Discovery in Family Court proceedings is routinely neglected by assigned counsel

Several readers of my blog alerted me to a problem with assigned counsel in Family Court proceedings - that counsel assigned to them pursuant to Section 722 of the New York County Law, do not do any discovery before trial, do not do any pre-trial motions and do not do any applications for funds for experts and investigators, despite, oftentimes, a dire need for such experts and investigators in particular cases.

Often, people who are speaking to me (prospective clients or simply readers of this blog), while being well into Family Court proceedings, do not even know what discovery is, and claim that their assigned counsel refuses to speak to them, dedicate any meaningful time to them, and did not do any discovery or pre-trial motion that (often reasonably) the clients ask the assigned counsel to do.

I cannot stress enough how valuable pre-trial discovery is for the success of the trial.  It may be, of course, trial strategy of counsel not to do discovery.

Yet, with assigned counsel, since, based on my own experience with Family Court and assigned counsel for opponents of my clients, what it appears to be is not any kind of trial strategy, but a uniform unspoken rule of not doing discovery.

I do not know what is the reason for it, I can only guess.

Assigned counsel is paid by the County where proceedings are conducted, and there are no restrictions on pay for such a necessary work as pre-trial discovery ("reasonable expenses out of court"), unless, again, there is an unspoken rule to assign only counsel who does not do "excessive" work for their clients, such as discovery and motions, and assigned counsel are concerned for their future earnings and do not do discovery (and pre-trial motions) in Family Court for that reason, which has nothing to do with their obligation to their client in the assigned case.

Assigned counsel has power to file ex parte applications in New York, pursuant to New York County Law 722-C for experts and investigators.

In fact, the soon departing Delaware County and Family Court Judge Carl F. Becker has made a point and a policy to repeatedly deny my clients who were eligible under County Law 722-C to receive funds for experts and investigators, their entitlement to those funds funds unless they agree to assigned counsel by Judge Becker instead of me, a private counsel hired by my indigent client's relatives, even though such policy was blatantly unlawful.

Thus, for Judge Becker (and, as far as I know through my own experience and reports of my clients and my readers) entitlement to funds under County Law 722-C are tied to having assigned counsel.

Therefore, an assigned counsel in many courts is the only path to get funds from the court for experts and investigators to do pre-trial work and prepare for trial testimony.

Yet, after years of litigating in Family Court, I have yet to see where an assigned counsel would apply for such funds for experts and investigators and who would present such experts and investigators and their work at trial, and that pertains to proceedings in custody, visitation, Article 8 family offense proceedings, child abuse and neglect. 

What can I say...

The indigent client must know their rights - and should be able to demand from his or her assigned counsel to do their job before trial - or ask the court to change counsel as providing ineffective assistance.

Having or not having done discovery (demands to produce, interrogatories, depositions), subpoening or not subpoening records from public entities for trial (DMV records, criminal records, social services records) which requires a motion to the court, or not doing that, subpoening or not subpoening trial witnesses, asking or not asking for funds for experts and investigators and having them do their work and present it at trial, may constitute a difference between winning and losing your custody, visitation, family offense or child neglect/abuse case.

Know your rights and insist on them.