October 12, 2018 • By Dennis Beaver
“Is it possible to prevent a certain judge from hearing my case, or, am I stuck with whatever courtroom I’m assigned to? Is there a way to reduce the chances of having a judge who has a reputation for being a ‘loose cannon,’ not following the law, unfair and nasty to the people who come to their courtroom seeking justice?
“I have a case in the Kings County Superior Court coming up, but live in Los Angeles, and really appreciate your advice. Thanks. Benjamin.”
We’ll answer those questions in a moment, but first, step with me into H.G.Well’s Time Machine as we begin our legal education at Loyola University School of Law, downtown Los Angeles. First day, first class, Contracts, Professor Smith: formal, a reputation for being tough, and a member of the California Bar.
“Talk about brain power,” you whisper. “Lawyer, law professor and practices law. All our teachers are LAWYERS! I just hope to pass the first year exams.” I agree, in awe of these brilliant people who, in our minds, are like deities.
Smith says, “One day, some of you will become judges.” “Judges? That’s like being a God. Some of us?” you mumble.
By the second and third year of law school, we accept the fact there is one God and it isn’t any of our professors. Fast forward a few years in law practice, and we wonder, “How did some of these people pass the bar exam, and how could the governor appoint the class idiot as a Superior Court judge?”
So, if you are headed to court and believe that a courthouse is a place where fairness rules, that the people wearing black robes see the world free of bias and prejudice, answers to our reader’s questions can mean the difference between getting a fair shake or losing before stating a single word.
Lawyers call it “papering a judge.”
Attorneys who appear in court on a regular basis get an idea of which judge is better for a particular type of case and those who reek of bias against certain lawyers or classes of parties.
For example, should a client with the “wrong” lawyer appear in their court, they will routinely find for the other side in custody cases, regardless of recommendations made by county personnel who evaluate where the children should remain.
You’re thinking, “But aren’t judges supposed to separate personal feelings and emotions from their rulings?” That day may arrive when we address emotionless, Artificially Intelligent robots as “Your Honor,” but until then, judges are human, some better able to see and quash their own bias, or remove themselves from a case, and others with an agenda.
When it comes to competent legal representation, this can be the moment of truth; will your lawyer speak up and disqualify the judge, or, wimp out, afraid of creating a bad image of themselves in the court’s eyes?
The law provides two ways, of “papering the judge,” as lawyers call it, by filing:
1. (A Peremptory Challenge of a trial judge under Code of Civil Procedure (CCP) section 170.6. A party or attorney may disqualify a judge based on a sworn statement of belief that the judge is prejudiced against that party or the party’s attorney. The results in an automatic disqualification of one judge without proving prejudice or bias.
2. A Challenge for Cause. CCP 170.1 requires specific grounds and proof, such as the judge has a personal relationship with some of the parties, has a financial interest in the case, personal knowledge of the facts, and so on. If your challenge is denied, the case remains with the judge.
If you file a Challenge for Cause, better have your ducks lined up in a row or prepare to have your case as the main ingredient in duck soup.
When must you file your challenge?
There are specific time periods in which to seek disqualification of a trial judge. The general rule is that disqualification is permitted any time prior to the commencement of trial, but there are exceptions. If the time periods are not met, the motion to disqualify will be denied, so find out what applies in your county. If it looks likely, be on top of this yourself.
How else can I know to keep or disqualify a judge?
The quicker you know as much as possible about the judge assigned to your case, the better, so use Google. Look for newspaper articles which reveal bias, prejudice or outright incompetence. If the story was written by a reporter who you know, give them a call.
Remember, the most dangerous person in the courthouse can hide beneath a black robe.
Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.