The elevated duty of appellate courts at the time of trial courts' self-forgiveness

With increased caseloads in courts, on the one hand, and cut budgets, on the other, it is no surprise that many court cases are decided in a rush.


While every litigant is (theoretically) entitled to due process of law, diligent review of his or her case, application of the law and the law only, and not of judicial whims, any attorney or party who has ever went through New York court system knows that what the judicial system actually delivers and what it is expected to deliver are two different things.


Time and again I was told as an attorney, during off-the-record conferences, of course, that my client "had better settle, or else".  Sometimes we settled, sometimes we didn't, but the incentive and the fear put into litigants by judges, and unnecessarily put, is real.  I do not believe a judge even has a right to threaten harsher determinations against a litigant if the litigant refuses to settle.


"Or else" meant the so-called "exercise of discretion" in such a way that my client will lose more than he or she could afford to lose.


This way innocent people are coerced into guilty pleas, parents who did not neglect their children are coerced into saying they did, and agreeing to years of abusive and humiliating "supervision" by social services...


And that was happening because the judge, who was not supposed to prejudge the case before all evidence was in, "theorized" that in the event that my client is convicted/ found liable for child neglect, the judge will then convict him for a longer number of years, as opposed to probation and being free, or, in the case of child neglect, a person's child will be kept in foster care longer and will likely be adopted out while the parent is appealing the case and spending his last penny on the appeal.


Moreover, there are a number of trial court judges in front of whom I appeared who view their discretion so broadly as to encompass open disregard of the law and the record.


Their remedy for litigants whose rights judges blatantly violate by openly not following the written law, the case law or the record of the case - "take it up" (appeal).


Of course, what was pled (settled), cannot be appealed - but that is the risk litigants take when settling.


If they do not settle, not many of litigants appeal adverse court decisions - usually because (1) an appeal is prohibitively expensive;  (2) overwhelming majority of appeals are affirmed.


Because of a cavalier attitude of the lower court to disregard applicable law and contents of the record, and because of the high costs of appeals involved, I believe that the appellate courts owe litigants an elevated duty of care - which must have some mechanisms of enforcement.


Instead, appellate judges in New York do not even sign their decisions, a clerk of the court does, and there is no assurance that the judges even decided those cases instead of allowing law students/ interns/ law clerks to do that for them, as quickly as possible, and with a directive to affirm as many cases as possible, even if that means further misrepresentation of the record and further disregard of the law.


I believe that new legislation should be in order imposing a higher responsibility upon appellate judges, higher requirements to their qualifications, requirements to their presence and holding offices where the appellate courts are located, and providing for enforceable and transparent public discipline if the appellate courts, the last hope for many litigants to resolve their cases, blatantly disregard their duties and rule as if they never read the case - which happens often, as any appellate attorney knows...