Wednesday, July 17, 2013

Moving to Disqualify the Judge on Bias

I felt this about my Judge when I was in court. He should of removed himself ,and allow the Judge who was suppose to stay on my case till the end, to remain. I knew before the court hearing was held , that this Judge was gonna rule aganist me, and he did and also refused me to get an appeal.

As a general rule, a motion to recuse that is properly written and gives any reasonable basis for the doubt of the client that he or she will receive fair treatment without bias is enough to mandate that the Judge recuse himself or herself. But it is up to the Judge’s discretion to determine whether the motion was filed in good faith. So if you are going to try to disqualify every judge, you are going to met with resistance you cannot overcome.
Recusal of a judge is a serious matter. If they blow up in the courtroom in anger and obviously have some personal issues with the case, the parties or their lawyers then it is proper to say that it is probably a good idea that they recuse themselves and they often will do just that without motion from either party.
Bias is not easy to define. Just because a judge rules against you on something doesn’t mean they are biased. And if the Judge doesn’t apply the law correctly in your view that doesn’t mean there is bias either, but then there is an appeal if you made a proper record.
If you think that substantive bias is at play then you should say so and inquire of the judge as to whether he or she is making certain presumptions that the law doesn’t require or permit. These inquiries must be specific and tailored to the case at hand rather than general political affiliations. I would liken it to examining an expert for their credibility, and whether they have ever found that their client was wrong etc. Your questions should be directed at issues that are present in the case.
“Judge, my client has raised some questions about possible bias and I would like to address some questions to the bench if your Honor would permit it. Have you already made up your mind about the merits of each side without examining any of the evidence? Is there anything stopping you from waiting until all the evidence is in before you make up your mind? Do you have any preconceived notions about the credibility of my client or the other side? Do you think it matters whether the party bringing this foreclosure is in privity with anyone in the chain? Do you think it matters that the party bringing the foreclosure action has or has not paid anything to acquire this loan?” There are many other questions you could ask. Some will be rebuffed by the judge and some won’t. By artfully crafting your questions you might be able to direct the judge’s attention to factors you will be later arguing, and getting him or her to see these arguments or facts in a whole new light. That is where experience as a litigator comes in. If you challenge the judge in an adversarial manner you better be willing to go all the way through possible contempt of court. It takes courage to be willing to have the bailiff grab your shoulder or even put cuffs on you.
If your questions do not reveal any such bias, then it is time to drop it. The client may still object in which case you should state the objection on behalf of the client and let the judge rule without further argument from counsel. Remember this should be done out of respect for the court system as well as the judge sitting on the bench in front of you. There is a good chance your motion will be denied and you will now be stuck in front of a judge who is growing more hostile to you or your client by the minute. Be careful in what you say and how you say it. If you really want to pursue it, you can bring it up on an interlocutory appeal in some jurisdictions but you better have some strong indicia of bias on the record (not in your head) or else your appeal will be denied summarily.

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