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For the lucky few who get them, judicial clerkships provide invaluable inside knowledge about the courts and the promise of lucrative job offers by firms willing to pay for them. But to what extent do clerks bring to the firm that hires them an imputed disqualification? The question is before the state Supreme Court in Camparato v. Schait, A-43-03, a case of divorcing spouses fighting over – among other things – who should represent them. The theory of conflict goes like this: A clerk for the trial judge in the case was hired by the wife’s law firm. When the partner handling the case left the firm to start a new one, the clerk went with him and at that point became involved in the case. Even though the judge then recused himself, the tinge of conflict remained, the husband’s lawyer argues. “Something is truly wrong with this picture,” Patricia Barbarito told the Court last Tuesday during oral argument. She said that Superior Court Judge Thomas Zampino was making critical decisions at the time the wife’s firm was considering hiring the clerk, Priscilla Miller. Miller had “substantial involvement” with the case while clerking for the judge from September 1999 to August 2000, when she joined the wife’s law firm, noted Barbarito, of Denville’s Einhorn, Harris, Ascher, Barbarito, Frost & Ironson. At that point, a few of the justices were quizzical about why a conflict arose. “Define ‘substantial involvement,’”posited Chief Justice Deborah Poritz. “The very virtue of what a clerk does,” namely, writing memos and researching case law, said Barbarito. “But the judge always makes the ultimate decision,” Justice Barry Albin noted. When his turn came, the wife’s lawyer, Neil Braun, said Miller’s involvement with the case during her clerkship was minimal. “She had no specific recollection of having any contact with the file. Her involvement was just routine,” said Braun, who left Morristown’s Donahue, Braun, Hagan, Klein & Newsome in 2002 to form Gomperts & Braun in Springfield. Braun insisted that there is no bright-line rule that precludes former clerks from dealing with cases that may have been handled by their judges after they join a firm after completing a clerkship. A LAD Lemon Law? – The issue in Tarr v. Bob Ciasulli’s Mack Auto Mall, A-24-03, is whether a company’s owner can be held personally liable for damages in a suit for sexual harassment. Plaintiff Carol Tarr quit her job at an Ocean County car dealership after being subjected to sexually offensive remarks. She sued the company and Bob Ciasulli, its owner. The jury awarded Tarr no damages, but the Appellate Division said a new jury trial was warranted to determine the owner’s personal liability. “The Appellate Division opinion is wrong in so many ways,” said Ciasulli’s lawyer, Resa Drasin, an associate at Westfield’s Woehling & Freeman. “This expands the Law Against Discrimination beyond what the Legislature intended,” since “there was no aiding and abetting” by Ciasulli. Drasin said it would create a dangerous precedent to allow company owners to be held individually liable in LAD cases, especially if they had no direct control over the complaining employee. Owners, she said, should be shielded if they have authored or approved of policies prohibiting sexual harassment in the workplace. The justices asked few questions of Drasin, seeming content to let her make her legal arguments and move on. Tarr’s lawyer, Spring Lake solo practitioner Ronald Lueddeke, said Ciasulli should be held liable because he had no effective anti-harassment policy in place. “He created many policies for the selling of cars but not for preventing sexual harassment,” he told the Court. Zazzali said there was no proof in the record that Ciasulli knew Tarr was being harassed and did nothing to stop it. Lueddeke responded that Ciasulli was notified about Tarr’s complaints and had an affirmative obligation to address the situation before she decided to quit. “He did nothing to stop it,” he said. Shush! He’s Broke – Should a jury in an automobile injury case know that there are no deep pockets? In Brodsky v. Grinnell Haulers Inc., A-46-03, the Court will have to determine whether jurors should have been told that a driver involved in a fatal accident had filed for bankruptcy prior to suit and had no assets. On Feb. 16, 1998, Bernard Brodsky swerved to avoid a tractor-trailer on Route 80 and came to rest on the shoulder, where he was struck and killed by another car. After trial, the jury awarded total damages of $1.64 million, finding the truck driver and his company 60 percent liable and the other car’s driver 40 percent liable. What the jury didn’t know was that the other car’s driver, William Horsman, who did not appear at trial, was bankrupt. Thus, only 60 percent of the award was collectible. The Appellate Division turned away the plaintiff’s appeal, saying juries should apportion liability without knowledge of defendants’ respective assets. But plaintiffs’ attorney Bruce Nagel asked the justices to allow juries to know the “ultimate outcome” of their decision so they can make the right one. “You can either allow the jury to follow directions or blindfold them,” said Nagel, a partner at Livingston’s Nagel Rice & Mazie. But the lawyer for Grinnell Haulers Inc. disputed the logic that the right decision is the one that lays blame on the defendant most able to pay. “That creates an atmosphere of potential intellectual dishonesty,” said Donald McCord Jr., a partner at Morristown’s O’Donnell, McCord & DeMarzo. McCord said the trial judge improperly allowed Nagel to discuss the fact that Horsman, who did not file an answer, was not present at the trial. In effect, he said, that made the case against Grinnell, which contested liability, worse. Justice John Wallace Jr. asked what was wrong with telling the jury about the ultimate outcome of its determination. “It gets the jury starting to think about things other than the facts,” said McCord. “Maybe about who they like more.”

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