Mastropole v. Giunta, 2012 N.J. Super. LEXIS 86 (App. Div. Jan. 15, 2013). This is a contract case that my colleague Marissa L. Quigley and I handled under the Appellate Division’s Pro Bono Civil Pilot Program. In a per curiam decision, Judges Lihotz and Kennedy reversed the trial ruling against our client. The panel found that the Special Civil Part judge below had “improperly prevented the parties from fairly presenting testimony, documentary evidence and argument pertaining to their claims and defenses … [and from] cross-examining each other and the non-party witness.”
The panel quoted at length from the transcript of the proceeding below, and found that, on the whole, the trial judge’s conduct “denied defendant simple due process.” “The judge essentially asked all the questions, many of which were objectionable, afforded the parties no opportunity for cross-examination, failed to ascertain if either party had additional testimony or evidence to offer, announced a finding and conclusion, and, thereafter, considered what appeared to be assertions of fact or argument by the parties and the witness, before stating his decision.”
Though a trial judge has the right to question witnesses, the judge may not become an advocate. The abuse of discretion standard of review applied to the judge’s questioning, but the panel found that the judge had gone too far in his handling of the witnesses.
The panel recognized the challenges that judges face in conducting trials with pro se parties. Nonetheless, the Appellate Division reminded trial judges that extra patience and care is required of them in dealing with unrepresented parties, quoting a passage from J.D. v. M.D.F., 207 N.J. 458, 481 (2011). The panel remanded the case for a new trial before a different judge.