Source of the following article Persuasive Litigator.
By Dr. Ken Broda-Bahm:
The peremptory strike is a well-established tool for addressing bias within a future jury. While the strike has its critics, the case is strong for having a method to address bias that is real but falls below the threshold of a demonstrable cause challenge. In dealing with potential jurors, the peremptory strike plays that vital role. But what about judges? A judge who is explicitly or implicitly hostile to you, your client, or your case, can slant the playing field against you in innumerable ways. In 17 states, you actually can, in effect, strike your judge through a process of automatic judge reassignment. In those states (Alaska, Arizona, California, Idaho, Illinois, Indiana, Minnesota, Missouri, Montana, Nevada, New Mexico, North Dakota, South Dakota, Oregon, Washington, Wisconsin, and Wyoming), the process seems popular and effective, and has been pretty stable for the last 40 years.
In the other two-thirds of the states and at the federal level, there is no such opportunity to strike your judge, leaving litigants with just the risky option of moving for disqualification or recusal, and then living with the result if the effort fails. A recent article from a University of Nevada Las Vegas law professor (Stempel, 2018), however, makes a compelling case for expanding this ability throughout state and federal courtrooms as a means of expanding access to impartial justice. The question is also tied to the issue of a declining civil jury trial, because when a party is stuck with an adverse judge, or with a judge who is bent on managing the case out of existence, that party can be pushed to accept alternate means of resolution when a trial could have been the better outcome. The one-time ability to get an automatic reassignment at the start of litigation gives parties a better shot at a fair trial. For litigators in those 17 states, the implication is to be aware of and to use the tool. For litigators in other states or the federal system, there is nothing to do except build and spread the public case for judicial strikes. So that is what this humble post seeks to do.
It’s the Bias
When dealing with jurors, the court system believes and acts as though jurors are at least a strong potential source of bias. That bias is not always known by a potential juror, and when it is known, it is not always admitted. For that reason, potential bias needs to be handled in a way that recognizes nuance and places discretion in the parties’ hands. The early legal model, however, holds that judges are somehow different. Except in extreme cases that usually involve a direct conflict of interest, it is presumed that they’ll be neutral arbitrators, fairly applying the law no matter what they think of you, your client, or your case. However, anyone who has studied psychology, or spent time in a courtroom, knows that isn’t true. The law degree, time on a bench, and expectations of the office don’t convey an immunity to human nature. Drawing from the research, Mr. Stempel observes, “Judges, like all humans, are prone to cognitive error.” A judge’s strike provides a means of avoiding a judge who is hostile to your type of case, to the kinds of law you need to rely on, to your likely witness pool, or to you personally.
It’s the Management Orientation
One of the biggest factors in the decline in jury trials, and trials in general, is the orientation among some judges that they really aren’t trial court judges. Instead, they are case managers whose main goal is to shepherd cases as quickly and efficiently as possible out of the system. If a case ends up going all the way to trial, that is seen as a management failure. A judge with that orientation can use all of the considerable tools at their disposal — scheduling, required meetings, adverse rulings, etc. — to make things inconvenient, expensive, and uncertain for the party or parties that are pressing for trial. Sometimes it is the right path to resolve the case outside the courtroom, but not always. When a litigant wants a clear path to trial, but draws a judge who isn’t going to provide that, the judicial strike is a way to deal with that, and as the author notes, “reduce the risk that claims will be ‘smothered in the crib’ by hostile trial judges.”
It’s the Politics
One reality in our increasingly politicized society is that judges are not above partisan politics. The fact that congressional republicans embargoed judges all the way up to the Supreme Court in the last president’s final years and are now rapidly filling those seats, is testament to the judiciary’s partisan underpinnings. In addition, 80 percent of state court judges are elected, and elections are increasingly partisan affairs with even nominally “nonpartisan” races often being overlain with a partisan lens. Of course, having a political opinion does not necessarily mean that a judge is going to be unfair. But if you draw a judge who is known to have and to apply views on plaintiffs, personal injury suits, employment, or environmental cases, and who may have even been elected or nominated on the basis of those views, then the possibility of a fair trial for a party trying a case running counter to those views would seem to demand some method of a judicial strike.
At the end of the day, it is about allowing the parties who have everything at stake to have some level of control over who is going to have the power to decide. That just seems like basic fairness. As professor Stempel concludes, “Permitting litigants some flexibility to avoid a claim-killing or otherwise problematic judge, is a small but workable solution that will advance access at the margins.”
Other Posts on Judges:
- Argue With the Other Side, Not With the Judge
- Know Your Judge…Through Analytics, Not Anecdotes
- Leading Motives and Trailing Personal Stories: Lessons in Jeffrey Toobin’s “The Oath”
- Practice the “Three P’s” of Oral Argument: The Example of Paul Clement
Stempel, J. W. (2018). Judicial Peremptory Challenges as Access Enhancers. Fordham Law Review, 86(5), 2263.
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