Yay! We started to publicly discuss judicial misconduct - in cartoons. About murder cases in death penalty states. Where the only way a criminal defendant can call attention to ineffective assistance of counsel is to throw "F" words at the judge. And - the public is laughing...

A Utah judge, Scott Johansen, a white male, removed a foster child from a gay couple and placed the child with a heterosexual family citing her "research" that such a placement will be in the best interest of the child.

That is the same judge who sentenced a 13-year-old girl to 30 days' incarceration and 276 hours of community service for cutting the hair of a 3-year-old without her consent - and offered to the young defendant's mother a "deal", to humiliate the girl in the courtroom by cutting her own ponytail in exchange for a sentencing reduction.  Judge Johansen even provided scissors for the "ponytail-cutting sentence" - which was clearly in violation of 8th Amendment.

There were calls for the judge's impeachment, but Judge Johansen was not removed or disciplined.

A Michigan Judge Lisa Gorcyca, a white female, incarcerated three children because they refused to spend time with the father they claimed abused them and their mother - lashing out at the "disobedient children", including holding in contempt of court a child who was not subject to any court orders.

"Coincidentally", the lashing out against the child occurred after another child's testimony caused a million-dollar verdict against Gorcyca's husband, for wrongful incarceration of two parents and for splitting a family - exactly what Gorcyca did in retaliation, against a completely different family, see my blogs here and here.

Here are Judge Gorcyca with her former DA husband.

Judge Gorcyca was reprimanded for her shenanigans, but was met with a standing ovation in court arranged by herself, her husband and over 100 attorneys practicing in front of her - a real show of defiance and disregard of any discipline imposed on her.

A Texas judge Kerry Neves posted on Facebook a warning that he will not accept plea bargains in cases of assaults on police officers, a clear case of bias and prejudgment based on the identity and status of the alleged victims, and coupled that decision with an order indicating that he will not accept plea bargains in such cases unless there are "compelling reasons" for such bargains - but that order did not apply to criminal cases where the alleged victims were not police officers.

Judge Neves is a white male, and

a "true Republican we can trust" (whatever that means nowadays) who appealed to potential contributors to his election campaign with the following statement:

I guess, police officers and their associations or law firms representing them contributed generously.

Of course, the defense attorneys association stated that defense attorneys expect the judge to recuse from cases which he already prejudged, and, of course, the prosecutors said that the judge's statements did not affect his impartiality.

A federal judge in Milwaukee, Raymond Randa,

was just criticized by the U.S. Court of Appeals for the 7th Circuit for engaging in "there went the neighborhood" reminiscences at sentencing, and in comments on protests in Baltimore regarding police brutality, which had nothing to do with the case.

The court said:

“A reference to general deterrence or protection of the public would have been proper, see 18 U.S.C. § 3553(a)(2)(B), (C), but blaming Robinson indiscriminately for everything wrong in that neighborhood would not.”

And, there is a recent report about shenanigans of a Wisconsin Judge James Troupis, who, as an attorney, was reportedly involved in secretive and politically charged redistricting scheme, and gave advice to detain Democratic Senators to prevent them from leaving the Senate during voting and preventing the vote from going through on quorum grounds.

Judge Troupis was, before he took the bench, reportedly a "leading attorney on conservative causes".

Judge Troupis resigned in May, claiming that the full-time judgeship position did not allow him to "attain to the estate of his mother, who has died last year".

Yet, as busy as Judge Troupis was with the estate of his mother, he still found time to waste taxpayers' money - and caused two people to incur giant attorney fees and made a little boy, at least temporarily, and unnecessarily, an orphan - because of his personal beliefs that having a child through a surrogate mother is a form of human trafficking.

Here is the hero, former judge James Troupis:

And, I recently wrote about a Kentucky judge Tim Philpot who wrote a book about his courtroom experiences and turned his court proceedings into a for-his-own-profit reality show.

A Georgia judge Bryant Durham Jr., who proudly makes known that he was raised by missionary parents, ordered criminal defendant in contempt, sentenced him to many days in jail, called him "looking like he is 'queer'" and discussing with the defendant that the defendant may be raped in prison - simply because the criminal defendant asked for a competent public defender, correctly stating that the public defender obtained just 4 pages through discovery, which is completely inadequate for effective defense in a murder trial.

The judge denied the defendant a new counsel, and mocked the defendant, through a series of question, trying to point out it would be stupid for the defendant to represent himself, but that the defendant has no other choice - either represent himself or accept the incompetent attorney Judge Durham imposed upon him.

The defendant then lashed out with a series of offensive and threatening comments about the judge, and the judge, instead of recusing, engaged in spewing vulgarities at the same level and punishing the defendant, while he was clearly biased and, as a victim of the defendant's threat, disqualified from continuing to preside over the case.

The result?

The media had a ball.

And, a cartoon was created based on the court transcript.

Ha-ha-ha.

The criminal defendant is spewing vulgarities at the judge.

Ha-ha-ha.

The judge is holding the criminal defendant who is threatening to kill the judge and his family in contempt, calls him "looking like a queer" and as much as promises him that he will be raped in prison.

The public is merrily laughing in the background, watching a merry cartoon.

A merry cartoon of a criminal defendant resorting to threats against the judge because the judge denied him effective representation in a murder trial - in a death penalty state.

Ha-ha-ha.

Here is the comic judge from the death penalty case in the State of Georgia, Bryant Durham Jr.

These are just the recent news reports about judicial misconduct.

All of judges involved are white, and predominantly male.

All are imposing their views upon litigants in the courtroom instead of doing their job - applying the law.

Some of the victims of judicial misconduct I described here are likeable, some are not.

But, the rule of law is the rule of law because it is supposed to equally apply to all, likeable and non-likeable people.

Early on in this blog, over 2 years ago, I wrote about a continued legal education (CLE) seminar for lawyers teaching them about the whims of judges - in order to win cases.

I wrote of a female attorney trying to cater to those whims to the point of considering a gender and voice-change surgery and undergoing transgender voice therapy - in order to survive in the old white religion-proselytizing Republican male-shauvinistic environment of "the law".

Remember that joke - "a good lawyers knows the law, a great lawyer knows the judge"?

Not funny.

Especially for pro se litigants or for those who have no money to respond with contributions to judicial campaigns.

I wrote at that point, and I continue to insist that judicial whims, personal views and preferences should be left outside of the courtroom.

Otherwise, we have what we have, as described above.  The rule of ...

We have a mess.

New York Court of Appeals has disgraced itself with the decision claiming that transcripts from electronic recordings of courts "not of record" do not constitute full court record for purposes of appeal

In United States, and in the State of New York, there is a distinction between courts "of record" and "not of record".

Courts "not of record" are courts where record is not officially kept by a court stenographer.

It is reported that in some states of the United States, courts not "of record" do not have the power to fine or imprison litigants - specifically because, in the absence of record kept by the court, defendants' constitutional right to appeal does not exist.

Yet, many courts in New York that hold the power to fine and/or imprison litigants are not courts of record, such as:

1. local justice courts - that has the power to:
1. impose fines for violations and misdemeanors;
2. imprison criminal defendants for up to 1 year on a single misdemeanor count - more than 1 year for more than 1 misdemeanor count, and
3. to detain a felony defendant pending the action of the Grand Jury;
2. Family Courts - imposing fines and sending litigants to jail for civil contempt of court.

Both justice courts and Family Courts in New York do not employ stenographers to record court proceedings.

Judges in justice courts do not have to be attorneys and do not have to have any formal education whatsoever.

Judges in Family Courts have to be attorneys, with a minimum of 10 years of experience to run for that judicial seat.

Both courts "not of record" use the alternative system of creating a record though - audio recording, which is often MORE dependable that transcripts created by court reporters.

Actually, court reporters themselves use software that creates a parallel audio recording form which the court reporters create transcripts - yet, in two states so far, Georgia and Louisiana, legal proceedings were commenced to get access to those audio files, to be able to prove that transcripts differed from the original audio recordings.

In Louisiana the proceedings resulted in suspension of the attorney seeking such inormation, Christine Mire.

In Georgia, proceedings were dismissed by judges who were covering up their own misconduct, and criminal proceedings were commenced against both the attorney and the attorney's client, a publisher, seeking such information.

In New York, recordings of a court proceeding are actually prohibited by Civil Rights Law 52, making it a crime to so record, and my federal lawsuits to declare Civil Rights Law 52 unconstitutional, resulted in dismissals "for frivolous conduct" with sanctions against me and my client on whose behalf I was raising that issue.

Therefore, the use of audio-recording software by stenographers, and by judges in Family and justice courts allowing, without a separate court order, per each proceeding, to audio record court proceedings, is arguably a violation of criminal law, Civil Rights Law Section 52 (the statute prohibits "televising, broadcasting or taking motion pictures of court proceedings").

Yet, the use of audio and/or video recording is the most reliable way so far of creating a court record.  One can rely upon an audio recorder to create a true record, as compared to transcripts of stenographers who can cook transcripts to cover up misconduct of a judge, and, at the very least, if the audio file is cooked, as it was done in Louisiana to cover up misconduct of judge Phyllis Keaty, the fabrication is ascertainable by tangible technical means.

I wrote recently about fabrications of transcripts that I know of, from the Internet or from personal experience.

None of the stenographers involved were disciplined as far as I know, and all of the stenographers involved continue to be employed by the respective court systems.

Moreover, I wrote on this blog about stenographers being Facebook friends of a judge's law clerk.  While the law clerk in question hid her Facebook friend list after I ran the blog, the fact that a situation exists where stenographers are friends of the judge or the judge's law clerk, strips record of proceedings from presumption of authenticity, especially where the issue of judge's misconduct or bias are raised on appeal and where the record is created specifically to provide an opportunity for an appeal.

The situation where the supposedly neutral stenographer satisfies the presiding judge's or referee's whim to fabricate the record runs throughout courts and states - here I reported documented cases from New York, Louisiana and Georgia.

Recently, New York State Court of Appeals made a mockery of criminal defendants' right to appeal, playing up the technical requirements of a statute pertaining to appeals from justice courts as not "courts of record".

In People v Smith, the NYS Court of Appeals has ruled in June of 2016 that the requirement of filing an "affidavit of errors" after a conviction in a justice court (court "not of record") is not a waivable technicality, but is a jurisdictional requirement, which is not overcome even by filing of the actual transcript of the record actually made from the audio file.

People v Smith affected many appeals of criminal convictions and civil judgments pending from justice courts, but did not receive much coverage in the legal press.

Let's go once again over this triumph of formality over common sense, fairness, due process and criminal defendants' right to access to court on appeal.

A court "not of record" is a court where record of proceedings is not kept.

If record of a proceeding, especially of a criminal proceeding, is not kept, such a proceeding lacks constitutionality and, in many states, such a court may not impose fines or send a person to jail without such a record.

To CORRECT that CONSTITUTIONAL PROBLEM, which was not corrected by the New York State Legislature in Criminal Procedure 460.10 requiring a criminal defendant to file an "affidavit of errors" when appealing from a criminal proceeding.

Imagine a pro se defendant or his attorney being charged not only with doing their job at the arraingment, motions, conferences and trial, but also REMEMBERING all the errors made by the judge in order to then preserve those errors in the affidavit of errors for purposes of the appeal.

Imagine that the appealing attorney is different from the trial attorney - happens all the time, many attorneys specialize in trial work vs appellate work, and do not do both.

Imagine that the defendant who was present at the trial is not trained in the law (as it usually happens) and/or does not possess of a photographic memory to remember all errors made by the court.

Imagine also that the NYS Court Administration requires judges of justice courts, by an administrative court rule, to create audio recordings of court proceedings.

In practice it looks like that - a judge of a justice court has a laptop with recording software which the judge must turn on when any court proceeding starts, and that would include any and all proceedings, such as arraignments, calendar calls, conferences, motion hearings, pre-trial hearings, trials, sentencing hearings and violation of probation hearings - as well as all hearings in civil proceedings handled by justice courts.

Once again,

• a court rule - but not a statute - exists requiring judges to create an audio recording of court proceedings; 
• the statute, CPL 460.10, only requires an "affidavit of errors" for purposes of filing a Notice of Appeal and is clearly unconstitutional because it allows courts "not of record" to handle criminal proceedings that result in incarceration up to 1 year PER COUNT of criminal charges - so that if there are many counts to run consecutively at sentencing, a person can be sentenced by a judge without an ascertainable education or training, and by a court without a record, to MANY YEARS of jail time;
• judges of justice courts are disciplined as for judicial misconduct for NOT recording proceedings - as it recently happened to the Delhi Town Justice Richard Gumo.

And, as it was recently held in my case by the Appellate Division 3rd Department - and my constituitonal appeal dismissed by the New York State Court of Appeals - a clear and unambiguous wording of the statute which 3 intermediate jurisdictions out of 3 in the state of New York regard as jurisdictional, may be disregarded "as a mere irregularity".  I will run a separate blog about that legal wonder.

Yet, while violation of one jurisdictional statute, CPLR 2103 (service of process by a party in the proceeding) was held as a "mere irregularity", and the New York State Court of Appeals agreed, dismissing my constitutional appeal made on equal protection, due process and access to court grounds because,

• had I filed my lawsuit in the 1st, 2nd or 4th Departments, I would have won - by default, but since I
•  filed in the 3rd Department, I lost -
• with sanctions for frivolous conduct,
•  attorney fees (a total of over $10,000),
• an anti-filing injunction and
• a threat of criminal contempt proceedings allowed to be filed against me, should I dare to sue that party again (who is, coincidentally, a part-time judge) without permission of court, and
• the criminal contempt proceedings were allowed to be filed against me not through the grand jury proceedings, as is required for criminal proceedings in Supreme Court in teh State of New York, but through a mere motion to be filed by a private party.  And, the 3rd Department did not see any constitutional problems about that, as well as the New York State Court of Appeals.

My jurisdictional statement to the New York State Court of Appeals fully describing the split between the 1st, 2nd and 4th Departments, on one side, and the 3rd Department, on the other side, is available here.

On June 20, 2016, the New York State Court of Appeals rejected jurisdiction over my constitutional appeal as of right regarding the split claiming that there is no "substantial constitutional question involved".

So, when 3 appellate courts read a statute one way and would have granted me the victory in a lawsuit, and 1 appellate court read the same statute as unnecessary to follow - and punish me as a result - that is not a discrepancy of constitutional proportions in the eyes of the New York State Court of Appeals.  As I said, I will dedicate another blog to this continued split and continued problem, where the New York State Court of Appeals sacrificed rights of all litigants in the 3rd Department only to be able to hurt me, for criticizing the Chief Judge Janet DiFiore for corruption (you can run "Janet DiFiore" in the search window on the right to see my blogs about her).

While the Legislature created clear and unambiguous statutes, and while all the Legislators and all judges are sworn to uphold the U.S. and the New York State Constitutions as their primary duty, the Legislators issue statutes which are facially unconstitutional - such as allowing:

1) justice courts and
2) Family Courts

to be

• "not courts of record", while
• being allowed to
• impose fines,
• send people to jail, and
• infringe on constitutional parental rights, including taking away children, for periods of time, or for good.

Yet, let's look at the mess created by the Legislature as to appeals from one type of the "court not of record" - the justice courts - as compared to the other court "not of record", the Family Court.

Both of these courts are courts "not of record".

Which means that, in both of these courts, stenographers are not present at the proceedings, and thus, official record is not taken.

In both of these courts, by court rules, audio recording of proceedings is required.

In both of these courts, transcripts of such proceedings are obtained, in the case of assigned counsel, at taxpayer expense.

Yet, when the appeal is taken from Family Court, no "affidavit of errors" is required to be filed, as a PRE-CONDITION of appeal proceeding, and in justice courts, in the case of criminal convictions, with more far-reaching consequences, an appeal is rejected if the affidavit of errors (memorializing errors of the court over lengthy and multiple hearings that the defendant or his attorney might not be physically able to remember) is not filed, even if the transcript of the ACTUAL RECORD, made from the ACTUAL AUDIO RECORDING IS FILED.

This is a triumph of stupidity, ladies and gentlemen, and this is what happens when you put a prosecutor who was caught, multiple times, in misconduct and corruption, such as Janet DiFiore, as the head judge of the State Court.

People v Smith decided on June 23, 2016, and Neroni v Follender, decided on June 20, 2016, created a conceptual mess as to appeals from "courts not of record", and as to statutory interpretation.

People v Smith raises big questions as to statutory interpretation, separately, and constitutionality of state statutes governing authority and jurisdiction of courts "not of record" in the State of New York, separately:

1) what is the scope of judicial "discretion" in interpreting clear and unambiguous statutes?  Why not following the clear and unambiguous language of CPLR 2103 (a party may not serve process in its own proceedings) is considered a "mere irregularity" by 1/4 of appellate courts - and the New York State Court of Appeals agrees with the 1/4, without an explanation, while the same New York State Court of Appeals insists on asserting that violating of a completely non-sensical requirement of CPL 460.10 to file an "affidavit of errors" - even if a BETTER record, a transcript of the audio recording - is available, is a jurisdictional bar for a criminal appeal?

2) Was Neroni v Follender, agreeing without an opinion, with the 3rd Department's interpretation of violation of CPLR 2103 as a mere irregularity - while three other Departments consider the same as a jurisdicitonal defect - overruled by People v Smith within three days of Neroni v Follender, by holding that where the language of the statute is "plain", violation of that statute is a jurisdictional defect and not a "mere irregularity"

3) Now that the New York State Court of Appeals has ruled that transcripts created from audio recordings by the transcriber who was not present at the actual court proceedings, do not constitute the full stenographic record of proceedings, and a "court return" is required in response to appellant's required "affidavit of errors" - what does it do to appeals from Family Courts?

If a similar procedure is not required in Family Court - and it is not now - appellants from justice courts may claim violation of equal protection in procedures set in two "courts not of record", in accordance with People v Smith - where in justice courts electronic recording and further transcription of such recording is not considered enough of a record to even allow an appeal, and in Family Court the same is considered enough of a record.

The situation is aggravated by the fact that

1. expecting the criminal defendant or his attorney to do a better job with an affidavit of errors than an audio recording of lengthy, often multi-date appearances and hearings, non-sensical;
2. putting upon an appellate attorney (if he or she did not try the case) the obligation to "pick the memory" of the trial attorney or defendant puts a non-sensical and insurmountable burden upon all individuals involved; and
3. expecting a court where judges are not required to be lawyers or to have any ascertainable degree of education to create a better "return" and "court record" than an audio recording or a stenographer can do - as compared to not requiring Family Court judges, attorneys with a minimum of 19 years of education (school K-12, college - a 4 year degree, law school - 3 years) and a minimum of 10 years of experience as attorneys, to create such "return" or "record" in the same situation where the court is not a court of record, and where the only recording done is electronic recording not provided for in the jurisdicitonal statute.

So, more is required from judges who are allowed to be completely illiterate than from judges who are attorneys with 19 years of school, college and graduate education and 10 years of experience.

That is a due process, equal protection and access to court problem that appellants from New York justice courts can readily challenge in federal courts after People v Smith.

Moreover, if New York State Court of Appeals insists that the electronic record created in local justice courts - and in other courts of record - is not an equivalent of the actual court record, then the court's obligation was to actually appear proceedings in such courts invalid as unconstitutional, because a person may not be deprived of liberty or property without due process of law, and where the court is "not of record", and the transcript from this court does not constitute an "equivalent of court record", such courts should not be allowed to handle proceedings involving people's constitutional rights.

Otherwise - who does one ascertain that the courts are doing their jobs and are not violating those constitutional rights.

New York State Court of Appeals, by its decision in People v Smith, also undermined the so-called "domestic relations deference", a pretext used by federal courts to dismiss civil rights cases arising out of Family Courts with a claim that "traditionally" domestic issues can be handled by Family Courts just fine.

Well, not so fast - because, as the highest court of the State of New York just ruled in People v Smith on June 23, 2016, transcripts of such proceedings do not constitute proper record of such proceedings because the transcript is not made by a person present at the proceedings:

If transcripts of a court "not of record" are not real records of court proceedings of those "courts not of record"  - incuding the Family Court - how can the federal court be sure that Family Courts can handle constitutional issues in such proceedings "just fine"?

Especially where judges of Family Court, in their "discretion", claim that raising constitutional arguments in "their courts" is (1) frivolous (Carl Becker's sanctions against me resulting in suspension of my law license) and (2) constitutes "lying" (judge Frank B. Revoir Jr.'s statements on record which New York State Commission for Judicial Conduct refused to take up for discipline against Judge Revoir).

One thing is clear - when incompetent, corrupt and partisan judges are handling issues of constitutional importance without actually properly reading what is in the record - we have the mess created by People v Smith.

A summary:

the New York State Court of Appeals declared that:

1) violation of a plain statute is a mere irregularity - by agreeing with the 3rd Department in Neroni v Follender on June 20, 2016 (interpretation of violation of CPLR 2103 as a "mere irregularity" rather than a jurisdictional defect - as interpreted by the 1st, 2nd and 4th Department);  that

2) violation of a plain statute is a jurisdictional defect - in People v Smith as to CPL 460.10 requiring the filing of an "affidavit of errors" in an expectation of a "court return" created by an illiterate non-attorney judge, which somehow is a court record more authentic and of better quality than the filed transcript from the audio recording of the same court proceedings;  and that

3) transcripts from audio recordings from court proceedings of courts "not of record" (in New York, such courts are justice courts AND Family Courts) are not "true records" of such court proceedings.

I will report on any constitutional challenges filed in connection with the non-sensical decision in People v Smith, which is clearly a result-oriented case aimed at cutting off the ability of criminal defendants to challenge incompetence and misconduct of illiterate judges in New York justice courts, but inadvertently upended ALL rulings in New York Family Courts.

Stay tuned.

New Jersey refuses to discipline an attorney for criticism of a judge on the Internet

As an attorney whose license was suspended for criticism of a judge committing misconduct in motions to recuse, I keenly monitor news as to discipline of attorneys for public statements criticizing the government, and especially the judiciary.

In a new development on this issue, the New Jersey Supreme Court recently refused to discipline an attorney who first agreed to pull from his personal website an article criticizing a judge's actions in a certain court case, and then did not actually remove that criticism.

While attorney #JayChatarpaul insisted that criticism of Judge Christine A. Farrington for bias and errors committed during a court proceeding that he described on the Internet was protected by the 1st Amendment - and the court, apparently, agreed with him - the sad reality is that attorney Chatarpaul actually removed that content from the website - it only remained visible through Google search, and even that became the subject of persectuion on behalf of attorney disciplinary authorities.

So, while it is a victory, the victory is incomplete since the attorney's speech was still chilled and the attorney was intimidated by the potential to lose his license and livelihood into pulling the "offending" content criticizing the judge.

But, at least there is a decision refusing to punish an attorney for criticizing a judge in the first place.

So, New Jersey rules contrary to New York on this issue, and that adds to the currently existing split among states.

I will continue to cover the subject of retaliation against attorneys through licensing process for criticizing judicial incompetence and misconduct.

Stay tuned.

Yet another confession by Delaware County - that it persecutes and harasses my friends simply because they are my friends

A future civil rights litigant against the Delaware County filed a Notice of Claim against the county to preserve her state-lawsuit rights - a lawsuit for the common law causes of action for battery, assault, unlawful imprisonment etc. (a civil rights action does not require a Notice of Claim or preliminary depositions).

She was callled to the Municipal Law 50-h deposition, handled by the Frank Miller Law Firm associate.

She arrived pro se, without counsel.

She arrived with a newborn in tow and her mother as a witness. 

It was hot outside.

It was cool inside the building, with air conditioning funded by us, Delaware County taxpayers.

The County's litigation attorney at the 50-h deposition are also funded by us, Delaware County taxpayers.

A 50-h deposition, a deposition that is preliminary to a public court proceeding, is also a public proceeding.

At 50-h depositions, Delaware County allows a lot of its own personnel to be present who are not directly involved in litigation, but come there to be present as witnesses and support group.

That is what the pro se litigant did - brought her mother as a support group.

The associate abused the situation that the litigant was pro se and without an attorney who could protect her rights and rudely asked the mother of the litigant to leave the deposition because it is a private proceeding.

Then, the associate of Frank Miller's Law firm proceeded to ask her questions - for 5 hours.

Several questions, according to the litigant, was - when exactly did I represent her, and was it after suspension of my law license (of course, the associate knew it wasn't because representation was concerning court proceedings in which Delaware County was participating and thus had access, and knew my representation ended a year before my suspension). 

I thought it would be interesting for Delaware County taxpayers to know that Delaware County is spending money on the "valuable time" of their litigation attorneys to ask irrelevant questions, simply to follow the grudges of Delaware County officials.

Even if they know the answer to the question - in the negative.

Eve though the question was irrelevant.

At least it shows how deep the grudge is and how connected actions of the Delaware County against my friends are to me.

The series of questions about me was practically an admission that Delaware County illegally persecutes my friends.

I will publish the transcript of the deposition when it becomes available.

Stay tuned.

My case is so easy, or, a message to an attorney from potential customers - we want you to do your absolute best for us, working as much as needed for the case, but we only want to pay you for "capped hours"

When I practiced law, I tried to stay away from people who claimed that their case is "so easy, it is a slam-dunk to win it".

There were many people who said that when initially calling for a fee quote for an entire case - which I, of course, could not give.

Once you file a case in court, you have an opponent, and you have the presiding court.  You do not have a unilateral control as to how the case will progress.

Nor do people with lack of specialized knowledge about the law know how their case may progress.

And, before getting to know the facts of the case, and sometimes, before doing discovery, or preliminary discovery, which often involves reviewing massive amounts of documents, an attorney cannot in good faith make up his or her mind as to the merits of the case, or the full scope of issues involved in the case.

Moreover, many potential clients withhold important information from an attorney when hiring an attorney, to make the case look like a simple case and in an attempt to make the fee lower.

Which is where I am going with this post.

Yesterday, I've read a blog of the fellow blogger from Pennsylvania who posts a lot of valuable information on her blog regarding the judicial system.

But, I wholeheartedly disagree with the message she has sent in the two blogs posted yesterday, which I will address in my blog due to importance of the message.

The blog Pennsylvania Court Watch advocated in the yesterday's blog for putting a cap on the hours worked by lawyers and, thus, the allowable fee upon attorneys to be charged in any particular case.

The issue raised by the article "Why Hurry When You Are Getting Paid By The Hour?" raises important issues, that per-hour (as opposed to a "per job" or "per capped-hours per-hour service" payment provides an incentive to lawyers to stretch litigation for years, to be paid by the hour.

That may be true - as it is true for any service providers who charge by the hour, such incentive does exist.

If you hire a contractor to work on your house, and you pay by the hour and not by the job, there is a potential that the contractor will "milk the job" and work for longer time than is required to conclude the job.

And, even in the contractor's situation, when a contractor is accused of "milking" the job, the contractor does not entirely control the time limits - there may be intervening circumstances such as the weather, requirements to meet certain regulations, unavailability of materials etc.

In an attorney's situation, issues beyond control of the attorney that may prolong litigation may be, as I mentioned above, and that is not an exhaustive list of issues:

1. opponents actions (counter-claim, discovery, motion practice, requirement of a jury trial);
2. court actions (adjournments, conferences, required mediation etc.);
3. non-disclosure of important issues by the client at the outset of the case that complicate or prolong resolution of the case;
4. issues that get discovered during the discovery process of which neither the client nor the attorney were aware at the time the case started - that is why the process is called "discovery".

Now, a potential client advocates to the court that an attorney the client hired to work for him on a court case must be MADE to charge the client only for a limited number of hours - while leaving intact the attorney's malpractice liability for negligence to the case, and while not lowering expectations to the outcome of the case.

You know what will happen next?

What is ALREADY happening in the State of New York, on appeals for indigent individuals in the Appellate Division 3rd Department - you do not know whether your appellate attorney did or did not work for you on appeal at all, because the appellate attorney's fee is capped at $4,700 per job.

Is it a lot of money?  It appears to be.

And, with an hourly rate of $75.00 that the cap is applied to, the fee covers 62 hours 36 minutes, or 3,756 minutes of an attorney's time.

Appears to be enough to do an appeal.

But, it depends.

I am aware of a case where the trial in Family Court, where the appeal was subject to such a cap, went for 3 weeks, and there were many proceedings before trial - the case was a combined child neglect/ child custody case.

Only the transcript of the three-week trial contained hundreds of pages.

An appellate's attorney due diligence duty is to first READ the record to be able to make a determination as to which appealable issues are present, which are important, which are more important than others.

An attorney who reads the record of an appellate case, should not be requried to turn the reading - and issue spotting - into a speed-reading stampede.

Sometimes it takes a minute to read a page, sometimes it takes an hour or more - because an attorney must deviate from reading, as soon as the attorney spotted the issue, to do research on the issues spotted and preserve it in preliminary notes for the brief.

If that is not done on the spot, a busy attorney - who has other cases - may forget what he or she spotted during reading.  It is not humanly possible to retain in one's short-term memory the contents of transcripts of a three-week-long trial.

Even if an attorney spends, let's say, 2 minutes on reading a page of court documents (that's without research and without taking notes), that covers reading of 1,878 pages of court documents.

So, if there are more pages than that in a court record - and often, there are, I was given a SUITCASE full of records by Delaware County Social Services full of discovery documents 2 days before a child neglect trial once - any reading the attorney does beyond that amount, is not paid.

Not paid - and that is with a $75 per hour rate which, while it is high for many people, as compared to the average hourly rate in the U.S., is lower than private law firms charge for a paralegal's services.  Attorney's fees in upstate New York start at $175/hour, and are a lot higher in large cities - with the rental, payroll burden of personnel going into the fees, and the cost of education and CLEs required by the attorney regulation going into the fee.

So, if an appellate attorney in the New York State Appellate Division 3rd Department is paid for 1,878 pages at the reading rate of 2 minutes per page, the attorney is NOT paid for:

1. reading any records over that page limit;
2. putting together the Record on Appeal - which is a lengthy process taking a lot of time;
3. arranging for stipulation of the Record on Appeal - as required by the court rules;
4. arranging for stipulation of the transcripts - as required by the court rules;
5. taking notes while reading those pages;
6. doing research of the issues;
7. making the necessary amount of drafts of the Appellant's Briefs - and I can tell you, from the position of an attorney who has won many appeals, that drafting appellant's briefs is a gruelling work that sometimes reaquires 8 to 10 drafts to complete.

We are not mentioning that the cap of maximum amount charged or maximum amount of hours worked on a case may also regulate prices in the legal profession - and price-fixing in any industry is not allowed by federal antitrust laws.

Without the price-fixing, the amount of hours worked on a case will still result in more money paid to attorneys who charge a higher fee - and that includes a higher fee for experience and skill.

If the same cap of $4,700 per appellate case is applied to a private attorney, the number of hours that a skilled attorney may work on a given case will shrink to as little as 13 hours.

This way, regulation that consumers bring upon attorneys to pay less, may result in (1) discrimination against skilled attorneys,  (2) a prohibition for skilled attorneys to charge more for their skill, because that will result in less hours they are allowed to work on the case will result in attorneys being paid less, yes, working less, yes - but to the detriment of the same client.

In other words, the requirement that the government, as a regulator, must fix prices of attorneys and the number of hours a given attorney is allowed to work per week will result in attorneys not providing the best quality of work, and neglecting cases - and that is not what a customer would want from them.

Also, there are stages of litigation that are less labor-intensive and more labor-intensive, and the intensity of the attorney's work is dictated by statute of limitations - established by courts, scheduling deadlines - established by courts, and rules of courts - also established by courts.

For example, in New York, discovery and motion practice in a criminal case is jammed within 45 days from arraignment.  If you didn't do that as a defense attorney - you waived your clients' rights.

So, you need to work for as long as needed to obtain, read, review, research on and make the motions based on as much information as you could uncover to help your client - and that's what your client wants from you.

After you filed the motions, there may be a slow period on the case where motions are under the court's review, and slow-pace plea negotiations may be under way - as well as some preliminary trial preparation, but not at a rush-speed.

When a court schedules certain amount of work to be done on the case by a certain deadlines, that requires of an attorney, through attorney disciplinary rules and rules of due diligence (violation of which may result in a malpractice lawsuit) to engage in all reasonable efforts to provide the best of service for the client for that particular portion of litigation.

I do not think that a client would want an attorney to engage in the following thinking exercises:

1) ok, so the court scheduled the deadline to complete discovery in case X at 3 months from now;
2) I am allowed to work on this case Z number of hours per week;
3) my client just delivered me two large boxes of documents for review;
4) I already spent my hours per week on the case reading through 1/10 of documents;
5) I will not cover my own bills if I do not take other cases, parallel to this one;
6) so, I will stop working on this case until the next week, because I have reached my cap of hours this week.

As a result, with a cap of hours imposed upon an attorney to work per week, the client will never know whether the attorney actually read the boxes of documents or not, when the attorney tells him that he/she did not find anything significant in those documents.

And, it will be beyond the point to tell the attorney - but, you know, on page 1,500 in the box 4 I've sent to you, it said - and you overlooked it.

Not only overlooked but, likely, did not even read it - because the capped-hour minimum per week expired before the attorney reached that page by the time he had to complete a certain stage of litigation for which the reading of that page was meaningful.

A requirement to cap off attorney hours or fix prices is a requirement to submit the attorney to slavery - because such a requirement does not take into account the cost of doing business as an attorney.

If attorneys are not able to break even - with the cost of education, maintaining a law license, a malpractice insurance, costly CLE requirements, cost of legal research, the overhead of the office including rental and the cost of auxiliary personnel - there will be no services provided at all.

If the regulation is making clients not be able to afford an attorney, the answer to the situation is not MORE regulation, but LESS regulation.

If the market of legal services is deregulated, and the cost of law education is not inflated any more by the regulation requirements, and the cost of maintaining a license is eliminated, and people have more choice as to who would represent them in court and at what price, then the issue raised in the article about dragging on with litigation will not be an issue any more.

But, stripping an attorney from the ability to set a price for his own services, making an attorney to work many hours on a case for free in order not to commit malpractice is not going to help consumers.

Because slave labor was never diligent or efficient - which is shown by results of indicgent appeals in the 3rd Department worked on by attorneys whose services are capped at $4,700 per case, at an hourly rate of $75/hour, no matter how big the record is.

The appellant will never know whether the attorney actually read the portions of a lengthy record - because the attorney was not paid for it.

And, a litigant in a trial court will never know whether the attorney did his or her absolute best for the client - because the attorney's hourly rate and hours were capped off, so, where the case required diligent work for longer hours than were provided by the cap, those longer hours were simply not provided by the attorney, and rightfully so.

Because in this country slave labor is a XIIIth Amendment violation, and the government taking people's property without due process of law - including by capping the fees they can charge for their services to break even as to the costs of doing business and earn a living - is a due process violation.

One cannot expect to have access to justice provided through enslaving the providers of such access.  That would not be justice, would it?

Fabrications of transcripts or failure to record in the recent reported court cases

I have put together a summary table of cases I have so far covered where either court transcripts were fabricated to hide mistakes or misconduct of trial courts, or where such transcripts were deliberately not made.

The cases reported were from New York, Louisiana and Georgia, and the table was made in reliance upon court documents that I either personally have or had in my possession or court documents reported on the Internet.

	Year	Name of Court	State	Name of reporter, if any	Name of Judge	Description of fabrication
1.	Approx. 2013	Delaware County Family Court	New York	Will post upon verification with the transcript, I report contents from personal knowledge of what happened in the proceedings and from memory of contents of the transcript	Carl F. Becker	Failure to reflect in the transcript the presence of children at a court hearing where Judge Becker demeaned and belittled a female child, claiming that she is not “college material”; refusal of the court to have the stenographer correct the mistake of transcript regarding appearances, settlement of transcript by law was by the same Judge Becker whose misconduct was being covered up
2.	2014 – hearing; 2015 – fabricated transcript of hearing from audio file	Delaware County Family Court	New York	Will include the name of stenographer upon verification with the source	Rita Connerton	Judge Connerton held an ex parte hearing where she discussed my motion, and then lied to me in a letter that she did not discuss my motion at that hearing.  The transcript of the hearing where Judge Connerton is shown to discuss my motion, contrary to her lies in her letter that she didn’t, included me as appearing at the hearing, even though that was directly contradicted by contents of the transcript and by Judge Connerton own statement in an earlier letter confirming that I was not present at the hearing.
	2011	Sidney Village Court	New York	The failure was by the judge	Steven T. Rose	Failure to record picking of the jury and conferences
	2011	Bloomville Town Court	New York	The failure was by the judge	Yvonne Pagillo	Failure to record picking of the jury
	2014	Walton Village Court	New York	The failure to record was by the judge	Richard Gumo	Failure to record court conferences, public reprimand
	2014	Delhi Town Court	New York	The failure to record was by the judge	Richard Gumo	After public reprimand for failure to record court conferences, and after a pledge to the NYS Judicial Conduct Commission to record conferences – another failure to record a court conference in a politically charged case People v O’Sullivan which was later dismissed because of an arrest warrant fabricated by Judge Gumo’s court clerk and Judge Gumo’s lying under oath
	2014	Delhi Town Court	New York	The failure to record was by the judge	Richard Gumo	Failure to record arraignment in a politically charged case People v Alecia Bracci which resulted in an acquittal, refusal to provide transcripts of the trial
	2014	Appellate Division 4th Judicial Department		Kenneth H. Crewell, Jr. who has also been employed since the time of the fabrication as court reporter in U.S. District Court for the Northern District of New York in a racketering and corruption case	Referee Steven Sirkin, fabricated transcript accepted, despite an audio of the conference confirming fabrication. The fabrication was accepted by the 4th Department court	Transcript falsely claimed that: 1)     A conference was an evidentiary hearing held on notice – it was not a hearing, no notice of a hearing was ever given, and no such stipulation was ever made; 2)     That I made stipulations at the hearing; 3)     That signing of the transcript by any witnesses is waived –I agreed to no such thing; 4)     That I testified as a witness.
	2015	Appellate Division 4th Judicial Department	New York	Debra Garrison, see also the comment on my blog that Debra Garrison allegedly missed out a paragraph in another court proceedings and refused to provide audio file to verify veracity of her reporting	Referee Steven Sirkin, fabricated transcript accepted, despite an audio of the conference confirming fabrication. The fabrication was accepted by the 4th Department court	Transcript falsely claimed that: 1)     A conference was an evidentiary hearing; 2)     That I made stipulations at the hearing; 3)     That I was sworn as a witness; 4)     That I testified as a witness.
	2016	U.S. District Court for the Northern District of New York	Federal court	Transcript sealed, identity of reporter unknown	Judge Lawrence Kahn, David Peebles, former magistrate whose term expired at the time of fabrication	Held a motion hearing regarding me without notice to me and sealed the transcript of the hearing so that I or any other member of the public would not be able to access the transcript
	2015-16	U.S. District Court for the Northern District of New York	Federal court	N/a	Chief Judge Gary L. Sharpe	Hidden the entire record of disciplinary proceeding, including a court order, a motion to vacate, recuse and disqualify and the decision on that motion, with no hearing
		Delaware County Supreme Court	New York	N/a	Judge Robert C.  Mulvey, see online ratings for this judge here	Failed to provide a stenographer to take record of a conference, misrepresented in a court decision what happened at the conference: claimed I waived service of a motion when I did not, and brought my client as a witness to witness that; Judge Mulvey was promoted to Appellate Division 3rd Department despite my report of his misconduct to the NYS Judicial Conduct Committee
3.	2009	19th Judicial District Court, Lafayette	Louisiana	Kathleen D. Mathews who continues to work as an official court reporter in the Lafayette Parish Clerk of Court for the 15th Judicial District in the State of Louisiana	Phyllis Keaty	Transcript did not reflect that disclosures of the judge regarding her irreconcilable conflicts of interest were added into the audio file by an outside expert who “spliced” the court audio file without disclosure of that to litigants; the fact of splicing was proven by testimony and evidence at trial, the attorney who brought up the problem was suspended despite being right, the judge was promoted from trial court to appellate court, see also commentary about the case
4.	2016	Appalachian Circuit Court	Georgia	Rhonda Stubblefield	Roger Bradley (resigned)/Brenda Weaver	The transcript did not reflect the judge using racial slur against a participant in criminal proceedings; the journalist and his attorney who sought access to the audio file to verify contents of the transcript were sued by the stenographer, whose legal fees were paid by chief judge of the court out of court account, arrested, charged with a felony and thrown in jail by the judge’s former law clerk – turned prosecutor; were released only after a public outrage in the media

The above evidence shows that failure to create a proper and reliable court record is a pervasive problem in state courts throughout the United States, and that measures should be undertaken to have court records created not by court stenographers, by digitally, and to prevent tampering with such digital records, as well as punishment against those who seek verification of authenticity of such records.