One question I get a lot is if a party can change their judge. The answer is generally no. However, I will explain this answer more in depth.
When I was in law school, Supreme Court Justice Antonin Scalia came to speak to us. He referred to district court judges as “tiny tyrants,” which is honestly not too far off. Does that mean they are all tyrannical? No, not at all. Most judges I have practiced in front of command respect by virtue of their level of experience, and their deft handling of tricky situations. What he meant, and what I do believe is true, is that once elected, they pretty much get to call their own shots and are rarely called out for errors. Sure, the Supreme Court might overturn a ruling here and there. But, ultimately, so much is placed in their hands, and at their discretion, and will stand in the face of appeal.
As such, inevitably, some will be unhappy with their judge, or a particular outcome. The following article will go over the law, some tips and tricks, and options for how to proceed with your situation.
What kind of judge will you get?
Judges’ backgrounds and personalities vary considerably. First of all, some judges are appointed and some are elected. If a judge has been appointed, they have to be elected for their next term. Generally, they are successful in this, sometimes not. Most judges have to be lawyers, but justices of the peace are not required to be attorneys.
All judges have to go through judicial training, and they have their own ethical guidelines as judges, just as attorneys do. Part of these ethical guidelines involve when it is appropriate to recuse themselves from a case.
Judges are randomly assigned to your case. You do have the option for a one time judge substitution. To do a judicial substitution there is a simple motion, and you pay $100 (unless you have been granted a fee waiver). This is worth doing if you know that the judge is not a good fit for your case. However, you will be randomly assigned to a new judge, so you need to make sure you could not get someone who would be a worse fit. For me, and many other lawyers I know, there are judges that we will typically substitute out on every case, if assigned.
As in any profession, some judges are more “by the book,” and some are more likely to “follow their gut.” Depending on your case, you might want to consider a judge’s reputation, and if it is a good fit.
3 Tips for Dealing With Difficult Judges
While there might not always be a lot of options on dealing with a difficult judge, here are a few suggestions to make things easier.
Tip #1 Can you still substitute?
Check and see if you can still substitute the judge out. As mentioned above, you are entitled to substitute your judge under certain circumstances. Check and see if that is a possibility for you. If it’s not too late, and you think a switch would be prudent, you should proceed with filing a motion for substitution.
Tip #2 Proceed with caution.
Once your judge is assigned, they are the judge on your case until someone else is elected into their position (rare), they retire, or they pass away. Therefore, they will be on your case for a very long time. As such, do some research into how to behave in Court, how to be respectful to your judge, and follow any and all directions given to you by the judge.
Tip #3 Pay attention to court staff.
A really great way to impress your judge, or to at least avoid upsetting them, is to treat court staff with kindness and respect. These are the judge’s right hand people, and they spend a lot of time together. Generally, they have very cordial relationships. Judges have zero patience for people who are rude to staff, or do not comply with staff requests. Of particular importance: speak slowly and do not argue with the court reporter when you are on the record.
How often do judges recuse themselves?
Sometimes, a judge will recuse themselves from a case. For instance, I had a case where the judge knew my client when the two were growing up together in the same town. Apparently, this led to the judge feeling like he could not preside over her case, and he recused himself (rightfully so). If a judge does not recuse him or herself and should have, they can later be disqualified for cause and it can really screw up a case.
There are two paths to recusal: a judge recusing themselves, or recusal for cause.
Recusal for cause.
The law sets for the reasons a judge can be recused for cause. This is a very high bar to meet. If you are trying to show that a judge should be disqualified for cause, you must set forth a very factual explanation for the disqualification and you will need to be able to back up every contention that you are making against that judge.
If you want to pursue a recusal for cause, make the decision very carefully because if you lose, you still have the same judge, and they will likely not be pleased that you wanted them to be disqualified from your case.
Judges recusing themselves
There is a common law precedent (this means a precedent set forth in case law) that requires a judge to recuse themselves if they “direct, personal, substantial, or pecuniary interest in a case.” Now, the judge’s definition of any of those things might differ from yours. Judges rarely recuse themselves from a case. Part of the reason why this is rare is because they are dealing with a HUGE pool of people, and have direct, personal, substantial, or pecuniary interests in few cases proportionately. However, there are situations where a judge will know the parties, have represented a party in the past, have been opposing counsel against a party in the past, or be biased in some other fashion. In those situations, a judge is duty bound to recuse themselves, or an ethical complaint could be filed against them.
How Can I Help You?
Overall, if you don’t like your judge once you are into your case, there is very little you can do about it. That is why it can be very good to have the help of legal counsel. Your counsel will know the judges in the jurisdiction in which they practice, and know which ones would not be suitable for your case.
A really great way to get more insight on how your judge will affect your particular case is to book a consult with lawyers in your area, and ask about your particular judge, and what the attorney’s experience is with that particular judge. We offer a 30-minute consultation ($75) and can go over your case in detail and give feedback relevant to your situation. Contact us to set one up today!
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