"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Wednesday, April 9, 2014

To pay $359 to "Learn Civil Court Judges' Individual Preferences and Pet Peeves" "without your clients' lives depending on the outcome of the exploration"? Seriously?

As any attorney licensed in the State of New York, I must comply with Continued Legal Education (CLE) requirements.  Such requirements can be complied remotely or by personal attendance.  Once you attend a seminar, you join the mailing lists of companies handling such seminars.  So, I am on one of those mailing and e-mailing lists.

Today I received a notification about a seminar that I believed I must share with the public.

Here it is.   What completely blew my mind are the two headings:

"What Civil Court Judges Want You to Know" and the subheading in the "Program description"  "Learn Civil Court Judges' Individual Preferences and Pet Peeves".

The Program Description is worth quoting in the full:



Learn Civil Court Judges' Individual Preferences and Pet Peeves

What if you could explore the different cultural climates of the judges' courtrooms without your clients' lives depending on the outcome of the exploration? Now you can. Take advantage of the unique opportunity to gain years of courtroom experience in one engaging discussion with civil court judges. Discover what the presiding triers of fact think of the litigation process and learn their personal rules and preferences. Register today!

  • Review the elements of what the judges consider to be a strong case theme.
  • Find out what trial judges think of the use of ADR and its role in the litigation process.
  • Learn tips and tricks to implement in your next set of voir dire questions.
  • Explore the specific nuances of each judge's presiding style so that you can tailor your practice to suit that courtroom.
  • Learn to make expert witness testimony work for - not against - you.
  • Time your objections right to achieve maximum impact without alienating the judge or jury.
  • Review the most prominent ethical dilemmas and get compliance and resolution tips from the judges.
  • Gain judges' tips and pointers for being more efficient and effective in their courtrooms.
  • Identify the most common witness and evidence errors that judges hope you'll avoid.
Get precious face-time with the local judges.
 (An update as of August 28, 2016 - since content interlinked above was removed, I am posting the snippets I made of the e-mail sent to me about that program:

Please, note that " precious face time with local judges" is sold for money - $359 per lawyer.)
The seminar is meant as a "basic-to-intermediate level program", which means it allows entry-level attorneys, fresh from law school, to attend.  In New York, for the first two years out of law school attorneys are not allowed to review CLE materials remotely and must attend such CLE seminars in person. 

This seminar gives attorneys, for the price of $359.00 and full attendance, 7 credits toward the 24 credit requirement of attorneys practicing over 2 years and toward his or her 16 "transitional" credits for the first year and another 16 transitional credits for the second year of practice.

For New York, the 7 hours awarded for this seminar split into 6 hours of skills and 1 hour of ethics.
Since it is CLE seminar for the young attorneys, given for officially approved credit, this is how young attorneys are supposed to be indoctrinated in legal skills and ethics.

Now, I know absolutely nothing about the presiding panel of judges.  I never appeared in front of them, I practice mostly in another area and likely will never appear in front of them in the future.

Since I do not know anything about these judges, I cannot say anything bad about them, and presume they are impartial judicial officers of the court.  I make this presumption on a condition that these judges did not know how the seminar was going to be advertised, and that it will concern their individual preferences, personal rules and "pet peeves". 

The agenda of the seminar which I provided in a separate snippet could be considered neutral and appropriate, if it was not delivered with two headlines on top of it, "What Civil Court Judges Want You to Know" and "Learn Civil Court Judges' Individual Preferences and Pet Peeves".

The organizers of the seminar indicate by these two headlines that civil court judges want litigants and attorneys to "Learn Civil Court Judges' Individual Preferences and Pet Peeves".

A "pet peeve" is "a minor annoyance that an individual identifies as particularly annoying to themselves, to a greater degree than others may find it".

What catches my attention in the context of pet peeves of a judge is that, well, a judge is not supposed to have pet peeves.  If he or she has a pet peeve, he or she is not supposed to humor them, and much less to announce them to the world, at an expensive ethical seminar where attorneys are learning about judges' pet peeves in exchange for a hefty payment and for state-authorized credit as if they are actually learning how to ethically practice law. 

Same refers to judges "individual preferences" or "personal rules".  As we know from the concept of separation of powers, judges are not lawmakers have no authority to make personal rules that may substantially affect litigation.

Once again, I do not know these judges who are members of the upcoming panel.  And I do not know their "individual preferences", "personal rules" and especially their "pet peeves", or, in other words, what irks and annoys them more than other mortals.

But you know what?  The concept of equal protection of laws and the concept of the rule of law presupposes that if I see these judges for the very first time in my life and never paid $359.00 to learn about their "individual preferences" and "pet peeves", my client and I will still have to be afforded by these judges the same protection under the law as clients of attorneys who have been in front of these judges, have been to these "preferences and pet peeves" seminars and know how to navigate waters around these judges.

What concerns me to no end, as an attorney, litigant, citizen, taxpayer and voter, is the teaser in this e-mail flyer that paying for this seminar to learn about personal rules, preferences and pet peeves of judges is risk-free and can be done without jeopardizing my clients' lives.

To me, such an advertising teaser means to me as the target of this advertisement, in my personal opinion, that entering a courtroom and exploring these same preferences, personal rules and pet peeves without a paid sneak preview through such a seminar, may jeopardize my clients' lives.  I cannot accept that.  A judge is supposed to have integrity, impartiality, proper temperament and intellectual discipline to put his pet peeves, personal preferences and individual rules away and treat every single party and attorney in the courtroom equally.

The rule of law presupposes that the law must be applied equally and uniformly, to every party litigant, no matter what is his status, familiarity with the judge or familiarity with the judge's personal rules, individual preferences and especially pet peeves.   In practical terms, if a litigant or attorney has irked the judge's particular pet peeve, the judge must absolutely disregard it and rule as if that never happened.  If the judge cannot make such an effort, he or she must step off the case.  It's called a requirement for impartiality of a judge.

If pet peeves of judges are to be learned for money, with a view to take advantage of them in the future, obviously to the disadvantage of the less knowledgeable attorney opponents or, even worse, opposing pro se litigants, this is not the rule of law, but the rule of judicial whim, which constitutes judicial misconduct and should be eradicated, not catered for and learnt by attorneys for money and CLE credit.

Also, as a practical point, what kind of dialogue is supposed to be had between attorneys and judges, members of the panel?

If attorneys are forewarned in the flyer that attorneys' "exploration" of judges individual preferences, rules and pet peeves in the courtroom can jeopardize their clients' lives (!!), who would dare ask the panelist judges any pertinent questions as to why they even discuss their individual preferences, personal rules and pet peeves with the members of the bar?

As I have written earlier in this blog, there is a clear inequality in such a "communication" "between the bench and the bar": 

Protections of the bench from the bar
Protections of the bar from the bench
Self-imposed absolute judicial immunity for malicious and corrupt acts
If an attorney or his/her client is maliciously and corruptly hurt by a judge, he only can complain to the Judicial Conduct Committee, and has no recourse if the Committee tosses his valid complaint
He cannot sue the judge – as absolute judicial immunity applies
He can be disbarred through retaliative sanctions of a judge imposed because of his complaints or lawsuits
The bench regulates the bar through licensing and sanctions, even if those sanctions are malicious and corrupt
The bar has no effective impact upon regulating misconduct on the bench, in other words, an attorney has no real say in anything that a judge says or does, no matter how wrong, while the judge has a lot of say whether the attorney complaining about him will be able to feed his family and earn a livelihood or not

Does it seem to you like a fair distribution of power for purposes of “communication between the bench and the bar”?

Does it seem to you like a discourse between the independent judiciary and the independent bar?

Instead of having independent advocates for people who badly need such advocacy, what we have is the state of New York authorizing CLE credit to a group of people who are paying money to learn judges’ whims in order to survive and continue to earn a livelihood.

It is certainly not what ethics or the rule of law were supposed to be, in my view.

To have beginning attorneys pay $359.00 and to award ethical credits for an opportunity to "learn the pet peeves" of judges in order not to jeorpadize clients' lives?

Am I missing something or is it an "Orwell meets Kafka" situation?

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