Is Your Judge Right for Your Case?

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.