Richard Underwood (University of Kentucky) has asked me to pose the following query:
A former student (now a defense lawyer) asked me what to do when the plaintiff’s lawyer uses a fact witness who is a former judge who wants to be called “Judge.” . I told the lawyer to address the problem to the trial judge. My lawyer asked the trial court to have the witness and the plaintiff’s lawyer not use the title “Judge” during Q and A. The trial judge referred the issue to the former judge/witness! I guess it’s a “Judge Club” thing. Naturally the witness wanted to be called “Judge”, and the plaintiff’s lawyer referred to the witness as “Judge” all through the trial. (Why am I not surprised?)
I think this may be a problem out there in lawyer land. I certainly think that the use of “Judge” is inappropriate in this context. Indeed, I am not in favor of former judges using such an honorific in any context. Would you mind raising this question on LEF? I found some authority in Delaware to the effect that a litigant/lawyer should not use the title “Judge,” but I have not found any opinions dealing with a witness who is a former judge. Admittedly, I did not have much time to search.
This is not the first time I have encountered this problem. A very good former trial judge and former state Supreme Court Justice used to play “expert” for plaintiff’s lawyers in insurance bad faith cases, and the titles were used at trial. I thought that that was inappropriate too (for all kinds of reasons).
Our Ethics Committee (I have not been on it for years) will not answer questions about “another” lawyer’s conduct, and our Judicial Ethics Committee will not answer questions from lawyers (only questions from other judges).
I suspect that this may be a “Southern” thing, but I may be wrong.