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Lawyers and Judges

July 18, 2012

In a recent Editorial the Eagle Tribune proclaimed “Lawyers should not be appointing Judges”. The Editorial was a response to an adverse decision by the Department of Industrial Accidents in favor of a former Lawrence Department of Public Works Supervisor Andrea Traficanti . The controversy centered around Judge John Preston’s Decision and his relationship with Traficanti’s Attorney Michael Torrisi.

First and foremost it should be noted that it is the Governor who appoints Judges with the advice and consent of the Executive Council. Torrisi’s role in the process was as a member of a 13 member review panel established by Executive Order and consisting of the Governor’s Chief Legal Counsel, the Director of Labor and Workforce Development, the Judge of the DIA and eight members to be appointed by the Governor, one of whom shall be a health care provider, one of whom shall be an attorney who does not practice workers’ compensation law, one of whom shall be an attorney who presents claimants in workers’ compensation matters, one of whom shall be an attorney who represents employers or insurers in workers’ compensation matters, two of whom shall be representatives of business and two of whom shall be the representatives of organized labor. One of the representatives of business shall be the President of the Associated Industries of Massachusetts or his designee, and one of the representatives of organized labor shall be the President of the Massachusetts AFL-CIO or his designees.

The order further provides panel members should be drawn from a cross section of the community reflecting both geographical diversity and diversity in its members.

The panel’s role is to conduct interviews of potential candidates and make recommendations to the Governor. The Governor under the Executive order is free to decline to nominate any applicant and seek further recommendations from the panel.

It is obvious that the composition of the panel attempts to include various points of view in selecting the best suited candidates for a DIA judgeship.

Attorneys representing employers or employees bring a perspective that is important in evaluating a candidate to ensure their instinct for impartiality. After all, who is better at observing Judges day in and day out for their skill in fact finding, fairness, demeanor, and temperament than an attorney in the courtroom.

It should be emphasized that under the system attorneys do not appoint judges, they make recommendations. It is also possible that a Judge that is appointed was not recommended by an attorney who would later appear before the same Judge.

Any litigant or their attorney has a right to ask a Judge to disqualify themselves if they feel there may be a reason why the Judge may not be capable of impartiality in a particular case. The time to do that is before the hearing as long as the reason is known, not as an afterthought when they are not happy with the result.

RALPH A. BARBAGALLO JR IS AN ATTORNEY AND FORMER MEMBER OF THE EASTERN DISTRICT JUDICIAL NOMINATING COMMITTEE

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