Convincing a judge to recuse him or herself is one of the most difficult things to do when it comes to the American Court system. Typically, judges are often considered the most unbiased, fair-minded, law-abiding members of our communities [at least, before the recent confirmation hearings]. They generally have experience and go through training before they are elevated to the position of “judge.”
However, if you believe that the judge assigned to your case truly has an unjustified or personal bias against your client, you, or the type of case you are handling, there are some (limited) action steps you can take.
Understand the Risk
To be completely honest, getting a judge to recuse him or herself from a case is difficult. Your legal representative must submit an affidavit demonstrating clear grounds that this judge is either going to be biased against or for you for whatever reason. Or, in the alternative, that if this judge rules in your case, it will have an appearance of impropriety.
One risk in requesting a recusal is if your request is denied. Now you have claimed that the judge is unfair and unbiased... but he or she will still hear your case.
In other words, be thoughtful when deciding whether or not to request a recusal, because it may backfire and put your case (and your attorney, for that matter) in a more difficult position. Judges are not supposed to take these Motions personally, but it is hard to imagine that he/she will not be offended by the allegation that he/she cannot be fair and impartial.
When to Request a Recusal
It is appropriate to request a recusal if you have had in the past or currently have a personal relationship with the judge. Another instance may be, for example, when a judge has publicly demonstrated a clear bias in a certain situation, or has undergone a certain situation that is similar to the one you are presenting.
Let’s use Judge Kavanaugh as an example. Before he was a Supreme Court Justice, Judge Kavanaugh was a Court of Appeals judge. So, if someone was appealing a case where a man sued a woman for making false accusations of sexual assault, that would be the type of situation where it would be best if Kavanaugh were to recuse himself since he had a very public and emotional experience with the same issue. However, Kavanaugh could deny the Motion, saying he was fully capable of remaining independent and deciding the case on the facts. Having seen Kavanaugh’s actions during the confirmation hearings, would you have concern that he might hold the Motion against the filing party? I would.
However, like I said, it is a difficult process. I have never personally requested a recusal, although I did once come close, years ago. I had filed a grievance against a judge in one case and it turned out I was assigned that same judge in another upcoming case. I felt that he was not going to be fair toward my client because of the grievance I had filed.
I’m not sure if it was coincidental or whether the judge had something to do with it, but the case was assigned to someone else, and I didn’t have to request the recusal in the end.
Ultimately, if you have strong grounds as to why a judge should not hear your case, it is likely that he or she will recuse him or herself first. However, you may still request the recusal through your attorney if you feel strongly about it and the judge does not take him or herself off the case.
If you’re preparing for a legal battle in Boulder County or the surrounding area, let’s talk. It’s important to know your case inside and out to make sure you are 100% prepared to go to Court.
Call us at 303-449-1873 to set up a free consultation.