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Expert witnesses In arguing that it is indefensible to ask an expert on how many prior occasions she had qualified, Edward J. Imwinkelried mistakenly contends that such questions invite inadmissible hearsay. “Qualification Testimony” [ NLJ, 10-31-05.] To the contrary, such questions have not become virtually standard practice by accident. As an initial matter, evidence presented to a judge for preliminary fact-finding is not constrained by the rules of evidence. Fed. R. Evid. 104(a). In addition, unless the interests of justice require otherwise, juries, too, may hear preliminary evidence presented for the judge’s benefit. Fed. R. Evid. 104(c). Moreover, prior-qualification testimony is nonhearsay. When a judge has stated in another case that the witness was “qualified” to testify as an expert in that particular case, the judge has done more than merely make an assertive statement about expertise (i.e., “the witness is qualified”); the judge has acted (i.e., “I qualify the witness”). The judge’s declaration is a so-called verbal act, just as is the declaration, “We have a deal.” See, e.g., U.S. v. Cardascia, 951 F.2d 474, 486-87 (2d Cir. 1991). Further, a court’s qualification of a witness as an expert becomes, effectively, a credential-akin to a school’s finding that the witness has completed course requirements. Thus, contrary to Professor Imwinkelried’s thesis, when out-of-court actors, be they judges or otherwise, have credentialed an expert, it is appropriate for the expert-and the courts-to take note. Likewise, when an expert has previously been disqualified from testifying as an expert in a case, she ought appropriately to expect to carry the stigma with her. Jonathan B. Tropp Stamford, Conn. Judicial pay raises “No need to boost salaries” [ NLJ, Jan. 16], attacking Chief Justice John G. Roberts Jr.’s judicial pay raise proposal, could not be more wrong. Yes, of course judges, particularly federal judges, enjoy “a very comfortable living, prestige, respect and power.” And yes, of course we won’t suffer empty seats on the federal bench if we even cut their pay. But it is not a “groundless assumption” that judges’ pay is a significant factor in who fills those seats. This is a matter of facts, not assumptions. As the chief justice pointed out, since 1990, 92 federal judges left the bench, 59 going to private practice. Go beyond the usual simplistic comparison of judges’ pay and inflation to three key facts. Fact 1: Between 1789 and 1989, 69 federal judges left for other jobs-fewer than one every two years. But since 1990, it’s about four every year. Fact 2: The most written-about federal judge’s exit, that of New York’s Simon Rifkind, was in 1950. At that time, federal judges earned only half as much as New York state judges, and 25 times as much as a year’s tuition at Harvard Law School. Since then, federal judges’ pay has moved well ahead-but now they earn only five times Harvard tuition. And tuition is a very pertinent measure: The Indiana Supreme Court was the first to suffer, and more courts are suffering, from “maltuition”-judges leaving because their pay doesn’t take care of their kids’ education. State judges are falling behind other public employees: Arizona’s chief justice earns less than the Maricopa County director of parks. Fact 3: From 1995 to 2004, state judges’ increases were better than federal judges’-but their pay rose less than half as much as first-year associates’, less than one-third as much as median profits per partner and less than one-quarter as much as average profits per partner. Federal judges’ pay is the pacesetter for all judges. We drown in rhetoric about judicial independence. The most important step to assuring a strong bench is appropriate pay. Roy A. Schotland Washington The writer is a professor at Georgetown University Law Center. Immigration judges I am the director of The George Washington University Law School Immigration Clinic, and I am writing for myself as well as six current students and 12 alumni of the clinic. We write in response to Pamela A. MacLean’s “Immigration judges come under fire” [ NLJ, Feb. 6]. Law students in our Immigration Clinic have defended the rights of aliens in the Washington area since 1979. While we find the behavior of the immigration judges highlighted by Ms. MacLean to be disturbing, our fear is that the one-sidedness of the story may lead some to conclude that this type of conduct has become commonplace throughout the ranks of these judges. We believe this is a fear shared by many immigration judges. As Ms. MacLean pointed out, the immigration judges’ union itself has been among those pushing for the tracking of disciplinary actions brought against individual judges. In our experience at the immigration court in Arlington, Va., which serves the greater Washington area, we have never been subjected to treatment even remotely similar to that described in the article. The judges we have come before have been professional, respectful, competent and mindful of the serious consequences that result from their decisions. It is not our intent to detract from the seriousness of the problems raised in the article. We simply caution against making generalizations about all immigration judges based on the actions of a few. Alberto Manuel Ben�tez Washington

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