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Judge Joan Shkane: Legal Myths and Reality

By Judge Joan Shkane

This is a continuing discussion of Legal Myths and Reality because an informed citizen is always the most successful citizen:

MYTH: When an Appeals Court reviews a trial and finds an error, that court is limited in its options.

REALITY: A New York State Appeals Court can totally throw out a decision after trial or save parts of the decision.  It can also send the whole case back to be redone by another judge and/or jury.  When the whole case is sent back for retrial, the party who won the first trial may want to save part of that trial.  The party who lost probably wants to start with a clean slate.  If the appellate court sends the whole case back, the second trial must start all over, as if there had never been the first trial.  New evidence by new witnesses and other proof can be put to the jury, and new defenses can be raised.  If only a portion of the case is sent back, then only that part will be retried.

MYTH: New state judges go from being a lawyer directly to being a judge.

REALITY:  This would be almost impossible to do! Each year about 100 new state judges travel to the Judicial Institute in White Plains, NY for about one week to learn how to be a judge.  This school has been functioning for about 100 years and has trained about 1250 judges in this state.  2400 town and village justices have had separate training in Albany, NY.   Of course, for each new judge his/her experience as a lawyer goes with him/her and is of vital importance.  That’s why the public’s wisdom generally chooses a lawyer with many years of varied experience and maturity to be a new judge, although this does not always happen.  The law requires only that a candidate for judge be licensed as a lawyer for ten years.  It does not require wide and varied experience.  At judge school, experts teach specific subjects, such as criminal law, matrimonial, and custody issues.  Experienced judges teach topics such as judicial ethics, courtroom conduct, and decision writing.  They warn against “black robe disease” described as a judge having delusions of superiority.  They remind judges that with a black robe does not come a crown, and that bad behavior such as arrogance is more subject to criticism than bad decisions.  They also encourage a judge to find healthy outlets for stress, such as exercise or family activities.  They remind judges that they may not accept gifts or be seen as being overfriendly with lawyers in their courts. All of these lessons are designed to make competent judges out of former lawyers

MYTH: If you are the victim of child sexual abuse, you can sue the perpetrator.

REALITY:  If you have delayed in bringing a lawsuit for any reason, you are currently unable to do so if you have reached age 23 years.  Those abused in a public setting like a school have just ninety days from the incident to file a required form called a “notice of intent to sue”. If you do not file this form, you may not be able to sue.  This form is not required in a private setting.  The Manhattan District Attorney Cy Vance, Jr. is joining others in demanding that the law is changed.  The Assembly passed a bill in 2008 and again in 2017.  This bill would permit survivors to bring lawsuits up to their 50th birthday and felony criminal cases up to their 28th birthday.  The bill also included a one-year window to revive old cases, and public and private institutions would be treated the same.  Some groups oppose the provision that could revive old cases.  The state Catholic Conference supports doing away with the criminal statute of limitations, treating public and private institutions the same, and lengthening the civil statute of limitations.  The Assembly bill has twice died in the state Senate.

Giving attention to legal myths is not wrong.  It can be a starting point for developing an interest in the law.  However, if legal issues are important in your life, for instance regarding custody of your children or money paid for any reason, it is wise to consult a lawyer who can advise you on the truth of legal myths.  This discussion is not intended to render legal advice on specific cases or to express an opinion on any specific case.


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