Template to use when arguing before appellate judges on appeal charging a lower court judge with wrongdoing that caused injury in fact

Template

that Advocates of Honest Judiciaries can use

to argue the equivalent law in their respective jurisdiction,

rather than their emotions or notions of “ what’s not right ”,

when appearing before appellate judges on an appeal

charging a judge below with wrongdoing

that has caused a party injury in fact

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http://Judicial-Discipline-Reform.org/OL/DrRCordero-Honest_Jud_Advocates.pdf >ol: 244; 240.

This article may be published and distributed, provided it is

in its entirety and without any addition, deletion, or modification,

and credit is given to its author, Dr. Richard Cordero, Esq.

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By

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Dr. Richard Cordero, Esq.

Ph.D., University of Cambridge, England

M.B.A., University of Michigan Business School

D.E.A., La Sorbonne, Paris

Judicial Discipline Reform

New York City

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Dr.Richard.Cordero.Esq@cantab.net , CorderoRic@yahoo.com , Dr.Richard.Cordero.Esq@outlook.com, RicCordero@verizon.net

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www.linkedin.com/pub/dr-richard-cordero-esq/4b/8ba/50/

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Outline for Oral Argument

held by Dr. Richard Cordero, Esq.

before the Appellate Division, Second Judicial Department,

of the New York State Supreme Court [a trial court]

http://Judicial-Discipline-Reform.org/OL/DrRCordero-Honest_Jud_Advocates.pdf > ol:244

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1. Introduction for pro ses intent on orally arguing their case rather than chanting its requiem

When you argue before an appellate panel of judges –normally three or five-, you are expected to argue reversible errors made by the judge below. Those errors are in principle errors of law. But even when you argue that a fact was treated in error by the judge, e.g., was give too much or too little weight, whether in the admission of evidence or in the instructions to the jury, the same principle applies:

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On appeal, you are expected to cite other cases, rules, or laws that support your argument for affirmance or, what is more frequent, reversal of the decision appealed from . You cannot appeal a decision just because you do not like it. An appeal is not merely an opportunity for a party to tell a panel his or her side of the story. It is certainly ill-advised to alienate the panel with a rambling, teary account brimming with all sorts of irrelevant facts. If you do not want to be dismissed by the panel as yet another pro se who has no clue what he or she is doing, clearly identify the reversible error and then move on to provide the legal basis for assigning it as such.

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Assuming that you are arguing for reversing the decision below, limit yourself to the two or three errors that you can show to be such with the strongest legal arguments. Only the judge’s reversible errors matter to the panel. There is an obvious reason for that: Not every error is reversible. If it is not, it does not provide ground for reversing the decision of the judge below.

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Never take a ‘shotgun approach’ by citing every minute error. If you cite non-reversible errors, everything that you feel in your layman’s gut ‘wasn’t right’, never mind something done by somebody other than the judge, you only dilute the panel’s attention. When you rant or vent your anger about an incident for which you have no legal basis to argue that it is a reversible error, you only give the panel an excuse to brand your forehead with a lethal label: Pro Se. That turns your oral ‘argument’ into the inept storytelling of a legal death foretold: that of your appeal.

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As it is, when you file in a federal court and check the “pro se” box of the case information form, it is as if you were marking it DOA: Dead on Arrival. In the Federal Judiciary, pro se cases are weighed as a third of a case while a capital punishment case is weighed as ten cases( * >jur:43¶81 ). In a capital case, there is already a corpse and a living person on his or her way to becoming one. It is because of the type of case and, thus, what is at stake, that it is so weighed.

* http://Judicial-Discipline-Reform.org/OL/DrRCordero-Honest_Jud_Advocates.pdf

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A pro se case is given a 30 times lighter weight than a capital case regardless of its nature and the stakes, and no matter whether the brief was written by joe schmock or actually by an anonymous lawyer. It is so weighed because you checked the “pro se” box.

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Consequently, when judges see that a brief was written by a pro se, they give it the perfunctory attention that the official weighing of the case authorizes them to give it. It is a self-fulfilling weighing. Likewise, if at oral argument you start telling the sob story of your case, the judges will shut their ears and close their minds. You are talking to yourself while irritating the judges just as the shrill alarm of a fire drill does.

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Therefore, if you are going to appear pro se, do your homework to learn what you have to do to perform like a lawyer. Lawyers went to graduate, law school for three years after the four years of college. Reasonably assume that they learned something that judges expect to see in their briefs and when they appear at oral argument.

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Do not wing it! The casual writing on the back of a napkin is not the shorter version of a brief. Do not improvise yourself as a lawyer before judges. First, compose your brief by doing thorough legal research and writing, and rewriting, and revising, and reviewing, and checking and double-checking its content, grammar, and format. Practice your oral argument alone and before other people; otherwise, hire a lawyer or do not bother to file your brief or appear to orally argue it. Instead, use your effort, time, and money to give your case a decent burial in a Kleenex box and light candles for your way ahead without it. It was Dead on Arrival.

T o keep your appeal alive at oral argument, study the template below and adapt it to your case.

1. Template for the outline to use at oral argument

1. The judge below committed reversible error by:

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1. dismissing the motion in question without reading it, whereby he denied Plaintiff-Appellant (P) his due process right under the New York State and U.S. constitutions to be ‘heard’ through his writing; and

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1. pretending that the motion could only be served on Defendants (Ds) under one procedural provision although there are 14 available to do so, whereby he denied P equal protection of the law under those constitutions.

 

1. Civil Practice Law and Rules [CPLR, similar to the Federal Rules of Civil Procedure, which is the model for many state civil practice codes, even as to their rule numbering] §105(d): “ A “civil judicial proceeding” is a prosecution…of an independent application to a court for relief . ” P is applying in this court for relief from a grievance against conduct that the judge below adopted on his own given that Ds neither answered nor appeared, thus defaulting

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2. Summons and complaint( A:41,45 ) [ blue text references are to the record on appeal] mailed under CPLR §312-a, received 4oct12.

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3. Letter( A:60-64 ) of 31oct12 of Ds’ attorney to P acknowledged receipt and discussed claims:

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1. The key factor in service is whether the notice was ” reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections “, Court of Appeals (highest court in New York) in Ruffin v. Lion Corp. ( A-9 )

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1. CPLR §306(e): “ A writing admitting service by the person to be served is adequate proof of service ”; § 312-a(b) attorney can acknowledge receipt; Morrissey v. Sostar : “ The fact of service conferred jurisdiction. Once proper service was made, any deficiency in the affidavit did not take away jurisdiction which was obtained . ”( A:10 )

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4. Ds failed to answer P’s complaint and subsequentmotion for default and declaratory judgment( A:3 ) or appear to contest under CPLR 320 the summons issued by court to them.

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5. P paid the filing fee and acquired a contractual right to have the court enforce the notice appearing on its summons: “ Should you [D] fail to answer, a judgment will be entered against you by default for the relief demanded in the complaint ”( A:41 ).

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6. No appearance at the 11mar13 hearing of the motion for default and declaratory judgment

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7. P was entitled to default judgment under CPLR 3215(a) Default. When a defendant has failed to appear [or] plead, the plaintiff may seek a default judgment against him.

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1. Judge denied P due process and equal protection of the law when he:

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8. refused to hear P at hearing: “ I don’t want to hear about it! You have to file an affidavit under 308”( A:269 )

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a . Rules of the Chief Administrative Judge, Part 131 , Audio-visual Coverage of Judicial Proceedings, §131.1(a) “ These rules are promulgated to comport with the legislative finding that an enhanced public understanding of the judicial system is important in maintaining a high level of public confidence in the Judiciary ”.

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1) One cannot understand the irrationality of a judge holding a hearing who does not want to hear the parties or of a court allowing that to happen without holding the judge liable for showing contempt of process .

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100. Part 100 Judicial Conduct (JC) 100.3(B)(6): “ A judge shall [not ‘may’, a duty, not a matter of discretion] accord to every person who has a legal interest in a proceeding…the right to be heard according to law ”

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9. denied P the benefit of CPLR §312-a by prejudging 308 as the only applicable rule

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a . ignored CPLR §312-a: “ As an alternative to the methods of personal service authorized by section…308 ”

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b . disregarded CPLR §102: to apply the rules so that they are “ not inconsistent with the constitution, [or] act of the legislature. No rule …shall abridge or enlarge the substantive rights of any party ”

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c . disregarded his duty under CPLR §104 to “ apply the rules liberally ” by limiting service to only one of the 14 CPLR service provisions

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1. disregarded CPLR §103: to give substance priority over form by ‘ not dismissing a proceeding not brought in the proper form, rather “the court shall make whatever order is required for its proper prosecution ”

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1. disregarded priority to be given under CPLR §2001 to parties’ rights rather than their deficiencies in procedural compliance or their papers: “ At any stage of an action, including the filing of a summons…the court may permit a mistake, omission, defect or irregularity…to be corrected, upon such terms as may be just, or, if a substantial right of a party is not prejudiced [it] shall be disregarded .” E.g.:

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1) CPLR §5520(c) Defects in form: Where a notice of appeal is premature or contains an inaccurate description of the judgment or order appealed from, the appellate court, in its discretion, when the interests of justice so demand, may treat such a notice as valid.

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1. closed his mind to contrary views, revealing a temperament unfit for judicial office

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10. denied( A:1a.iii ) without reading the motion for default and declaratory judgment
11. said “ I will take a look at it ”( A:269 ), either misleading P if he had no intention to take any look at it or failing to keep his word

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b . claimed without stating any reason that he was denying the motion due to P’s “ failure to submit proof of service in accordance with CPLR ”

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1) failed to notice P’s Affidavit of Service( A:6 ) and its listing as the first item of the motion’s Table of Contents( A:3 )

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2) disregarded CPLR §2101(f): “ A defect in the form of a paper, if a substantial right of a party is not prejudiced [ Ds were served , A¶2 ], shall be disregarded by the court, and leave to correct shall be freely given ”

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3) disregarded CPLR §3026, which concerns the substance of: “ Pleadings [, which] shall be liberally construed. Defects shall be ignored if a substantial right of a party is not prejudiced ”

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1. irresponsible and unprofessional for the judge to deny a motion without reading it in an unjustified rush to take it off his workload

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1) did not give himself the material time necessary to read it( A:269 ) when scribbling his denial on a form while still on the bench and having it mailed to P the same day of the hearing

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1. denial of P’s constitutional due process right to opportunity to be heard in defense of his view on service under CPLR §312-a rather than 308

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11. disregarded P’s CPLR §105(d) “application for relief ” in the declaratory judgment branch of the motion for default and declaratory judgment( A:3 )

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a . did not even mention it in his denial, though that branch was in the motion’s title( A:1c ) and the Relief Requested( A:32 )

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b . disregarded CPLR §3001: “ If the court declines to render such a declaratory judgment it shall state its grounds ”

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1. breached the contract for judicial adjudicative services in exchange for which P had paid court fees as consideration for forming a contract for adjudicative services

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1) the Administrative Judge for Civil Matters of the Supreme Court, Kings County, states in the opening statement of the Court’s official website, http://www.courts.state.ny.us/courts/2jd/kings/Civil/index.shtml : “ It is our intention to provide quality service to attorneys and all litigants, whether or not you are represented by counsel ”.

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12. discriminated against P for being pro se

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a . but had heard at length two couple of parties on hearing morning

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b . disregarded JC 100.3(B)(4) to “ not, by words or conduct, manifest bias or prejudice ” when he asked P whether he was pro se( A:269 )

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1. disregarded the Standards of Civility, Judges’ Duties To Parties: “ 1. A judge should be patient, courteous and civil to lawyers, parties and witnesses ”, putting an end to the hearing in less than two minutes

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13. denied benefit of diligence duty, taking 5 months to deny reargue motion

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1. disregarded duty under CPLR §104 “ to secure the just, speedy and inexpensive determination of every civil judicial proceeding ”

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100. disregarded JC 100.3(A): “ judicial duties of a judge take precedence over all the judge’s other activities ”; and 100.3(B)(7): “ A judge shall dispose of all judicial matters promptly, efficiently and fairly . ”

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14. denied( A:1b.iii ) reargue motion( A:121,124 ) without allowing P oral argument

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1. in 5 months did not find 10 minutes to talk to P

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b . pattern of not hearing party to evade challenge to his preconceptions

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15. disposed of P’s motion to reargue with:

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1. reasonless, conclusory, lazy statement: It “ is without merit ”( A:1b.iv )

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1. quoted Ds’ attorney, “ Nobody considers himself or herself served ”

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1) being served is not D’s subjective state of mind, but the legal consequence of objective act of delivering summons according to any service provision of CPLR, including §312-a, used by P

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2) disregarded his JC 100.3(B)(1) duty to “ be faithful to the law and maintain professional competence in it ”

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3) showed gross incompetence because he ignored the law

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4) was too arrogant to admit that he had made a mistake

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16. knew he could treat P’s motions perfunctorily because it means nothing in practical terms if this court merely reverses him, given that ‘due to their relationship’ (next) it will not hold him accountable and liable to anybody

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100. Court’s duty under JC 100.1 “ to uphold the integrity of the judiciary and its independence…from undue influence of relationships ” to their peers, and, 100.3(B)(1), “ shall not be swayed by…fear of criticism ” of them, but, 100.3, “ shall perform the duties of judicial office impartially and diligently ”, not being partial to their views, but open to those of others

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17. The law lacks the power to bend judges’ minds to its rules or guide them to justice.

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18. Judges are bent on going to Court of Appeals or Federal Judiciary and guided by the fearsome cry of mutually interdependent survival: ‘If you bring me down, I’ll take you with me! ’

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19. Newsday’s investigation of judges in Suffolk richly rewarding supporters, by Editor D. Henley and Reporters S. Peddie and Will Van Sant; 4oct14; http://data.newsday.com/projects/long-island/melius-receivership/ ; audited thousands of judicial documents; Chief Administrative Judge opened an investigation

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20. Court should hold judge liable to P for injury in fact, e.g., prolonged penury due to D’ breach of contract, fees, caused him since 11mar13

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1. apply to him: ‘ a person intends the reasonable consequences of his acts ’

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1. just as Newsday did, Court should audit judge’s decisions( A:309 ; 314¶122g3 ) to determine pattern of disregard of judicial and contractual duties by being irresponsible, incompetent, and unprofessional

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100. hold public hearings to hear parties, lawyers, clerks, and judges on whether judge has failed “ to avoid even the appearance of impropriety ”, JC 100.2

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1. do audit/hearings and make history just as Supreme Court ordered bussing in Brown v. Board of Education in 1954 because ‘ separate education is an inherent violation of the Equal Protection clause ’

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1. if it cannot grant this relief, certify this question to Court of Appeals:

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1) Is it a denial of due process and a violation of the equal protection of the law to maintain the separation between, on the one hand, Judges Above the Law, who are immune from liability to those whom they harm by violating the law and their contract for judicial services, and on the other hand, the people, who are held liable to compensate those whom they harm?

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1. Relief should be granted: “ no substantial right of Ds was prejudiced ”, CPLR §3026; P’s right to default Ds under §and to “ a speedy and inexpensive determination ”, §104, denied; and injury in fact

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21. grant the relief requested( A:314§H ), including, but not limited to this:

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1. reverse the two orders( A:1a.iii ; A:1b.iii ) and remand to a different judge

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1. grant the declaratory judgment branch of the motion for default and declaratory judgment( A:314¶122f ), including, among other things:

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1) P is a citizen of NY and is entitled to the protection of its courts and the benefit of its laws; so the case will not be removed to Ds’ jurisdiction and their influence on it( A:14§§D,E )

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2) under CPLR 306-b “ the court, upon good cause shown or in the interest of justice, [will] extend the time for service ” ( A:32¶g ) if need be

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22. refund all court fees below beginning with that of reargue motion( A:315¶h ) and hold Ds and judge jointly and severally liable to pay P attorneys’ fees –pro se is “ attorney ”, CPLR §105(c)– and the expenses incurred during years of litigation since 11mar13

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23. reverse the denial of P’s motion for a waiver of the filing fee in this court and refund the fee because its payment was occasioned by the failure of a Judiciary’s agent, i.e., the judge below, and the Judiciary itself to perform or supervise him properly, so that to charge that fee amounts to profiting from their own failure to deliver the contracted-for services.

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On the out-of-court strategy

for judicial wrongdoing exposure and reform

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This article is at:

http://Judicial-Discipline-Reform.org/OL/DrRCordero-Honest_Jud_Advocates.pdf >ol:236.

 

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1. As in the above case, a lawsuit involving two parties may generate an appeal that tries to hold the lower court judge liable to either or both parties for his or her wrongdoing. That appeal may need to be kept procedurally alive in court by taking all the steps and meeting all the deadlines for its proper and timely prosecution even if one is fully aware that there is no realistic expectation that judges will hold one of their own liable( ol:158 ).

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2. Hence the proposed out-of-court strategy for exposing the riskless wrongdoing of unaccountable judges and advocating judicial reform( ol:236 ).

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3. The strategy centers on causing media members, such as investigative journalists and talkshow hosts, to pursue in their own personal and professional interest the two unique national stories of President Obama-U.S. Supreme Court Justice Sotomayor and Federal Judiciary-NSA.

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4. The information about judges’ wrongdoing thus provided will so outrage that national public as to stir it up to force politicians campaigning in the primaries and the presidential election to take a stand on the issue of judicial wrongdoing, open official investigations, and hold nationally televised hearings thereon.

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5. Thanks to their subpoena, search & seizure, contempt, and penal powers, the official investigators, e.g., Congress, the U.S. Department of Justice, its FBI, and their state counterparts, will expose even more outrageous information. That will turn the issue of judges’ wrongdoing into a decisive one of the nominating conventions and the presidential election campaign.

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6. This will cause the national public to demand that politicians undertake judicial reform to prevent, detect, and punish similar outrageous conduct of judges in connivance with the politicians who recommend, nominate, and confirm them.

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7. The out-of-court strategy for judicial wrongdoing exposure and reform is part of Dr. Cordero’s study of the Federal Judiciary and its judges, the models for their state counterparts, titled:

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Exposing Judges’ Unaccountability and Consequent Riskless Wrongdoing:

Pioneering the news and publishing field of judicial unaccountability reporting

* http://Judicial-Discipline-Reform.org/OL/DrRCordero-Honest_Jud_Advocates.pdf

or

http://1drv.ms/1IkvhB8

or

https://onedrive.live.com/redir?resid=8E3D78595FC3EBB8!156&authkey=!AMV7fOyVzLPJU6g&ithint=file%2cpdf

or

https://www.dropbox.com/s/rqw00v30ex3kbho/DrRCordero-Honest_Jud_Advocates.pdf

or

https://drive.google.com/file/d/0Bx26luEuzfjgc1hiZXctZjdLQlE/edit?usp=sharing

or

http://Judicial-Discipline-Reform.org/jur/DrRCordero_jud_unaccountability_reporting.pdf

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If these links do not download the file in Internet Explorer, download either of the following browsers, install it, copy the first link above into the browser search box, and hit ‘Enter’. If the file, which is close to 50MB, does not download, try using the other links:

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Google Chrome :

https://www.google.com/chrome/

or

Mozilla-Firefox :

https://support.mozilla.org/en-US/products/firefox/download-and-install.

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Dare trigger history! ( jur:7§5 )…and you may enter it.

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Dr. Richard Cordero, Esq.

Judicial Discipline Reform

New York City

RicCordero@verizon.net, Dr.Richard.Cordero.Esq@cantab.net , Dr.Richard.Cordero.Esq@outlook.com , Corderoric@yahoo.com

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www.linkedin.com/pub/dr-richard-cordero-esq/4b/8ba/50/

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NOTE: Given the interference with Dr. Cordero’s email and e-cloud storage accounts described at * > ggl:1 et seq. , when emailing him, copy the above bloc of his email accounts and paste it in the To: line of your email so as to enhance the chances of your email reaching him at least at one of those addresses.

* http://Judicial-Discipline-Reform.org/OL/DrRCordero-Honest_Jud_Advocates.pdf

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Watch the interview with Dr. Richard Cordero, Esq., by Alfred Lambremont Webre, JD, MEd, on the issue of exposing judges’ wrongdoing and bringing about judicial reform, at:

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http://www.dailymotion.com/video/x2362oh_dr-cordero-u-s-judiciary-goes-rogue-99-82-complaints-vs-judges-are-dismissed-u-s-justice-sonia-sotom_news

or

Dr. Cordero: U.S. Judiciary goes Rogue – 99.82% complaints vs. Judges are dismissed; U.S. Justice Sonia Sotomayor hides assets with impunity.

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