The Importance of the Judge to Your Lawsuit

The Judgment of King Solomon

Remember the tale of King Solomon and the dispute over the baby? The tale is recounted in the Bible in 1 Kings 3:16-28. According to the tale, two prostitutes who lived together each had an infant son. One prostitute accidentally smothered her son while sleeping, and then switched her dead son for the other prostitute’s live son.
The two prostitutes naturally fought over the live infant. Then the dispute was brought to King Solomon. He ruled that the baby should be cut in half and each half given to the disputants, and then carefully observed the disputants’ reactions. The real mother cried out that she would rather the live baby be given to the other prostitute than kill the baby. The lying prostitute demanded out of spite that the baby be cut in half. King Solomon immediately awarded the baby to the real mother, earning his place in the history books for his wise judgment.

In our system of justice, judges are called upon to be as wise and fair as King Solomon. Judges must engage in a balancing act of acting as neutral referees, process managers and gatekeepers of evidence. Judges are charged with ensuring a fair and efficient process for the parties, witnesses and jury, keeping inappropriate evidence from reaching the jury, and enforcing strict adherence to laws. That’s a tall order to fill, of course. In reality, not all judges are infallible. A few may be susceptible to flawed judgment, bias, prejudice, and even misconduct.

The Many Ways A Judge Can Affect Your Lawsuit

Even in a jury trial, a judge must still make scores, if not hundreds, of close judgment calls that can go either way and that can, ultimately, win or lose your lawsuit for you. Some experts have gone so far as to call the judge the “Thirteenth Juror” (in California, juries have 12 members). See, for instance, this Findlaw article, “The Judge’s Decision To Throw Out The Jury’s Guilty Verdict On The Murder Charge”, discussing the “thirteenth juror standard” under which a judge can throw out a jury’s verdict in a criminal trial.

During a jury trial, a judge’s management of the case can affect how the jury ultimately views the case in countless ways by:

1. Approving/disapproving certain evidence, witnesses, parties, and attorneys
2. Sustaining/overruling the objections of attorneys at trial
3. Keeping out/admitting controversial evidence to the jury
4. Taking over or commenting on an attorney’s witness or jury selection examination
5. Imposing time limits on various stages of trial
6. Participating in the drafting of the verdict form and jury instructions that goes to the jury

The judge also has the power to substitute his judgment for the jury’s. At all phases of litigation, parties can file sudden-death motions (demurrer, motion for judgment on pleadings, motion for summary judgment, motion for judgment as a matter of law, motion for directed verdict, motion for judgment notwithstanding verdict) which literally put the case into the judge’s hands and let her decide the winner, whether or not a jury has spoken. If the other party can’t prove to the judge that they have enough evidence to survive the motion, the suit is over. In some cases, this means the judge can even reverse a jury’s verdict, turning victory into defeat!

What makes the situation even more challenging is the fact that so many decisions of the judge are protected from appeal. In many cases, a party who is unhappy with a judge’s rulings must prove to the Court of Appeal that the judge “abused” his discretion – a high bar for any party to overcome.

Do’s and Don’t’s

Disrespecting or angering your judge is never a good idea. The judge can decide to take it out on you in thousands of ways, big and small. The judge could also find you in contempt and fine you or even throw you in jail. It is amazing how often this obvious bit of common sense can be lost on parties and attorneys alike. Walk into any courtroom and you may witness all kinds of surprising behavior on display in the courtroom, ranging from childish temper tantrums to bald-faced lying.

According to ABC News’ “Inside Lindsay Lohan’s Medicine Cabinet”, tabloid regular Lindsey Lohan got into hot water for having an obscene message to the judge painted on her fingernail. And according to AOL News’  “Woman Locked Up for Low-Riding Pants”, a New Orleans woman who wore low-riding shorts in court was sentenced by the judge to 10 days in jail for contempt.

Here are a few tips for the next time you have to appear before a judge:

1. Dress appropriately: Avoid baseball caps, bandannas, low-riders, tank tops, T-shirts with obscene messages, mini-skirts, etc. Business attire is safest.
2. Show up on time: If you’re stuck in traffic, call your lawyer immediately so that he can inform the court.
3. Address the judge as “Your Honor”: Don’t call her “Judge”, “Sir” or “Ma’am”.
4. Stand up straight: Try not to slouch. Try to keep your hands out of your pockets.
5. Leave food and drinks in the car: Most courts prohibit drinks and food in the courtroom.
6. Speak politely: Absolutely no obscenities and slurs.
7. Stay behind the table: Don’t approach the judge, the clerk or the reporter unless the judge gives you permission.

Dinging Your Judge

In California state court (but not in federal court), parties have the right to reject their first-assigned judge due to “prejudice” and ask that a new one be assigned to their case, provided they do so quickly (California Code of Civil Procedure § 170.6). Starting in 2001, the new judge has been assigned randomly. See “Bascue Institutes Policy of Random Reassignment Following 170.6 Disqualifications”. Lawyers refer to this process as “peremptory challenge”, or as “dinging” or “papering” the judge.

Thanks to the advent of email, forums and listservs, your lawyer should be able to access the latest thinking on judges. Of course, dinging your judge is not always advisable. In some (usually smaller) courthouses, word can spread fast and your new judge may not take your dinging of his colleague personally. Also, there is no guarantee that you will get a preferable judge the second time around.

According to Met News opinion piece, “Judging Judges”, the Los Angeles Superior Court judges who were “dinged” the most between 1/1/01 and 6/30/03 were as follows (note, this data is now several years old and several of these judges are no longer alive or sitting on the bench):

1. Ronald Sohigian  (358)
2. Mary Ann Murphy        (148)
3. Alan Buckner      (100)
4. David Workman  (92)
5. Malcolm Mackey          (92)
6. Richard Hubbell  (70)
7. Alexander Williams III (67)
8. David Yaffe         (66)
9. Ernest Hiroshige (61)
10. Jeffrey Wiatt       (60)
11. Irving Feffer        (59)
12. David Schacter    (57)
13. Aurelio Munoz     (56)
14. Dzintra Janavs    (54)
15. Fumiko Wasserman     (50)

Interestingly, several of the judges on this list now enjoy excellent reputations as fair and effective judges. So take this list with a grain of salt.

Finally, consult with your lawyer. The decision to ding your judge is in almost all cases best left to him.