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Rebuttal to Comments on Affidavit-of-Merit Substantial Compliance Dear Editor: I read with interest the article in the March 1 issue regarding Tunia v. St. Francis Hospital et al., in which I represented Dr. Del Monte ["Plaintiffs' Lawyers Scratch Heads Over Conflicting Law on Affidavits of Merit," 175 N.J.L.J. 733]. I realize, of course, that there are space limitations to such articles. Nevertheless, I feel that the comments do not take into account the facts here. Before making comments about an “outrageously bad decision,” William Gold would do well to read the submissions in the Appellate Division. Leaving aside the plaintiffs’ substantial shortcomings in complying with discovery as ordered by the trial court, as to which the trial judge made clear her displeasure, the plaintiffs had an occasion to remedy the shortcoming of their “affidavit” but failed to do so. Specifically, the plaintiffs’ first attempt to comply with the affidavit requirement was a submission by a doctor who did not meet the statutory requirements for experience and qualifications, and who was therefore statutorily incompetent to give an affidavit of merit. In addition, this first document was also merely acknowledged and not certified or sworn to. This was pointed out to counsel by the original trial court. Notwithstanding being told this, plaintiffs’ second attempt to comply with the statute corrected the first error but not the second. The second doctor had the required experience and licensure, but again, inexplicably, the document was acknowledged and neither certified nor sworn to. I argued, and the Appellate Division agreed, that in order to comply with the statute there had to be a showing that the person executing the document was doing so under circumstances evidencing knowledge that the person would be subjected to punishment for false swearing if the statements were shown to be willfully false. This does not mean a perfect affidavit or certification. As I told the reporter in this matter, I could see circumstances in which a document might be technically deficient, but in substantial compliance with the statute. For instance, a doctor executes an affidavit in front of a notary whose commission, unknown to the doctor, has expired. Or the notary erroneously enters the wrong year on the jurat, as many of us do with our checks in the first month of the new year. Or instead of the certification language customarily used in New Jersey, the doctor uses language akin to that on federal tax forms: “… under penalty of perjury, I certify that …” Here, there was no substantial compliance. The document was acknowledged, meaning that the notary confirmed that the doctor was, in fact, the person who signed the document, and that he did so voluntarily. The doctor neither swore the contents in the document to be true, nor certified them to be so. The plaintiffs argue in their motion for reconsideration that jurats are not necessary for a document to be an affidavit. I disagree. There must be some evidence that the person executing an affidavit is doing so under oath, and this is done by the jurat. Without it, the document is no more than a letter, signed by the author. I do agree with Louis DeVoto, who is quoted in the article. I doubt very much that this case will have substantial repercussions, given the rather unique facts present. I would expect that the courts will, in future cases, continue to recognize legitimate cases of substantial compliance, and will not dismiss cases for undotted i’s or uncrossed t’s. James J. Tutak Kearny In Support of Dow’s Appointment Dear Editor: I have read with interest and, at times, great chagrin, the myriad articles and letters in The Star-Ledger and the Law Journal over the last six months regarding the controversy over the permanent appointment of Acting Essex County Prosecutor Paula Dow. What amazes me is how her detractors have seemingly passed judgment on her appointment without having any experience whatsoever in law enforcement or the inner workings of the prosecutor’s office. As a law clerk, assistant prosecutor and first assistant prosecutor who spent about six years in that office, and knowing the talent and personnel that still exists there, I believe I can add the following: 1. The morale in that office, and legal and investigative talent therein that existed under Prosecutor George Schneider (1981-86), was outstanding. 2. The current legal and investigative talent in the office is still outstanding. There are prosecutors working for a third of what they can earn in private practice and investigators who are probably working for half of what they could be earning as private detectives or security personnel for major private entities. 3. For about 15 years, the morale has ostensibly slowly plummeted to a nadir that may, at first glance, seem impossible to overcome. 4. The appointment of Paula Dow, in point of fact, is exactly what the office needs and now has. Much of my current practice is devoted to representing law enforcement officers in various matters. It is not uncommon for five to 10 law enforcement officers to pass through our doors in a given week. When the issue of Dow’s status as prosecutor inevitably surfaces, the overwhelming consensus of these individuals seems to be that she is doing an outstanding job, but her hands are tied. Remember, these are people whose lives are devoted to law enforcement. They are truly the ones “in the know.” Dow is an Ivy League lawyer, most of whose career has been dedicated to law enforcement. She has served as counsel to U.S. Attorney Chris Christie, whose reputation is impeccable and who obviously trusted her with extremely critical decisions. She has worked in the U.S. attorney’s office in New York. She is admitted to the bars of three states. She worked as staff counsel to Exxon. I do not remember a prosecutor to possess credentials such as these, going back to the days of Joseph Lordi. Not to confirm Paula Dow would be a rank injustice (and would likely reduce morale within the office to an even lower level). She is apolitical. She is obsessed with getting the office back on track and restoring its reputation to that of the finest law enforcement office in the state. But, most of all, she possesses the innate ability to so do. So let her do it already. Patrick P. Toscano Jr. Nutley

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