Is Your Judge Right for Your Case?

by Barry P. Goldberg, A Professional Law Corporation
Contact

Barry P. Goldberg, evaluates this question in every case he files on behalf of his injured clients. There is no magic formula for picking the right judge. More accurately, there is no set rule for which judge to reject and why. In Los Angeles County, judges are randomly assigned from the largest pool of anywhere in the country. It is impossible to have personal experience in front of every available judge.

It is an important initial task to keep up with the reputations of the various judges. Most attorneys will do a bit of online research. However, most research yields "puff" pieces about the particular judge when he or she was enrobed. Sometimes asking a colleague or two will help in this process. The truth is that a judge that is not popular with others may be just right for you and your client. Some of the most effective judges are routinely rejected by well-meaning counsel.

The task has now become more complicated in Los Angeles County personal injury cases which are assigned to a gigantic holding tank in the Superior Court's PI departments. The judges overseeing those cases will not be the judge assigned to try the case. Therefore, the time to challenge the judge will not occur until your case is actually sent out for trial. Therefore, counsel must be ready and informed about the prospective judge. Our office carries pre-printed forms to court on the day the case is assigned to trial to make certain that a poorly fitting judge can be disqualified without delaying the case.

There are essentially two kinds of disqualification motions. Code of Civil Procedure section 170.1 is the more traditional motion wherein there is actual evidence that a particular judge has knowledge about a particular set of facts, knows one of the parties or has a financial interest in the outcome. More often than not, it is the judge who will bring that information to the parties' attention and either disqualify himself or allow the party to insist on the disqualification.

Section 170.6 is by far the most common motion. That section allows any party to disqualify a particular judge merely by filing an affidavit of perceived prejudice as long as it is timely. Each party has the right to file a 170.6 motion once in a particular case. So, exercising a challenge should be used very judiciously. You could go from bad to worse. Or, you could get reassigned to a great judge for your case only to have the opposing side exercise its challenge. Section 170.6 should not be ignored because it is the legal system's method to insure that every case is handled fairly and to remove the public's doubt about the unbiased nature of our legal system.

"Section 170.6 guarantees 'to litigants an extraordinary right to disqualify a judge. The right is "automatic" in the sense that a good faith belief in prejudice is alone sufficient, proof of facts showing actual prejudice not being required. [Citations.]' [Citations.] The object of this section is to provide the party and attorney with a substitution of judge to safeguard the right to a fair trial or hearing. [Citation.] This section is intended to ensure confidence in the judiciary and avoid the suspicion which might arise from the belief of a litigant that the judge is biased where such belief is difficult, if not impossible, to prove. [Citation.] The section is liberally construed and the trend is to grant relief unless absolutely forbidden by statute. [Citations.]" (People v. Superior Court (Maloy) (2001) 91 Cal.App.4th 391, 394-395, original italics & italics added.)

In light of this liberal construction principle, the challenge motion is reasonably read both in its caption and in its body, as both a challenge for cause under section 170.1 and a timely peremptory challenge under section 170.6.

The big trick is filing the motion in a timely fashion. If the case has been assigned to a judge for all purposes, the motion shall be made to the assigned judge or to the presiding judge within 15 days after notice of the all purpose assignment, or if the party has not yet appeared in the action, then within 15 days after the appearance. If the motion is directed to "the trial of a cause with a master calendar, the motion shall be made to the judge supervising the master calendar not later than the time the cause is assigned for trial." (Emphasis added.)

Based on the above, trial counsel must be prepared to file the motion for disqualification when the case is assigned to trial. It is highly recommended that counsel in Los Angeles Superior Court carry pre-printed motions (and copies!) to court on the date of trial to be filed immediately. In addition, most judges will entertain a short recess for an hour or two to both confer with your client and to research the prospective trial judge.

While challenging a judge is a litigant's right, it must be done sparingly and with superior knowledge in order to insure a fair trial.

 

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Barry P. Goldberg, A Professional Law Corporation | Attorney Advertising

Written by:

Barry P. Goldberg, A Professional Law Corporation
Contact
more
less

Barry P. Goldberg, A Professional Law Corporation on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!