Last week’s news concluded with a jury awarding $83 million in punitive damages in a New York defamation trial involving a certain former U.S. President. This week started with a Motion filed by President Trump’s lawyers asking the judge who heard the case to recuse himself. To be precise, this seems to have come as a letter asking the judge to vacate the verdict because the judge was biased. In lay terms, it’s pretty much the same.

This is not a civil trial blog. It is not a political blog. But it probably comes as no surprise that family law litigants are sometimes unhappy with the performance of the judge hearing their case. Typically, this comes during the hearing when the judge’s rulings, comments, demeanor, whatever, signal that your presentation is not going well. Sometimes, the judge signals the problem is the lawyer, sometimes it’s the client and sometimes, it’s both.

Clients like to assume that once the green flag drops and the case begins, it will be all smooth sailing. They are right; the other side is wrong; bad; evil; worse. The judge will see it instantly and rule in your favor. Unfortunately, trials are more often marathons than sprints. And marathons often can produce lapses in both temper and judgment from the parties and the person doing the judging. It’s not supposed to happen, but it does.

First and foremost, you don’t move to remove a judge or light or transient causes. Disqualification requires a specified fact, circumstance or condition that makes a judge ineligible or unfit to serve, or otherwise deprives the judge of the power to preside. 207 Pa.Code Section 15-1. The conduct of the judge must demonstrate clear bias and prejudice. The mere fact that a judge excludes your evidence or responds dismissively to your theory of a case is rarely a basis to secure recusal/removal of the judge. Also, understand that in the first instance the motion is directed to and decided by the same judge you are unhappy with. He/she will decide whether to step away from the case. You don’t see some higher authority magically appear to gauge the situation and there is no “replay booth” to decide whether your evidence got into the end-zone.

Understand as well that judges rarely take kindly to requests that suggest they have committed egregious error such that they must stop the case; send it to another judge and have the entire case start over. If they should grant your motion, they are acknowledging that they really messed things up and they need to ask a fellow judge to come in and straighten matters out with a brand new proceeding. For you and your opposing party that can be an expensive motion to win. If you fail in your mission, don’t think a judge is going to just pass it off as a misunderstanding. Put concisely, a motion to recuse says: “Judge, you don’t know what you are doing.” That rarely endears you or your counsel to the person assigned to decide your case.

There was some colorable basis to attorney Alina Habba’s claims but her timing could not have been worse. The plaintiff’s lead lawyer in Carroll v. Trump once practiced law in the same law firm as the presiding judge. The lawyer working alongside her had once been a law clerk to the judge. But the person hearing this case left the Paul Weiss law firm 30 years ago to become a judge and the law clerk’s on-line biography clearly states that she clerked for Judge Kaplan. If the defendant’s attorneys perceive this as bias meriting recusal their obligation is to bring the topic to the court before the trial ever begins. There are times when a trial is diverted because the judge realizes that a witness is a close friend or bridge partner. That’s a surprise. But not knowing the background of your opponents is a plain error the lawyer had a responsibility to raise at the first opportunity…. not after the case is concluded. This is true of nearly all disputes during a trial. If there is a problem with the evidence or the jurist hearing it, the law is clear that the lawyer must object and plainly state the problem so that it is on the record (transcribed by the court reporter in the courtroom). Rare if not impossible is the ask to “do it over” after the case is decided.

There are times when there is no practical choice. The judge’s conflict or bias is CLEAR. But adverse rulings or occasional snarky comments are almost never a basis to have a judge removed and appellate courts are loathe to get involved in these matters.

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