I posted today a general blog about "local rules" of judges and courts and how unlawful - and unconstitutional - some of them may be.
Judge Fisher's rules are available on the interlinked website of the Greene County Supreme Court in a PDF format.
I will comment on some of the rules of Judge Fisher, those that I consider, in my personal legal opinion, unlawful, biased and some - unconstitutional and causing parties to unnecessarily waste their time and money, and for counsel to unnecessarily incur malpractice liability.
RULE THAT PARTIES MUST PAY COURT’S POSTAGE
Judge Fisher’s rule says that if you send a letter to the
court, in order to receive a response from the court parties and counsel must
send to the court a postage-paid return envelope, otherwise Judge Fisher will
not send her answer, but will leave the answer for a pick-up with the court, no
matter how far the counsel or party must travel for that pick-up.
New York law does not support Judge Fisher’s requirement
that parties and counsel must pay the court’s postage.
RULE OF REPEAT NOTICES OF APPEARANCE UNDER A THREAT OF PENALTY
Judge Fisher’s rule requiring Notice of Appearance and
acknowledgements of rules from counsel when Judge Fisher steps into cases where
Notices of Appearances were already filed previously, does not comply with
existing laws or court rules and are nonsensical.
Parties in civil cases should not be required, under the
threat of penalty from a judge, to pay more money to their attorney and incur
legal fees for filing unnecessary documentation, especially given the usual
attorney’s hourly rates.
RULE OF CHANGE OF COUNSEL CONTRARY TO THE CPLR AND CONSTITUTIONAL RIGHT OF SELF-REPRESENTATION
1/ Judge Fisher requires that change of counsel from an
attorney to a pro se party must occur only through an Order to Show Cause. Such a requirement is not supported by New
York State Law, CPLR 321.
By making such a requirement, Judge Fisher unduly interferes
into the right of any party to represent himself or herself without asking
Judge Fisher for permission to do so.
Judge Fisher’s rule violates parties’ constitutional right
of access to courts through counsel of their own choosing, which can be
themselves.
2/ Judge Fisher acknowledges change of counsel between
attorneys “by stipulation” - see subsection (B) of Judge Fisher's Rule 6.0. Such
stipulations are not supported by New York state law, CPLR 321(b).
CPLR 321 recognizes change of counsel by either notarized
consent of party or court order.
RULE REGARDING ENDING THE CASE BY A SETTLEMENT
Normally, when parties file a stipulation of discontinuance with the court (and the defendant pays - I do not know why the New York law imposed this cost upon the defendant, but that's the law - the $30 filing fee to file such a Stipulation of Discontinuance) of the action, the lawsuit is over, and the court's jurisdiction is over.
Not so in Judge Fisher's court.
Here is Judge Fisher's rule:
So - if parties, after filing the Stipulation of Discontinuance, "did not comply with this Rule", that is, after jurisdiction of "Judge Fisher's court" has ended, then what? Judge Fisher will grab jurisdiction back to punish parties for not telling her personally that they settled?
RULE OF MOTIONS ADDRESSING DISCOVERY
New York law is very particular about motions addressing discovery.
There are statutory rules and court rules.
Court rules require good faith efforts to ensure compliance with discovery prior to making a motion and filing an attorney affirmation of good faith with the motion to compel discovery or for other appropriate relief (to preclude use of non-disclosed evidence at trial or for a dismissal/summary judgment).
Judge Fisher goes further. She requires that no motion addressing discovery is filed without a conference
- thus practically mandating parties to incur travel and attendance fees for their attorneys, and expenses for themselves (daycare, leave from work, travel etc.) - which is not mandated by statute or rules of the New York State Court Administration.
RULES REGARDING ADJOURNMENTS OF APPEARANCES AT CONFERENCES
Judge Fisher requires physical appearances at “final”
conferences, allows adjournments of conferences only for medical pain (and even
then, reserves a “right” to still require appearance despite such pain, in
violation of federal HIPAA, Americans with Disabilities Act and Due Process
Clause of the State and Federal Constitutions) and does not recognize
long-distance travel to a conference as a good reason not to appear.
There is no “discretion” for a judge not to give adjournment
for medical reasons in view of a documented medical condition. Federal law in this case pre-empts any
inconsistent state law.
There are medical conditions that are not painful, but nevertheless disabling, and even life-threatening. Obviously, they are not considered by Judge Fisher as good reasons to adjourn a court conference.
There are many reasons why a person cannot appear at a conference, from death of a loved one to impossibility to get a leave from work, where livelihood of the party's family depends on the party's holding on to the job that may be lost if the party is going to conferences every so often (and litigants do lose jobs because of frequent court appearances).
If Judge Fisher worked for 18 years prior to the bench as an attorney (as she states in the podcast interview interlinked above), and since she worked in the public defender's office, as her official Facebook election campaign page states, she should know that much.
If she knows it and still makes a requirement for a severely restrictive list of "good reasons" for an adjournment - she does it deliberately, that's the only reasonable explanation that I can find for this rule.
Conferences are a profound waste of time, many judges are using conferences and "mandatory appearances" at such conferences to drain resources of parties and frustrate parties into a settlement, thus clearing the judge's docket.
These tricks have nothing to do with proper administration of justice, and Judge Fisher knows it, no doubt, having practiced for 18 years prior to coming to the bench.
There is absolutely
no reason why all conferences cannot be held by phone, and requirement of
physical appearance by any attorneys or parties is nothing other than a desire
to exercise control and cause submission of parties and counsel, without regard
whether it is necessary or not.
RULE OF TRIAL SUBMISSIONS
Judge Fisher requires all “evidence” to be submitted by all
parties (Plaintiffs and Defendants alike) a week before trial, and otherwise
threatens with a possibility of precluding introduction of evidence at trial.
This way, Judge Fisher unduly advocates for the plaintiffs’
side, in violation of the requirement for the adjudication to be neutral,
because Judge Fisher requires the defense to make its case known, including
impeachment evidence, before the Plaintiff makes their case, thus teaching the
plaintiffs how to sue the defendants more efficiently and how to preclude all
of their defenses.
It appears that Judge Fisher wants her trials to be not trials where unexpected things can happen, like impeachment of witnesses, but should be as close as possible to motions for a summary judgments, with no surprises at any time at all.
Such a position (my legal opinion) certainly undermines the very principle of adversarial justice which is the cornerstone of the American justice system.
RULE OF JURY INSTRUCTIONS AND VERDICT SHEETS
Judge Fisher requires jury instructions to be drafted by
parties "working together" and then submitted to Judge Fisher a week before
trial.
Judge Fisher also requires verdict sheets also to be submitted a week before trial (even, I understand, when the verdict sheets are special interrogatories to juries that can only be formed on the basis of what evidence was submitted at trial).
This requirement is clearly pro-plaintiff, and puts Judge Fisher in the shoes
of an advocate for plaintiffs (usually, corporations suing in her court) and
against defendants, usually common people, often pro se or poor.
Defendants do not have to put on any case in a civil or
criminal matter.
Plaintiffs have to.
Defendant’s counsel’s role often is not to wait what kind of
case the Plaintiff puts on to then fashion jury intructions that point out
Plaintiff’s errors.
To require a defendant to draft jury instructions together
with the plaintiffs and then file such jury instructions a week before trial is
to require a defendant to teach the plaintiff how to sue and win against the
defendant better.
Such a requirement runs contrary to the contractual and
ethical obligations of counsel to defendants and may subject counsel to
malpractice liability.
Such a requirement is clearly unlawful.
I had judges trying to force me, as a defendant’s counsel,
in civil or criminal cases, to submit instructions before the end of the
Plaintiffs/prosecution’s case. I always
argued that such a requirement undermines the adversarial nature of justice and
requires me as defendant’s counsel to work for the plaintiff, to the detriment
of my client.
RULE OF POSTTRIAL SUBMISSIONS AFTER BENCH TRIALS
In a bench trial Judge Fisher goes even further than in jury
trial cases and imposes more obligations on trial counsel than in a jury trial.
After bench trials, Judge Fisher requires parties to submit
the following:
·
Final statements of facts citing to the record of evidence submitted at trial;
·
Conclusions of laws;
·
Memorandum of Law in the form of an appellate
brief;
·
Printouts of all authorities, including
statutes, cases and regulations to which the Memorandum of Law refers
Now.
In a bench trial Judge Fisher is a factfinder and the
PROVIDER of the law.
Parties are entitled to an oral closing argument as a matter
of law.
Parties sometimes ASK the judge to ALLOW them to make their
closing arguments in writing.
It is simply a matter of convenience to both the court and
the parties to do that after the court proceedings, as it gives parties more
time to prepare.
Closing arguments must be done within the trial and not
after the trial.
Once again, it is a concession, on request of a party, and
cannot be a REQURIEMENT of the court to ALL parties.
Moreover, what Judge Fisher requires sends a clear signal
that neither Judge Fisher nor her court attorney want to actually do their job,
review the record and research the law.
Instead, they want to decide the case as if it is a summary
judgment – with a digest of the facts and the law provided to the court
multiple times in conferences, pretrial submissions and now in a post-trial
submission.
New York state does not support requirement that parties
after a trial must file with the court what Judge Fisher requires parties to
file.
Moreover, even in appellate courts there are no requirements
to submit every single legal authority cited, printed out, as an attachment to
the Memorandum of Law. That is not only
a gross waste of paper (some cases run on 100 pages, while only one issue is
used and referenced through a citation in a Memorandum of Law), but also a
gross waste of attorney’s time and the party’s money. Submitting the legal authority to Judge Fisher "by e-mail" does not obviate printing and scanning, which involves hours of work.
Apparently, Judge Fisher makes parties do her own and her court attorney's work, and pay for it.
In fact, parties should not be MADE to pay their attorneys for post-trial
work, especially as extensive as preparing an “appellate brief” based on record
after a trial.
Appellate work is expensive specifically because it requires
hours of research and hours of working with the record on appeal.
Judge Fisher requires that appellate work to be conducted by
trial counsel post trial.
It is clearly better to go in for a jury trial, refuse to
submit defendant’s jury instructions to Judge Fisher until the end of the
plaintiff’s case – and address Judge Fisher’s refusal to recognize such jury
instructions on appeal – than waive your constitutional right (under New York
State Constitution) to a jury trial and receive in exchange the requirement to
do appellate work, at appellate cost of thousands of dollars, post-trial to
allow the judge to not do her work as a fact-finder.
The sum and substance of the rules of Judge Fisher shows:
1) Judge Fisher is more concerned by form than by substance and fairness of the litigation;
2) Judge Fisher is extremely pro-plaintiff, to the point of advocacy for the plaintiffs through her rules;
3) Judge Fisher disregards the law, including constitutional law, to assert her authority.
Not good, and this is only her first year on the bench.
