This is the final part of a four-part article describing experiences from "the other side of the bench."

Life in turbulent times is more tolerable when softened through whimsical twinkling eyes taking a look back. In that spirit, this exertion is a "step back" from my tenure in different roles at the Court of Appeals spanning the last quarter of the last century (1975 to 2000). The reminiscences, however, are principally of more recent vintage (2005-2017) that emanate after my judicial and academic careers. During the "retirement" stage from affiliated postings, I accepted a few engagements that landed me in witness chairs. Part 1 and Part 2 recounted my experiences at the Tortola High Court of Justice, British Virgin Islands Commercial Division in the Eastern Caribbean, and at the High Court of Justice, Queen's Bench Commercial Division, in London, respectively. In Part 3, we went "Down Under" to a three-member international arbitration tribunal in Melbourne, Australia. We conclude here with another trial Down Under, with testimony via Midtown Manhattan.

New South Wales, Civil Court, Professional Ethics and Malpractice Case. This engagement presented me with a quite different experience. I was obligated to testify as a New York law expert via closed circuit TV, sitting alone at night in a darkened transmission room in midtown Manhattan with a trial being conducted in Sydney, Australia, 8,000 miles away across many time zones and the International Dateline. The somewhat surreal simultaneity included that the trial was underway the following morning of my previous night-time testimony—an inverted sense of whimsy as in "Beam Me Over, Scottie—Down Under!"

When I showed up at the designated site and office building, a thoroughly uninterested New York City-type technician hooked me up and told me he would be in a nearby office should I encounter any technical problems. I was dropped in, as it were, like a parachutist into the middle of this Australian trial fully underway in a well-lit courtroom, albeit via ultra-modern equipment. It felt odd seeing figures scurrying about and talking in the bright courtroom in contrast to my intense darkness and solitary silence, except for light from the screen. Much had obviously transpired, including the testimony of the opposite expert witness from a New York City location unknown to me.

The trial judge's voice suddenly broke the silence in my solitary dark confinement. He must have flipped some master audio control switch. After introductions, formalities, and contextual protocols and instructions by the trial judge, I was fully plugged in to testify. My expert report on New York professional malpractice and ethics principles were placed in evidence. Cross-examination then began, interrupted here and there by individuals across the courtroom who I could not initially see, but whom the multiple cameras would pick up as they cross-scanned the courtroom scene.

After an hour or so, the cross-examination was stopped by the court evidently because of some objections, rulings, and confusion with bickering among the lawyers and judge about the nature and range of questions and materials being put to me. I was then told that, while the cameras would stay live at my end, the sound was going to be shut off; I would not be able to hear or understand anything that was then going to unfold in this curious high-tech side-bar. I might as well have been on another planet or on a Starship Enterprise module station. When the proceeding was to resume with me included, I was told that I would first hear from the judge who would flip on an all-persons audio switch.

So, sitting in that dark room, alone, and in eerie silence trying to anticipate what might happen next, I looked at my watch and saw it was already after 9 p.m., Eastern Time Zone. The quirky experience had flipped to beyond strange for this tradition-trained Ancient Mariner. The audio shut-out lasted about a half-hour that felt much longer and it found me observing a back-and-forth cross-fire discussion, with strong body language among the barristers and the trial judge. I pretended to myself that I could read their lips, but the body language gave me enough clues that the side-bar was not going well for the inquisitive barrister. The interruption, after all, had occurred at an unpleasant point for him as he pressed hard for me to answer his out-of-line questions. I smiled to myself in the darkness that this might be a good sign for the rest of my evening, if not for the barrister's simul following morning.

Then, the audio suddenly sprang back to life and brought me out of my reverie. I was told simply that the cross-examination was now going to resume after some limiting rulings, though I was not informed of their nature. The judge apologized for the awkwardness, and kindly expressed concern for my well-being. He asked whether I was able to stay longer to complete the cross-examination and wrap-up my testimony in view of the late hour at my end. When I assured him that I was ready to complete the task, he swiveled towards the cross-examiner and sternly (as I read the body language) inquired: "What else do you have for this witness within the limits of my rulings?" Sheepishly (again as I read the body language), the barrister announced that under the circumstances he was done with me. I was excused, with the thanks of the court for my proffer and availability. The screen went dark and silence enveloped my lonely space and unusual witness chair performance.

I practically skipped out into the New York City night, after saying good night to the technician who turned off all the equipment and lights. I met the lawyer who had engaged me for this role in the lobby of the building, and asked him if he had received any early assessment as to how things were going Down Under. All he said was that his colleagues there reported "Good Onya!" I later learned that in New York City lingo that was the Aussie equivalent of "Good Show."

I learned later from the outcome from New York defendant-lawyer who had engaged me as his and his firm's expert in this professional malpractice lawsuit as an aftermath to an airline disaster negligence settlement. The side-bar had resulted in a strong put-down of the barrister. The judge had ruled that he had strayed from proper cross-examination and instructed him to confine anything further to the strict limits of opinions only related to New York principles of law. The end result was a dismissal of the malpractice claims.

Needless to say, I was very pleased and impressed with the courtroom control exercised by the court in narrowing the cross-examination and thus protecting me and the process from typical but ineffective advocative incursions and hypothetical meanderings.

I was even more pleased, despite the eerie setting, that the authorized technology spared me the arduous (and costly) trip to Australia for yet another long-journey engagement (as with the Melbourne one, discusses in Part 3). Moreover, it allowed me to be a silent fly on the wall during a most fascinating technological side-bar that rescued me from the witness chair in that dark TV room and led me back out into the bright lights of Manhattan.

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Conclusion

This "step back" exertion has allowed me to peer through my nostalgic sunset-years lenses and tell a story, lightheartedly but with some real lessons, too. It recaptures a few of the experiences, with some poetic license and touches of whimsy, as it explores some expert witness encounters that were very different from those viewed on my judge's seat and at my professor's lectern.

I became more acutely aware of how easy it was to be the one to pose questions and to be in effective control—except, of course, when a lawyer might take literally a figurative utterance from the bench (supra, the introduction story in Part 1). That refresher, by the way, reminded me with a flashback of another occasional humorous exchange with lawyers who from time to time tried to turn the tables by posing questions to the bench in oral argument—and not necessarily rhetorically either. They were promptly reminded, with a winked smile by various Chief Judges that: "Here, Counsel, we get to ask the questions!"

Finally, from this sunset porch, I have come to appreciate better the difficult role lawyers and especially witnesses endure in contested settings. Having accepted and landed in various expert witness hot seats and been subjected to the personal anxiety and probing styles of different lawyers/barristers and often surprising directions and queries of judicial presiders (providential-rescue agents in several instances for me), I see myself today echoing Yankee baseball great, Lou Gehrig, that "I am the luckiest man on the face of the earth."

To conclude on another loosely related note about the dynamic of posing questions and answering them, I share this workshop experience at the New York State Bedford Hills Correctional Facility for Women. It started out and was conducted most seriously, but ended wryly and poignantly, thanks to the aplomb of a chaplain nun, and the tough honest decency of an inmate.

Sr. Elaine Roulet, the prison chaplain, had invited me to come to the prison to talk and be asked questions from inmates on how the justice system worked from my insider's perspective. After initial resistance, I relented due to the perseverance practiced by most nuns I have encountered in my life. I agreed to conduct the class within the prison and drove down from Albany alone. The forthright two-hour session with about 25 inmates was a fruitful experience for me, and I hoped for them. Also, in attendance in the conference room were some correctional officers, the Deputy Superintendent, and the Chaplain.

When the session was over, I was escorted to the Superintendent's Office for something like an exit interview. She casually asked: "How did it go, Judge?" I demurred, using the excuse that I do not grade myself, and turned to Sr. Elaine, instead suggesting that she was the right person to gauge whether the session met her expectations since she was the one who invited me. With a nun's wholesome smile, she replied: "Don't worry, Superintendent, the Judge raised no one's expectations that they would get out any sooner than their sentences required!" If there was any concern—implied in the warden's question—that I might rile up her wards, the chaplain-nun's wry sense of humor defused it. Everyone relaxed with a burst of laughter.

That curtain-call "Q and A" conference, however, ended with poignancy for me, rather than whimsy. As I was being escorted to my car to drive out of the prison grounds, a guard hurriedly caught up to us and handed me an envelope. It contained a "Handbook for Incarcerated Parents"—a manual co-authored by one of the inmates for her sister-inmates on how to keep in touch with family, friends and the world outside the walls. The name written on the return envelope was immediately recognizable to me as that of a particularly querulous inmate who had challenged me hardest with skeptical comments during the workshop. She reacted negatively to my opening disclaimer that I was not there to counsel them on the law and could not give legal advice or aid in any of their cases. She bluntly blurted out: "Then, why did you bother to come here?"

The exit-delivery of her Handbook, therefore, came as quite a surprise. When I opened the envelope and noticed her hand-written inscription on the inside flyleaf cover, I saw her message and was stunned: "To Judge Bellacosa: You have so much passion for justice—continue to listen to your heart—Fondly, P. B 'co-author.'" I treasure that Handbook and keep it close to my attention—if not my heart—literally (there's that word again!) The handbook, opened to the inscription, remains prominently on a shelf in my home library to this day as a powerful and very sweet reminder of that visit to a prison to talk honestly with inmates face-to-face. It is the most heart-warming—and illuminating—sentiment and lesson about anything I have done in my varied careers—no exaggeration. That day, it almost caused me to turn back in to the warden's office to show it off as the best answer to her query—proof positive that straight honest talk even and especially inside prison walls is what is really important in all that anyone is called to do in the performance of duty and responsibilities!

Joseph W. Bellacosa is a retired judge of the New York Court of Appeals.

Other articles in this series: