Outside Counsel

We are blessed, those of us who practice in the Empire State, with a court system that is so complicated that there are courts where I will never appear. Sometimes specialization is a useful thing, I suppose: Housing Court, for example, makes sense to me if for no other reason than the sheer volume of cases; Family Court likewise. We have Criminal Courts in New York City, and County Courts elsewhere-- and City Courts-- which mostly deal with misdemeanor offenses. Criminal Procedure is a constitutional specialty, and it makes sense for those matters to be handled on a specialty basis. Another specialty court that I have never understood, though, is Surrogate's Court-- where probate matters are handled. It is not entirely accurate to say that I have never had to deal with Surrogate's Court, because I have had to have wrongful death compromises approved there, and we presently have an infant's trust that the local Surrogate's Court has jurisdiction over, but it is an alien place to me. I feel like Surrogate's has an ammonia atmosphere. For some reason it has its own procedural code, the Surrogate's Court Procedure Act, and this has always been very mysterious to me. In the inevitable way of these things the SCPA is not entirely in line with the current thinking on a number of issues, and there are, from time to time attempts to fix it up. Someone has just noticed, for example, that in certain types of proceedings there is no statutory mechanism to compel the production of documents in advance of an examination under oath. The proposed remedy is to amend the statute by making reference to the Civil Practice Law and Rules. On the one hand, this makes a certain amount of sense: the CPLR is a lovely gothic cathedral of a civil code which really does try to be current with the realities of 21st Century litigation. That said, it seems cumbersome to approach Surrogate's practice this way. If the SCPA is out of line with the CPLR, putting a CPLR patch on the statute is a halfway measure-- why not simply adopt the CPLR? Are the time frames contemplated by the two statutes so different? Are there issues in Surrogate's practice which are unique to probate practice and not covered by New York's (pretty comprehensive) civil practice statute?

It seems to me that a fair criticism of New York practice is that it is a good deal more complicated than absolutely necessary. This impresses me as a good example (as does the existence of Surrogate's Court in general, actually-- why can't Supreme Court do the same job? It can't just be because Surrogate's is such a convenient place to put the patronage, can it?)