The Myth of the Biased Judge

A few days ago, when writing about some of the things clients should do or bear in mind when working with their divorce or custody attorney, I talked about clients' often erroneous perception that the judge in their case is biased.  I mentioned that, in my experience, few judges suffer from any kind of consistent bias in favor of moms or dads or husbands or wives.  I am also strongly of the view that the overwhelming majority of judges are strictly unbiased in every conceivable respect.

The generally high ethics of our judges was driven home to me today when I received an order from a local Superior Court Judge in which he—on his own motion—decided to recuse himself from a case.  In that case, the mother is seeking to move out of state with the children so that she can attend a four-year university (which we don’t have in Mohave County, Arizona).  Under Arizona law, the father has a right to object to the move and to have the Court determine whether allowing the relocation is in the best interest of the children.  Here, the father did so object (I represent the mother); accordingly, the Court needs to determine whether the mother will be allowed to move out of town with the children.

No one had voiced the slightest concern to this judge, but he simply decided that he should not continue with the case.  I thought that the reasons he gave in his order might help the folks who read this blog understand the lengths to which judges go to be completely impartial, so I have reprinted them below.  Although the Order is a public document, out of respect for the judge, I have not included his name, and have deleted certain other information which might allow identification of the parties:

“The Court set this matter for hearing on the Petition to Prevent Relocation and then questioned itself as to the propriety of hearing this matter. For the past couple of years the Court has witnessed the parent’s interaction with the children on numerous instances, and in most particular, how well the Petitioner has conducted himself with the children, primarily at [certain sports events attended by both the judge and the parents]. In the relocation case, the Court will be called upon to make findings under both A.R.S. §§ 25-403 and 408. The Court has come to the conclusion that it would inevitably have to draw upon its personal observations with the parents of the children, and in particular, that of the Petitioner.

Therefore, in order to avoid the appearance of impropriety, the Court recuses itself in this matter.”

My files are full of orders of this kind, where a judge recuses himself because when he was a private attorney he represented the parents of one of the parties, or because the judge attends the same church as a party, or because the judge has some distant social connection with the parties, and so forth.  I once had a judge recuse himself because an expert witness—not one of the parties but simply one of the witnesses—was someone with whom the judge sometimes plays golf. 

I’m sure that there are biased trial court judges out there somewhere.  But, it has been a long time since I have tried a case in front of one. Most people who think they see evidence of bias on the part of a judge do so from their own biased perspective, or because they don't understand the law that the judge must apply to their case.

Working with Your Divorce/Custody Attorney: Part Three

Based on reader traffic, it seems that my previous posts on how to work effectively with your divorce/custody attorney have been popular.  Accordingly, and because there is always more to learn in this area, here are a few more tips that I hope some of you find helpful.

1.  Write down a list of your questions before meeting with or calling the attorney, and then write down the answers.  I can't even begin to count the number of times clients have come into my office with their mind brimming over with questions, only to find that they can only remember a few of them when it comes time to sit down with me in my conference room.  There is something about going in the attorney's office that makes some people's minds go blank, just as there is something about going in the doctor's office that makes people's blood pressure go up.  If you write your questions down, not only are you not going to forget them, you won't have to spend valuable time (for which you are paying a pretty penny!) trying to remember your questions. Rather, you can march quickly through your questions and conclude the meeting quickly and efficiently.

2.  Pay careful attention to the "paperwork" you get from the attorney.  Your attorney has an obligation to send you copies of all the correspondence he receives in your case, as well as copies of everything filed with the court, both on your behalf and on behalf of the other party.  All of this stuff is important and your attorney didn't send it to you just for the purpose of killing more trees.  Rather, it was sent to you for the purpose of keeping you informed of the progress of your case.  You should do your best to read it carefully and understand it.  If there is something you don't understand, then you should call the office and ask for someone there to explain to you what it means.  You should also have a file or folder in which you keep all of these documents so that you can refer back to them later.  Every so often I get calls from clients wanting to know the "status" of their case, when they just received a mailing from my office containing a package of correspondence and pleadings that show them exactly what the "status" is.  When I ask whether they read what I sent them, they often say something like "all that legal stuff?  I just toss that in a drawer."  So, in effect, the client is paying me and my staff for the paperwork that informs them of the "status" of the case, and then is also paying me to talk to them about the same "status" that the documents they have already received have completely explained to them.  That is a waste of the client's money.

3.  Do not communicate with the other party about the substance of the case without planning those communications with your attorney and keeping the attorney informed every step of the way.  My clients often settle their own cases, and I have no problem with that.  In fact, I like it. The problems arise, however, when people go off half cocked and make offers to the other side without talking to the lawyer first. Sometimes the offer comes at a time that does not work well with the overall strategy of the case.  Sometimes what is offered is a bad idea for the client (because it has not been thought through or the client doesn't have the experience to know that some ideas that look good on paper never work out in practice). Sometimes what the client has offered is outright illegal.  If you are going to make an offer to the opposing party yourself, you need to talk it over with your lawyer before you do so to make sure that it is a good idea and is something that can be done, and then you need to keep your lawyer in the loop through the whole process so that you can get advice AND so that the lawyer doesn't take a position or do something in the case that works at cross purposes to what you are doing.  GENERALLY, negotiations should take place between the two attorneys, or--if the other party is not represented--between your attorney and the other party.  Sometimes, as described above, it is all right for the parties to do these things directly, but you should be sure to keep your attorney involved at every step.  Remember, the attorney does this for a living and has skills, knowledge, and experience in this area that can be very valuable to you.

4.  Do not rely on your "knowledge" of the law and your friends'  "advice" in place of the informed legal advice of your attorney.  There are tons of things that "everybody knows" about the law pertaining to divorce and custody. Most of them are wrong. Dozens of my clients have shot themselves in the foot by disregarding my advice and doing what they thought they were entitled to do or should do based on their own supposed knowledge of the law or the advice of well-meaning friends.  The law is complex, varies from state to state, and changes constantly.  There is a reason your attorney had to obtain a four year degree from an accredited college or university, then complete a three year course of instruction at law school (long enough to get a doctorate in many places), and then pass a rigorous bar examination in each state in which he practices.  What you and your friends "know" about the law may be what the law was ten or twenty years ago, may be the law in another state or states, or may be a distorted or over-simplified version of a subtle rule that doesn't work the way you think it works, or may just be flat out wrong.  In some cases, relying this knowledge can be so wrong as to land you in jail or cost you hundreds of thousands of dollars.  

5.  Do not believe what you hear on the "street" about your judge.  Hardly a month goes by without my getting a call from one of my clients asking me if we need to see about getting a particular judge taken off of our case because the client heard that this judge "always favors the father" or "leans toward the wife all the time."  More than once, I have heard reports of contradictory rumors about the same judge:  one client hears that "Judge Jones" leans toward men and another hearing that "Judge Jones" is biased toward women.  Such rumors are almost always untrue.  Usually, they are based on one person's experience with that judge in one case, a case which the speaker generally lost (and, very often, deserved to lose) on some issue that was important to him or her.  Human nature being what it is, the speaker cannot bring himself to believe that he lost his custody case because he was not the better parent; accordingly, it must be because the judge was biased.  Naturally, the speaker will back up his position by saying things like "you could just tell from the questions the judge was biased."  Well, I have had people bring me these cases to see if there is grounds for an appeal, and I have read the transcripts of some of these hearings, and what the client perceived as bias was simply reasonable questions that any judge would ask under the circumstances.  They just felt like the judge was against the client because they were hard questions.  In fact, often these questions brought out the reason the client deserved to lose the case.  If you think your judge may be biased, ask your attorney.  The attorney's experience with that judge typically extends far beyond a single case, and may extend to dozens of cases with that judge.  I will tell you categorically that none of the judges before whom I regularly try these cases has ever shown the slightest hint of gender bias.  I'm sure that there are some out there who do, but I have yet to encounter one.

Family law judges make hard decisions in a hard and ambiguous world.  These decisions, and the questions and procedures that Judges use in order to get to those decisions, will often feel like bias to a party or to someone with an interest in the case.  Because of their own inherent bias, and because they don't have the training to evaluate the performance of a judge, the opinion of a lay person on the bias or competence of a judge is generally next to useless.  This is absolutely a subject on which you should rely on the advice of an attorney who regularly practices before the judge in question.