One of the most dramatic examples of parties charting their own procedural course in court took place on June 15, 1995, when F. Lee Bailey goaded prosecutor Christopher Darden into asking O.J. Simpson (who was not testifying) to put on the leather glove that was found at the scene of the crime during the trial. It was, to say the least, extraordinarily unusual, but the attorneys from both sides believed that it would be advantageous to their case and the procedure was approved of by the judge. So who could complain when the stipulated stratagem, which gave birth to Johnny Cochran’s iconic phrase, “If it doesn’t fit, you must acquit,” delivered a savage blow to the prosecution’s case?

In New York litigation practice it has been long understood that, unless against public policy, parties to a civil dispute are free to chart their own litigation course, and they may agree on a way which a controversy will be resolved. Parties have been permitted to stipulate away statutory, and even constitutional rights. Mitchell v. New York Hosp., 61 N.Y.2d 208 (1984).

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