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In a case that boils down to a duel between experts’ testimony, does one side gain an unfair advantage when it calls in a former judge as its hired gun? Is there a presumption that juries will kowtow to experts who used to decide cases just like the one at hand? Some lawyers say yes, others say no. And the debate will continue, because two New Jersey Supreme Court ethics advisory committees have declined an invitation to outlaw expert testimony by former judges. The Advisory Committee on Extrajudicial Activities decided at a May 4 meeting that it lacked jurisdiction to rule on the propriety of expert testimony by the small number of former judges eligible to participate in litigation. State judges who retire and collect a pension are not allowed to appear in court on behalf of litigants and cannot serve as experts. But state judges who resigned without pension do appear in court, as do federal jurists not subject to state rules. They are the ones whose work is at issue. Glenn Bergenfield, a Princeton solo who represents plaintiffs in legal malpractice cases, posed the question last year to the Advisory Committee on Professional Ethics. The panel decided it was not a legal ethics matter and bumped the query to Judge Richard Williams, administrative director of the state courts, who referred it to the ACEA. Bergenfield had three questions: Can a former judge serving as an expert in a legal malpractice case give an opinion on a lawyer’s standard of care? Can the jury know the expert is a former judge? May former judges testify that their experience as a judge is part of the basis for the opinion? The questions apparently intrigued the ACEA. New Jersey jurists are subject to some of the toughest proscriptions on outside activities in the country. For instance, New Jersey judges, unlike colleagues elsewhere, cannot take honoraria or have earned income, even from teaching. The Supreme Court has come down hard on judges who lend their names to causes, political or otherwise. And judges presiding at trials are under orders to be careful about referring to ex-judges by their former titles, even in nonjury cases, to avoid the appearance of advantage. “Initially, the committee, as a whole strongly believes that at no time and under no circumstances should judges trade on their former office whether the judge has resigned without pension or is retired with pension,” Williams wrote to Bergenfield. But the committee decided that the guidelines on the activities of former judges do not deal with the questions Bergenfield raised and the committee does not have jurisdiction to advise judges who resign and are not subject to the Joint Retirement System, Williams wrote. Even so, the committee gave practitioners a hint about how to make trouble for an opponent who uses a judge as an expert: make a motion. “The Committee is of the view that these are questions that implicate the New Jersey Rules of Evidence and should properly be addressed to a trial judge presiding over a trial where the former judge is proffered as an expert witness,” Williams wrote. He elaborated in a brief phone interview last Wednesday that, “it may very well have to be a question answered in the context of a trial with a trial judge making a ruling about whether its probative value is outweighed by prejudice.” SPEAKING FROM EXPERIENCE The subject of Bergenfield’s query was Andrew Napolitano, a partner in New York’s Fischbein Badillo Wagner Harding who resigned as a Bergen County Superior Court judge and serves as an expert witness, occasionally in professional liability cases. In the case that drew Bergenfield’s attention, Napolitano served as an expert witness for a legal malpractice plaintiff who lost a chancery court fight over the ownership of a seat on the New York Mercantile Exchange but alleged that he might have won in an NYME arbitration if his lawyer had moved for a stay or an order to compel the arbitration. The plaintiff’s lawyer, Bennett Wasserman, a partner in Newark’s Stryker, Tams & Dill, hired Napolitano to support the plaintiff’s contention that a judge would have granted the motions, and Napolitano wrote that his opinion was informed by an analysis of the law, by legal principles “and my eight years of personal experience as judge of the Superior Court of New Jersey.” The case settled for $2 million. Napolitano declines to comment, but Wasserman rejects the notion that using a former judge in his case gave him an unfair advantage. “The other side could also have gotten an expert with similar credentials but the motion was really a slam dunk,” he said in an e-mail message Wednesday. “No former judge worth his robes would have expressed an opinion that differed from what my expert former judge opined.” He adds: “I don’t see why unfair advantage is an issue. Instead, the best-qualified expert was called upon to express an opinion in our proverbial search for the truth in the litigated case. Is that unfair? I think not.” Two former judges who have served as expert witnesses agree with him. One of them is Gregory Castano, who left the state bench in 1985 and was eligible for a pension but chose not to take it so he could practice law. Castano, who heads a firm in West Caldwell, suggests the ACEA’s dicta about judges who “trade” on their former office is harsh in the context of former judges serving as experts. “I don’t think they are trading on their former offices,” Castano says. “Being a judge is part of their credentials; the fact that they were judges was one of the qualifications in their background.” Former state and federal judge H. Curtis Meanor, whose main business work is alternative dispute resolution, occasionally serves as an expert in legal malpractice cases on both sides, but has testified only three or four times. He says it’s true that when it came to testifying, a former judge of lengthy experience “would be reasonably impressive. “But lawyers are pretty good at cross-examination, too,” he adds. A lawyer seeking an expert to bolster a questionable case might find someone among practitioners to provide a “whorish” opinion, but probably will not find a judge to do it, he says. “I will not support a proposition in a legal malpractice case I don’t believe is correct and I think no former judge would,” he says. “How far is this going to go with former judges?” he asks. “How about the guy who for five years was a local judge in some Podunk township. Are you going to stop him from being an expert?” JUDGE AND JURY Concern about former experts that might overawe juries has not stopped the courts from putting judges on juries, he notes. “I testified some years ago in Essex County and I’m sitting on a bench waiting for court to start and this familiar figure walks toward me and it’s Alvin Weiss, the former assignment judge,” Meanor recalls. “I walked up and stuck out my hand and said ‘Alvin how are you. I haven’t seen you in a while,’ and he says ‘Curt, I can’t talk to you, I’m on the jury.’” According to Bergenfield and Leon Piechta, the defense lawyer in the mercantile exchange malpractice case, the ethical logic that says former judges should not be identified by title in litigation is thrown out the window when a former judge testifies as an expert. Piechta says of the case in which Napolitano was to testify, for example, “My concern was his taking the stand and saying, ‘look I’m a former judge. I’ve handled these matters before.’ Obviously it’s part of his experience. I can’t stop it. “The impression that’s left is we have a judge telling us what the law is,” says Piechta of O’Donnell, Kennedy & Piechta in West Orange. “That’s prejudice. How do we keep it away from the jury?” Bergenfield said in an e-mail that he envisions cross-examinations in which former judges serving as experts are asked about their opinions as judges and whether they had been reversed and how often. And it could create an unpleasant escalation in which a lawyer worried about a former trial court judge’s testimony sought to hire a former appeals court judge. “Would I have the nerve to ask if my guy had ever reviewed the work of their guy?” he asks. “And did he reverse him?” He concludes, “Despite all the palaver about the independence of the expert, it’s a hugely partisan game and everyone, even juries, knows this. An expert who was a former judge would be selling himself to the fact-finder as somehow above the fray while in the middle of it, punching away.”

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