November 09, 2012 Top Story

When an Expert Becomes a Judge-Elect, Testimony May Proceed

Florida allows judge-elect to finish testimony before taking the bench

Lisa R. Hasda

A lawyer hires an expert witness to address the reasonableness of a request for attorney fees. The expert reviews the case file, provides an affidavit setting forth an expert opinion, and begins testifying at a hearing. The hearing is continued before the cross-examination of the expert is completed. The expert then wins judicial office. May the judge-elect conclude that testimony, or must the attorney find another expert?

Departing from its earlier decisions, the Florida Supreme Court’s Judicial Ethics Advisory Committee recently ruled that a judge-elect could conclude the testimony under such circumstances. That decision deepens the split among states on this issue, as Texas and Vermont have allowed a subpoenaed judge to provide expert testimony, whereas Nevada has not.

Factors Favoring Judge-Elect Testimony

The Florida Committee’s decision focused on Canon 2A of the Florida Code of Judicial Conduct, which provides that a judge “shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Canon 2B additionally provides that a “judge shall not lend the prestige of judicial office to advance the private interests” of others and that a “judge shall not testify voluntarily as a character witness.” These provisions mirror Rules 1.21.3, and 3.3 [PDF] of the Model Code of Judicial Conduct. Like the Model Code, the Florida Code does not specifically address the conduct of a judge-elect.

The Committee found the procedural posture of the case to be important, as the judge-elect had completed direct examination and was in the middle of cross-examination. According to the Committee, the judge-elect completed the vast majority of the work before the election. The case thus presented what the Committee described as “a classic ‘winding up’ situation,” in which the judge-elect was just finishing up work as an attorney. The Committee concluded that “forcing the parties to ‘start over’ on the attorneys’ fees issue would cause substantial prejudice in the way of additional expense and delay to the parties and the court.”

The absence of a jury also contributed to the Committee’s decision. “Why would the Committee conclude that judges would not be unduly influenced while a lay jury would be?” wonders Kevin J. Bruno, New York, cochair of the ABA Section of Litigation’s Expert Witnesses Committee. “You could make a better argument that sitting judges would not only be equally as influenced as a jury but maybe even more so because a judge-elect is about to become their colleague,” Bruno explains.

Differing Viewpoints

One Committee member dissented, believing that two prior decisions barring judicial testimony prevented the judge-elect from testifying. One decision prohibited a sitting judge from voluntarily testifying on behalf of the judge’s former karate student, although no jury was involved. The other decision also prohibited a judge-elect from testifying at a deposition that would be used at a jury trial set for after the judge-elect took the bench.

“For a judge-elect, a bright-line rule barring compensated, expert testimony, as opposed to percipient witness testimony, would make sense,” Bruno suggests. “I believe the committee reached the proper decision in the context of the way the canon is currently worded, but I think testimony of a judge-elect should be avoided.”

Other Section leaders support the idea of a judge-elect being able to testify. “If we dropped everything because we’re elected to the bench, we’d be neglecting our duties under other ethics canons we have,” says Sharon D. Sirott, Chicago, cochair of the Judiciary Subcommittee of the Section of Litigation’s Ethics and Professionalism Committee. “It’s not like [this witness is] up there wearing his robes and doing this [testifying],” offers Sirott. “I recall that a judge who was a nominee to the federal bench took a high-profile deposition the day before he was sworn in. I remember thinking, ‘You can’t do that.’ This judge-elect actually sought permission, which is admirable.”

Increasing Importance of Vetting Experts 

In light of the Florida decision permitting a judge-elect’s testimony, a chilling effect might still result. “These are really thorny issues,” Bruno contends. “Different committees could come to completely different conclusions even on the same set of facts.” In addition, Florida’s decision and others like it are only advisory in nature.

Attorneys should be careful about hiring a witness who has plans to seek judicial office. If you are going to hire an expert witness who is running for judge, “understand that the witness may be deemed ineligible to testify,” cautions Sirott. “With experts I retain, I sit down with them at the outset and make sure that they understand the matter I’m about to retain them for is going to last years, and I need to make sure they will be there and available two, three, maybe five years from now,” says Bruno.

“I’m sorry to admit that I’ve not had that same conversation with lawyers that I’ve talked with for purposes of retaining them as an expert,” Bruno acknowledges. “We as lawyers need to have that same conversation with attorney-experts as we commonly have with non-attorney experts. It’s not something I would have discussed prior to seeing this type of decision.”

Lisa R. Hasday is an associate editor for Litigation News.

Keywords: judge-elect, Model Rules of Judicial Conduct, expert witnesses, judicial ethics

This article presents the views of the author alone and not necessarily those of her employer, the U.S. Department of Justice.

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