In my years of lawyering, I’ve appeared before dozens of judges.  Here in Minnesota, most of them are diligent, fair, and work hard.  However, there are a few judges who are definitely biased and do and say inappropriate things in court.  If you are scheduled to appear before one of the bad ones, what can your lawyer do to protect you?

There are a variety of “weapons”:

1.  Judge shopping.    Experienced lawyers get to know the judges who preside in their districts or can ask other lawyers for advice.  Besides the right to have a trial, an accused person usually makes several court appearances before the actual trial date.  Typically, in large districts that means the person will meet different judges for each court appearance.  Among those judges, the lawyer can choose which one to work with and settle the case.  Appearing in front of a bad judge, the lawyer can simply continue the case for the next step, hoping to draw a better judge.  In criminal cases, the defense lawyer can control this but in civil cases, either side has some control about these decisions.

2.  Automatic Removal  Most jurisdictions have a provision in the law that allows any lawyer to automatically kick the judge off the case without having to give any reason or explain why he did it.  Sometimes, a judge has a particular bias about certain issues and if any of those play a part in the case, the lawyer can remove the judge.  Usually, this process is restricted to one time for each case.

3.  Ask the Judge to Remove Himself  A recent example of this occurred in the courts where I practice.  In a criminal case handled by the county prosecutor, the judge hearing the case was married to a prosecutor in the same office, although she wasn’t involved in that particular case.  The lawyers for the defendant asked the judge to “recuse” (don’t lawyers talk funny??) himself.  If the judge disagrees and remains on the case, the lawyer’s only alternative it to appeal that decision.

4.  Appeal  People assume that an appeal to a higher court means a review of everything about the case.  Not true.  Almost always, the appellate court will not change the facts but only look at the judge’s rulings.  If they violate the law or are so biased that they prevent the party from getting a fair trial the appellate court may reverse the judge’s decision.

5.  Be a Good Lawyer  If the previous strategies don’t work, the lawyer must do his best as the case proceeds to minimize the worst aspects of the judge or, at least, “make a record” which means he mentions his concerns about the judge’s behavior/rulings in open court while the court reporter is present.  Those statements may form the basis for an appeal later.