explanations, and failed to submit written opposition to plaintiff's subsequent motion to strike the answer.  The above referenced court granted plaintiff's motion to strike and entered a default judgment against the defendants".

Once again, the date of the deposition was September 15, 2008, there is a copy of the transcript of that deposition (listing my husband as an attorney of record, by the way, who actually appeared there), that copy was submitted to 7 agencies including Mary Gasparini's client, but Mary Gasparini did not "review" the charges she is prosecuting against me, because under 22 NYCRR 1000.8(a) apparently she must prosecute whatever is handed to her from the other court, no matter what - so why read if you must do it anyway.

The date of the motion is December 9, 2008.

If any private attorney would be asserting before any court, for nearly TWO YEARS, WITHOUT READING THE COURT RECORDS CONTRADICTING THE ASSERTIONS, certain things that were obviously false, as shown in court records, that attorney would have been CORRECTLY disbarred.

Yet, who will disbar Mary Gasparini?  Mary Gasparini?  Her colleagues?  You understand what a joke it is, don't you?  Attorney regulation and discipline protects the public?  When a disciplinary prosecutor asserts as a matter of right AND AS A MATTER OF LAW, her right to prosecute on charges without reading those charges and whether the charges are fraudulent or not, when such a prosecutor, without reading underlying court documents, makes false statements as to the contents of those documents to a court, when that charge is pursued for nearly two years against a civil rights attorney and vigorous critic of judicial misconduct somehow the public is protected?

Mary E. Gasparini also claimed in support of her position in proceeding with fraudulent claims, the rule of the Appellate Division 4th Department 22 NYCRR 1000.8(a) providing that if a proceeding is transferred from another court, it must be prosecuted on the original papers.

Not only such a rule is blatantly unconstitutional because it ties the prosecutor's hands and requires the prosecutor to proceed as a puppet of a recused or disqualified prosecutor, having no authority to withdraw the proceedings altogether, amend anything in the charges, or amend anything in the pleadings, including fraudulent statements, but Mary E. Gasparini, an attorney and officer of the court who took a constitutional oath of office of her own and pledged to uphold the U.S. Constitution as the Supreme law of the land, instead upholds an obscure rule that directs her to commit fraud upon the court - and she does by prosecuting a fraudulent charge, supporting fraudulent sworn statement of a recused prosecutor, and aggravates it by making her own fraudulent statements.

Mary E. Gasparini, ladies and gentlemen, and taxpayers of the State of New York, teaches seminars on ethical behavior.  She just asked a referee on October 23, 2014 for an adjournment of my case (where she acknowledged under oath she did not read the file before prosecuting on that file) because she needs to teach in two more CLEs in the week of December 1, 2014.

Those who are paying for those seminars, obviously, get a real boon, a teacher who commits fraud upon the court, so far got away with it, adamantly continues with it despite clear documentary evidence that her sworn statements are perjurous, and tries to teach other people about ethics, during state time and I am wondering whether Mary E. Gasparini is paid for her teaching efforts.

What is the necessity for judges to have their continued legal education seminars held at resorts, and have all expenses paid either by the public or by private sponsors when the CLE requirement is a personal condition to maintain the judge's law licenses?

Every licensed attorney must attend the required number of hours in continued legal education (CLE) for the reporting period (24 hours in 2 years in the state of New York).

Every attorney must also do that at his own expense.  Attorneys are lucky if their law firms pay for their CLE seminars (some law firms do) and/or allow attorneys to attend those during business week.

Many, if not most attorneys, though, carry that expense on their own.

Lately, it has become more or less easy to "attend" a CLE seminar without physically being there - online.  Paid subscriptions to such seminars are available to attorneys.

All federal judges and most state judges are also attorneys.  Being an attorney and maintaining the licensing requirements (including the CLE requirements) is a pre-requisite for many judges.  Yet, judges apparently, are not required to pay for their CLE courses.  They either charge the public, or accept gifts of all-expenses-paid CLE seminars in resort areas from private sponsors.

In my view, both of those options create appearances of impropriety for judges and puts the judicial office into a disrepute.

There is a definite problem when the judiciary, while cutting court budgets and creating backlog of cases, splurge public funds allegedly on "continuing legal education" which happens at resorts in and even outside of the country.

It was recently reported that some criminal court judges in New Orleans have spent $75,000.00 over the recent years to take them to such "continued legal education" conferences and seminars.

The same source as reported this splurge reports that judges who were rated least efficient got the most travel at public expense. 

Judges defended their behavior because, allegedly, the Louisiana Supreme Court has set the cap for such travel per judge at the whopping $15,000.00 (!).  It is beyond me as to what is the need for such an expense for a judge, and why the public must pay $15,000.00 per year per judge for continued legal education (CLE), especially that apparenty such CLE took, reportedly, only 3.5 hours a day and can be easily delivered through an online seminar that the same judge can do from his home on the Internet, without spending a penny of public money.

There is a no less pronounced problem when judges attend such CLE conferences at the expense of private sponsors (see, for example, here, here and here) - and then preside over the sponsor's cases and rule for the sponsors.  It is not a direct bribe, of course, but it surely resembles one, and such an appearance of impropriety should be enough to take a judge off the "sponsored" case.

The problem of sponsored travel for judges has existed and was reported for a long time, yet, obviously, nothing has changed.

It is illustrative that law schools opposed a legislative cap on travel expenses for federal judges.

It is no less illustrative that the proposal for the cap provided for an exception, that the cap will not be applicable if the trips were sponsored by governmental bodies, judicial associations and bar associations.

Apparently, if attorneys pay judges' expenses - and then appear before those judges - that is somehow ok?

Recently, a Louisiana judge was disciplined for accepting a direct gift of an all-expenses-paid trip from an attorney who had a case tried in front of the judge.

I see no difference when the all-expenses-paid trips are paid for by a group of attorneys, or a group of corporate sponsors whose cases are or likely to come before that judge.

It is disingenuous at best to claim that judges do not know sponsors of the seminar and do not feel obliged to rule in a certain way to get invited to such a seminar again.

The appearance of impropriety still taints any decisions that such a "sponsored" judge makes.

And that destroys what remains of the public trust in the integrity of the judiciary.

How can a judge with an ethnic bias and elementary lack of diligence, such as demonstrated by Rita Connerton, remain on the bench in Family Court?

I wrote in this blog about three complaints I filed about Judge Revoir, of Chenango County Family Court, who was assigned to a Delaware County Family Court case and, in my view, was involved in egregious judicial misconduct and retaliation.

Instead of Judge Revoir, they assigned Judge Connerton to the case, where my motion to vacate retaliative sanctions of Judge Becker against me and against my then client is pending since April 18, 2014.

Judge Rita Connerton is listed as a "Supervising Family Court judge" on the Broome County Family Court's website.

Now Judge Connerton wants to simply rely on the oral argument before a recused judge where the recused Judge Revoir, as I wrote before, abused, insulted and berated me, not to mention that reliance of a subsequent judge upon any proceedings before a recused judge is not allowed in court proceedings in New York.

Moreover, according to a witness, Judge Connerton made a statement  behind my back in front of my opponent that she allegedly has a headache just thinking about reviewing my "500-page motion". 

Obviously, instead, she intends to review an oral argument before a recused judge, that is easier than to actually do her job that I as a taxpayer pay her for.

When Judge Connerton was assigned to the case prior to October 2, 2014, she did not schedule a new oral argument on the motion, even though she came from Binghamton, NY to Delhi, NY to hear other outstanding petitions on the same case.

Since I withdrew from representation of my client in that case, thanks to abuse of Judge Revoir, I was not present on October 2, 2014 before Judge Connerton.

According to a witness, Judge Connerton made statements about my motion, behind my back that she allegedly has a headache even thinking about reviewing my "500-page motion".

The statement, according to the witness, was made in open court before parties and counsel in the proceedings, including my opponent on the motion.

On October 3, 2014 I asked the court to provide me with a copy of an audio recording of such an obvious ex parte communication with parties and counsel behind my back and a show of bias against me.

On October 17, 2014 I received from Judge Connerton's chambers by e-mail a letter dated October 16, 2014 where Judge Connerton indicated to me that she "only discussed scheduling" on October 2, 2014, that she believes the motion was only "my" motion, that she does not believe that an oral argument is "necessary", and that she is going to order a CD of my oral argument before the recused Judge Revoir in order to make a decision on the motion.

I have an interesting history with Judge Connerton.

In 2010 Judge Connerton has made a negative inference in a Family Court proceeding against me based on my alleged "furrowed brow", "pressured speech" and that my alleged "manner at times was contemptuous of authority" (not authority of the court - simply "authority").

The opponent in the case was a governmental body, and I was raising issues of misconduct of that governmental body and its officers and employees based on documentary evidence.
 
Therefore, I understood the "contempt to authority" statement was meant by Judge Connerton as berating my arguments pertaining to documented misconduct of a governmental body, any governmental body.  That was a clear bias in favor of a party who was a governmental body. That party was simply another party in a court proceeding, and Judge Connerton was supposed to be impartial and even-handed to both of parties, the one represented by me and the one which was a governmetal body.

Instead, Judge Connerton expected and required from me a special deference to my opponent, even in view of his and his client's well-documented misconduct.

The negative inference for my alleged "furrowed brow" is another interesting statement from a judge.

I am a middle-aged woman with three children, my oldest child is already out of college and graduate school.  Naturally, my appearance might not be that of an 18-year old.  I was absolutely floored when a FEMALE judge was making a negative inference about a middle-aged FEMALE attorney's "furrowed brow". 

Judge Connerton did not like my age?  She did not like that I am not 18?  Why? Is there somehow an age limit now for female attorneys to appear in court at all and before Judge Connerton specifically? 

To this judge, obviously, appearance of age on a female attorney bears against the attorney's arguments in the courtroom, which is simply beyond belief for the judge who is the Chief Family Court judge of a large judicial district.

Drawing negative inference from "furrowed brow" and "pressured speech" of an attorney who very obviously speaks with a Russian accent clearly raises all kinds of red flags that the judge simply does not like Russians. 

It must be obvious for a judge that a person for whom English is not a native language may speak the language differently from a native-speaker, and that pertains not only to the accent, but also to the speech tempo and facial expressions ("furrowed brow"). 

Moreover, many attorneys "furrow" their brows when under stress in a trial and are making argument to the court within a very limited time that the court gives them, and the inferences were made by Judge Connerton against me specifically for my speech during a trial.

For a judge of this rank, it is completely unconscionable to make ethnic-base negative inferences against parties or counsel.

As to Judge Connerton's behavior on October 2, 2014 and afterwards, there was no good reason for her not to give me an opportunity for an oral argument at that point or afterwards, there was no reason for her to talk behind my back to my opponents about her feelings regarding the prospects of reviewing a large motion with a lot of documentary exhibits.

The situation becomes especially bizarre because one of the exhibits before Judge Connerton on the motion was a recording of my opponent where he does not allow my client to speak when she calls to speak to her child, and instead berates her, berates her mother and berates me as a "crazy Russian attorney" in a 15-minute diatribe.

Apparently, Judge Connerton, with her notion that she can draw inferences against a foreign-born middle-aged female attorney based on her allegedly "furrowed brow" and "pressured speech" in a trial, her ethnic bias against me may coincide with ethnic bias of my opponent who hinted to the Albany County Family Court previously that I allegedly am seeking "sensitive military information" through discovery. 

The "sensitive military information" was information about his income.  Apparently, for my opponent, who has spent years in the military, somehow a naturalized Russian American is still a Russian spy.

I do not believe this concept is taught to military personnel in the U.S. military, as the U.S. military may not teach bias to its own citizens, no matter what is their native country, and I have been a citizen since 2009.

For Judge Connerton, a middle-aged foreign-born attorney speaking with a Russian accent must not "furrow" her brow, must not speak hurriedly, even when hurried by Judge Connerton herself, and must respect any and all "authority" under any circumstances, even when the alleged "authority" is an opponent in litigation committing documented misconduct.


My question to the public is - how judges with such temperaments and viewpoints get elected?  How come they remain on the bench for so long?  Shouldn't something be done to eliminate people with such obvious biases and temperament flaws from getting to the bench and remaining there?

And, shouldn't the Chief Administrative Judge Robert Mulvey of the 6th Judicial District of the State of New York finally take notice as to the lack of competence, diligence, temperament flaws and ethnic biases in a judge that occupies such a prominent administrative position in the District? 

Or - does Judge Mulvey rely upon absolute judicial immunity for even malicious and corrupt acts on the bench in keeping on the bench and assigning to cases a judge who should not be allowed even close to the courtroom and handling people's destinies?

Right to a jury trial in New York is opt out, not opt in

Oh, those checks and balances.

Sometimes, it appears that our Founding Fathers put too much faith in branches of the government to check one another instead of helping one another to take away people's civil rights.

A shining example is New York state constitutional right to a jury trial.

The New York Constitution requires a written waiver of the right to a jury trial in cases where trial by jury existed before the State Constitution was adopted.

As a practicing trial lawyer, I can affirmatively state that this right is routinely violated by the courts in criminal cases, and violated by the Legislature and the court in civil cases.

In criminal cases, I have yet to see a written waiver of a jury trial signed by a criminal defendant.  I raised that issue in an appellate court, but the appellate court, as it usually does, ignored the constitutional issue and affirmed the appeal despite a glaring constitutional violation.

In civil cases constitutional violations of the right to a jury trial are no less glaring.  Many scholars consider motions for a summary judgment as an.unconstitutional encroachment upon the right to a jury trial, since only the jury can determine facts in a civil case and whether there are outstanding issues of fact.

Yet, if that issue is open for a scholarly debate, the issue of whether the right for a jury trial in civil cases is an opt out (a written waiver of the right to a jury trial is required before such a jury trial is waived, and a civil litigant must be provided a jury trial in a civil case by default) or an opt in (no jury trial unless civil rights litigants ask for such a right and pay a fee for such a right) is not open for debate.

The New York State Constitution clearly says it is an opt out right.

The New York State Legislature, sworn to uphold the New York State Constitution, clearly says it is an opt in right.

A cuvil litigant will not get a jury trial unless he or she asks for it in writing, within a short period of time after a plaintiff's trial note of issue is filed, if the litigant is a defendant in a civil action, and when the litigant is filing a trial note if issue if he or she is a plaintiff in a civil action. In both cases, a fee is charged by the New York state court to have a jury trial.

In view of the fact that over 80% of New York litigants cannot afford an attorney, and would not know to ask for a jury trial, which is supposed, under the state Constitution, to be provided by default, this legislative amendment of the New York State Constitution undoubtedly results in the majority of pro se litigants not asking for a jury trial, especially that for many people, having to pay extra $65.00 for such a right makes a material difference.

I wonder - will New York courts ever start to honor the New York State Constitution they are also sworn to protect and stop depriving people of their right to a jury trial, in civil and criminal cases, by default, unless litigants file a written waiver of such a right after being explained by the court what they are doing?

Cheating people out of their constitutional right to a jury trial, no doubt, is intentional.

It saves counties and the court system money and hassle to handle jury trials, it relieves congestion of the court calendar, it steers litigants not knowing of such a right into settlements, and it gives a practically absolute power to judges to decide cases that should have been decided by juries, with less predictable results than with judges.

A jury trial is one way to fight potential judicial corruption and fixing cases.  Such a default right exists for a reason, and it is a gross excess of power for both the New York Legislature and the state courts to make such trials an opt-in right, and an opt-in at a fee in civil cases, rather a right by default, with the constitutional requirement of a written waiver strictly adhered to.

Why it is not economically feasible for an assigned counsel to provide truly effective representation

A lot of people, prospective and current clients, complained to me about the quality of assigned representation in court.

The complaints are usually that the assigned attorneys do the following:

1) Do not talk to their clients, do not explain the essence of proceedings, the clients' rights;

2) Steer people into unfair settlements in civil cases (child neglect, child custody) or into plea bargains in criminal cases where the case could be won with proper discovery and motion practice;

3) Waive important rights on behalf of criminal defendants without advising them of those rights or asking whether they want to waive those rights. Usually this is the right to a speedy trial, in one court I saw counsel routinely waive criminal defendants' right to remain silent;

4) in felony cases, assigned counsel routinely waive their clients' time limitation for a felony hearing (144 hours since the arrest and detention), and keep their clients unnecessarily in jail while they can be released for failure to give a felony hearing, and while such a waiver gives the prosecution more time to coach its witnesses; waiver of a felony hearing, which is what assigned counsel regularly do, deprives the defendant of the most significant opportunity before trial to collect statements from the accusers at the time prosecution did not yet have time to coach their witnesses, for impeachment purposes at trial;

5) assigned counsel routinely have their indigent clients waive their right to be indicted by the grand jury (in writing, without explaining what exactly is being waived, or what is the importance of the grand jury proceeding);

even though, sadly, there is a saying that grand juries can indict a ham sandwich, it is not always true.

Grand juries do refuse to indict occasionally, do indict at a lower level than what is requested by the prosecution, and forfeiting the right to be indicted without receiving anything in return, as it often happens in assigned cases, is a gross disservice to the client.  Grand jury testimony of the accusers must also be provided to the defense counsel at trial and can be used for impeachment purposes.

6) I have yet to see assigned counsel who would do motions for his/her client, and even doing routine discovery is very rare for assigned counsel in criminal cases; I never saw any discovery from assigned counsel in Family court cases;

Motions in a criminal case may lead to obtaining pretrial hearings, which may serve to (a) suppress physical evidence, identifications or statements; (b) provide one more source of pre-trial statements from the accusers for impeachment purposes.

7) Assigned counsel practically never engage experts and investigators at county expense, to which their clients are entitled.

Thus, by waiving felony hearings, waiving grand jury indictments, waiving pretrial discovery and motions,  waiving their clients' rights to experts and investigators, assigned counsel deprive their clients of any meaningful way to impeach their accusers at trial, and this way it is easier to steer defendants into plea bargains on terms that could have been a lot better had the assigned counsel did their job properly;

8) clients often complain that it is impossible to have their assigned counsel raise sensitive subjects on motions, such as police, prosecutorial and judicial misconduct.

9) in both civil and criminal cases, people complain that their assigned counsel do not prepare fir trial even if the clients want a trial, with predictable results.

Why all of that is happening?

I see two main reasons, and neither one has anything to do with interests of the clients.

First, economy is bad now, and the market of legal services is shrinking.  Assigned cases provide a source of income to attorneys ($60.00 per hour for.misdemeanor criminal cases, $75.00 per hour for felony criminal cases and for Family court cases). Attorneys who do too much work for their clients, resulting in higher bills to the county per client, do not get assigned again.  Assignments are in the hands of presiding judges.  If the assigned counsel challenges a particular judge for bias, he or she can say good bye to assigned cases from that judge.  For many attorneys, assigned cases constitute a substantial portion of their incomes, and they will not risk their opportunities fir future assigned cases to help one client, no matter what the attorney's oath of office or rules if professional conduct say.

I have yet to see an attorney to be publicly disciplined for neglecting his or her client in any of the above described ways.

Rules of malpractice in New York for criminal cases are such that a criminal defendant may not sue his or her attorney for legal malpractice, unless the criminal defendant first overturns the criminal conviction caused by such attorney malpractice.

It is notoriously hard to overturn a criminal conviction on appeal, and it is practically impossible to overturn a conviction on a plea bargain, especially where part of the plea is a written waiver of the right to appeal.

Therefore, an assigned counsel who did a sloppy job, waived important rights of his or her client for the counsel's benefit and not the client's benefit, and steered the client into a non-beneficial plea bargain, does not have anything to fear, but has the good graces of the judge to gain in.order to secure future financial stability through more assigned cases.

The second reason for sloppy work of assigned counsel is even easier, it is cash flow.

Unlike the private counsel who gets a retainer down at the beginning of the case to cover substantial amount of his/her work, and who is paid by private counsel further, during the case, when the retainer is depleted and who is usually paid a separate retainer if the case goes to trial, before trial, the assigned counsel is only paid at the conclusion of the case.

In other words, the State of New York makes assigned counsel finance litigation in assigned cases, including attorney's services and out of pocket costs such as paper, copying, postage, gas for driving to and from the court, legal research, and that attorney financing of cases is interest-free, no matter how long it takes to bring the case to conclusion - and even then it takes time for attorney vouchers to be approved and paid.

It is then not surprising that assigned counsel's financial strategy is to keep in good graces of judges by not raising sensitive issues and thus keeping assignments coming in, take on many assigned cases at the same time, do the least amount of work requiring out of pocket expenses and bring cases to conclusion as quickly as possible to get paid sooner and keep the cash coming in steadily.  Apparently, if the clients' rights need to be waived to achieve that cash flow goal, the clients are sacrificed, with impunity.

These are purely economic incentives for assigned counsel to do sloppy work fast, and as long as assignments are in the hands of presiding judges and assigned counsel are not paid nor reimbursed for out of pocket expenses or given money for such estimated expenses, same as private counsel are, up front and during the pendency of the case, effective and independent representation of the indigent will remain a myth and a farce which is what it is now in New York.

Is practice of law legitimized slavery in violation of the 13th Amendment? In New York, courts often make it so

Under the common law, legal representation is provision of services.


Provision of services can be done under an oral contract, and performance of the attorney in reliance on a promise to pay constitutes a binding contract supported by consideration.  That is a hypothetical for a 1st year law student.


And, when the promise to pay is broken, and the client refuses to pay, for the past or future services, the contractual relationship is broken, too, and the service provider does not have to provide the service any more.


Yet, in New York at least, it is not that easy.


In New York, the attorney is deemed a "fiduciary" (trusted person), and, if the attorney is not paid, he becomes a highly educated and qualified slave (in court proceedings), even though slavery in this country has been abolished over a century ago.


Courts in New York repeatedly held that failure to pay an attorney is not a good reason for the attorney to be able to discontinue representation and be allowed to withdraw from a pending court case.


An attorney may be ordered by the court to conduct an entire trial for free, in full knowledge that the client will never pay.  It happened to me, and not once.


Are such court orders a violation of the 13th Amendment?  Of course, they are.


Is there a legal remedy to correct the problem?  No, there isn't, because judges are covered by absolute judicial immunity and the U.S. Constitution (which every judge is sworn to uphold as a pre-requisite of holding the judicial office), and 13th Amendment is unenforceable against the judiciary.  Good luck raising this issue on appeal.



Until this system is changed, it is unreasonable for the public to expect that prices of legal services and initial retainers will go down and that affordable payment plans for provision of legal services will become popular any time soon.

What are my chances in court? Depends if the judge chooses to apply the law or run with his "whims" or "quirks", and whether your attorney brown-nosed the judge or pissed him off with criticism

Every litigation attorney faces this question on a daily basis: what are the client's chances in court?


Of course, by ethical rules, the lawyer is prohibited to give the client any guarantees by success, a rule that many lawyers breach, as far as I can judge by what my clients who come from other lawyers, tell me. 


My clients often are put off (at first) by my statement that I cannot guarantee the outcome of representation.


I have to explain to them that this is the ethical rule, binding upon all lawyers, not to give any guarantees of outcome.


That the only thing the lawyer can promise is to work diligently and to the best of his/her ability.


I usually put a lot more hours into my work than I can ever bill my clients for.  My clients know that I am, if anything, a compulsive researcher and that I will not leave any stones unturned, so to say, to look under them for evidence or arguments in favor of my clients.  My clients also know that I always absorb research costs and never bill them for costs of research that I incur, and they were, over the years, considerable.


Yet, all rules observed, a lawyer can still weigh the chances of his or her client and say at least whether it is likely or unlikely that the client, given his facts and the state of applicable law, will succeed in court with his or her case.


One thing I cannot predict though is the "rule of whim", and I see on a daily basis that the rule of whim has swallowed the rule of law in New York state and federal courts.


Female law students are advised to participate in "fashion shows" where they are showed how to dress and how not to dress for a particular judge, whether a judge likes female attorneys in skirt-suits or in pant-suits.


Is is sexist? Of course, it is.  Is it the reality of the courtroom that seasoned attorneys teach law students to consider?  Yes, it is, too.


Very seasoned attorneys in the area told me tales about a certain judge (since retired and now deceased) who was very much into feminine charms, so to say, of young female attorneys, and that was at times when female lawyers were still a rarity.


What male partners in law firms did then, was to hire a young female associate, instruct her to dress up in court in a way to show her "feminine assets" to the greatest advantage for the judge looking down from the bench (including low-cut blouses showing off the female attorney's cleavage), and put her in front of the judge.  As I was told, success was guaranteed.


Naturally, when a judge is giving advantage in litigation to a female attorney (and her client) because she is a young pretty girl and wears what the judge likes (a skirt-suit, not a pant-suit, for example), such a preference and advantage in litigation has nothing to do with the law.




Naturally, if a client asks an attorney about his or her chances in court, if an attorney tells him that such a sexist preference can happen, the attorney, most likely, will be disciplined for "impugning integrity" of a judge who will, of course, claim that he has no such preferences.  

What happens when judges with such "preferences" are allowed on the bench, with impunity, for a long time, has been described in my blog here, here, here and here.




Yet, most of such "preferences" occur in the judge's head, are improvable and do not make headlines.


Judges might have other preferences, which are not necessarily related to the mode of dress of female attorneys.  And the whole country of lawyers pay money to learn judges' whims and quirks in order to win cases, and that is considered "Continued Legal Education", with an ethical (!) component in it.


If that is continued "legal" education, then law schools should be closed because the only thing one should learn is courses in brown-nosing, and that is not taught in law schools.



When attorneys are admitted to practice law, they take an oath of office, even if they only intend to practice law as private attorneys. 


They still take an oath of office as "officers of the court" to pledge loyalty to the Constitution of the United States, of the state where the attorney is licensed, and of the applicable laws.




Nobody asks an attorney to make a pledge of loyalty to the government, including its judicial branch.


And, the government, as public SERVANTS, are just that, SERVANTS of the people as a sovereign, and, as every SERVANT, the government can err, underperform, commit misconduct, do a sloppy job.  


And, as can be foreseeable in the human nature, the less accountable a particular public servant or class of public servants are, the more misconduct can be expected from the and the more sloppy their performance becomes.


Any MBA student and any business owner in charge of any number of staff, as well as any parent will confirm that to you:  the less accountability translates into the lower job performance.


Our judiciary has a virtual zero accountability.  Moreover, judges, as public servants, are also given an uncontrollable right to strike against people who criticize them, to the point of taking away their livelihood if those people are attorneys.


For that reason, the practice of law has become a popularity contest and a contest of scraping and bowing.


Of course, there is an easier way to fix all problems, for yourself or your clients - just marry or befriend a judge, and, as my experience shows, the law will be bent your way and against your critics no matter what you do and no matter how right they are and how wrong you are.


For those attorneys who are not married or befriended to judges, the practice of law remains a popularity contest and a contest in scraping and bowing and catching the judge's attention with silly smiles, silly jokes, campaign contributions, wearing clothes that the judge might like and, of course, failing to criticize any mistakes the judge may be making.


And, under such circumstances, the main features distinguishing the rule of law from the rule of men (absolute arbitrary power of individuals) which was the reason why this country announced its independence from a monarchy to begin with - predictability - disappears and what remains is the rule of men, the rule of whim, the rule of "discretion" understood by judges as an absolute power to do whatever they want.


"It is MY courtroom," "I will not allow you to do that (usually, trying to make legal argument to preserve your client's rights for the record) in MY courtroom".


So - the honest answer that an attorney should give a client seeking advice as to his chances in litigation is "I don't know".


After all, how can the attorney know whether the opponent will or will not present a particularly attractive female (for a male judge) or male (for a female judge) to make their arguments, whether the particular judge has been wined and dined through some secret social networking organizations by your opponent, whether the judge, his relatives or friends have a grudge against the party, his relatives or friends, or his or her attorney.


Predictability of the law became the same kind of myth as the U.S. and state Constitutions which are used nowadays only as tokens to administer oaths of office and, thus, as tokens to grab the power and financial perks that come with that power - but not the responsibility that must accompany the office.


So, your chances in court are as good as the chances of your attorney to get on the good side of the judge.  Is it the law?  No.  Is it the reality of court proceedings in the United States? Yes.