Recusing the old judge and getting a new one
So you think the judge hates you, huh?
Well, maybe, but just remember, it could mean that you are just wrong.
But, you say, the judge rules against me at every hearing! Well, maybe you're just wrong at every hearing.
In all my years of practice, I've only ever asked one just to recuse himself (step down) from a case. And that was only because he said something that I don't think he meant to say, but it made it look as if he was drastically opposed to my client. Judges are, by and large, very fair people trying to do the right thing. We lawyers almost never file motions to recuse judges, and there's a good reason for that: almost all judges are fair and honest. Even in those rare times that I lose a motion -- very rare :-) -- I've almost never thought the judge was biased or, for that matter, even wrong. Notice I said "motions." I can't remember the last time I lost a trial. (What's the point of a blog if you can't brag?!)
However, there is a way to get a new judge, and I'll tell you how it's done. But beware, if the judge doesn't step down, imagine what a position you'll be in after you've filed this kind of motion and lost. You think the judge didn't like you before? Imagine how much he or she will like you after you accuse him or her of being biased or incompetent.
File a Motion To Disqualify or Recuse the Trial Judge. In your motion, you'll have to describe why the judge needs to step down and order the clerk to assign a new judge. You'll also have to say why you "fear that you could not get a fair and impartial trial from the judge" and you'll have to swear to all of it. You may want to look at Florida Statutes Section 38.10 and the Florida Rules of Judicial Administration 2.160(f). If the motion is found legally sufficient (done right), the judge should immediately enter an order granting disqualification and proceed no further in
Remember, though, this is powerful stuff. You never want to file this motion and lose. It's a last ditch effort to help you win. If you lose, you may end up worse off than ever. As one of the partners in my law firm likes to say, "If you try to kill the king, you'd better kill the king."
posted by Brent @ 11:59 AM
5 comments
5 Comments:
Brent, I (meaning my wife in a nasty sox-year ONGOING custody dispute) have such a judge. This woman is incredible! For the life of me and as objective as I can be I couldn't figure it out ... that is until I did some digging (I'm a PI by profession) and found out that our/my lawyer is operating with a handicap.
The judge and opposing counsel are old law school buddies/classmates with a history that points to a possible romantic involvement while there. I kid and embellish not. I can't prove this beyond a doubt, but when I've sought out former classmates to verify this that tell-tale expression of *uh-oh* appears and then the I-don't-recalls, sorry-I-can't-helps, and I-would-buts start.
We just want a level playing field and a final hearing to end this six-year madness.
Is and do you think just the law school association is enough to recuse this judge? Christ I hope so. We're in Texas if this helps any. Thanks.
I don't know how it works in Texas, but Florida law doesn't have any specific allegational requirement for your motion to be granted, so there is no such thing as "enough." Once you file the motion and affidavit, a Florida judge should grant your motion without deciding the sufficiency (or even the truth) of your allegation.
Brendt,
I filed a judicial complaint awhile back against a Florida Judge, it went nowhere.
I had to come before him again on a contempt charge I filed against my ex wife,
Though he took his sweet time in rnedering a decision, he ruled in my favor.
She was ordered to pay medical costs for our sons, and he threw in legal costs as well.
Now I have to go before him again, as she has failed to pay any portion of the amount she was ordered to pay, continues to not let me speak to my children,( which he also found her in contempt for before) He has agreed to hear motions for contemt, motion to set legal fee's, and motion to allow my children to speak to the courts.
My new lawyerm wanted to try and have this judge recused, worrying that he may be trouble, I believe now that he will do the right thing.
Though I may get speedier results from a new judge, I am not convinced he is going to be a problem.
Further I know he does not care for the attorney representing my ex wife, which I feel may well put me in a better light.
It's almost always a bad idea to disagree with your lawyer. If your lawyer says recuse, you should probably recuse. But, just to be on the safe side, why don't you discuss it with other lawyers in your area? It's probably well worth the consultation fee to see if other lawyers think your judge should be recused from your case.
The great benefit in using a lawyer in a family law case isn't just that we know the law, it's that we know the judges. We lawyers have a saying: "There is as much law as there are judges." That means that knowing the law is one thing, but knowing how a judge will apply the law is entirely different.
After you spend almost every day arguing cases before certain judges, you get to know these judges well. You get to know how they'll rule. You get to know which parts of the case to emphasize and which parts to play down.
Judges have a massive amount of discretion in how they apply the law to fact patterns. Legislatures create very general laws, and judges must apply these general laws to specific fact patterns. We lawyers are good at knowing how judges will apply laws to specific cases because we watch it happen every day and because we speak to each other constantly about our fact patterns and how different judges are ruling.
If your lawyer practices all or mostly family law, he or she probably is right about the recusal. Though it wouldn't hurt to check it out, I'd stick with your lawyer's advice.
Just a quick update: since the time of this original posting, the rule number has changed. Rule 2.330 of the Florida Rules of Judicial Administration now governs disqualification of trial judges.
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