HELP! I THINK MY JUDGE HATES MY ATTORNEY!

            Should you -- and can you -- ask for a new judge?

            MCR 2.003 is very specific with the fact patterns that will justify recusal, as well as those that do not. There must be something more than a cursory involvement with prior proceedings involving some of the parties or familiarity with an attorney who practices often in the courtroom. Specifically:

MCR 2.003 Disqualification of Judge

…

(C) Grounds.

(1) Disqualification of a judge is warranted for reasons that include, but are not limited to, the following:

(a) The judge is biased or prejudiced for or against a party or attorney.

(b) The judge, based on objective and reasonable perceptions, has either (i) a serious risk of actual bias impacting the due process rights of a party as enunciated in Caperton v Massey, 556 US 868; 129 S Ct 2252; 173 L Ed 2d 1208 (2009), or (ii) has failed to adhere to the appearance of impropriety standard set forth in Canon 2 of the Michigan Code of Judicial Conduct.

(c) The judge has personal knowledge of disputed evidentiary facts concerning the proceeding.

(d) The judge has been consulted or employed as an attorney in the matter in controversy.

(e) The judge was a partner of a party, attorney for a party, or a member of a law firm representing a party within the preceding two years.

(f) The judge knows that he or she, individually or as a fiduciary, or the judge’s spouse, parent, or child wherever residing, or any other member of the judge’s family residing in the judge’s household, has more than a de minimis economic interest in the subject matter in controversy that could be substantially impacted by the proceeding.

(g) The judge or the judge’s spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

(i) is a party to the proceeding, or an officer, director, or trustee of a party;
(ii) is acting as a lawyer in the proceeding;
(iii) is known by the judge to have a more than de minimis interest that could be substantially affected by the proceeding; or
(iv) is to the judge’s knowledge likely to be a material witness in the proceeding.

MCR 2.003(C). There is a 14 day window of opportunity to motion for recusal upon discovering one or more of these grounds.

            "A judge is disqualified when he cannot hear a case impartially .…” Cain v Dep't of Corrections, 451 Mich 470, 494; 548 NW2d 210 (1996). A judge is presumed to be impartial, and the party asserting partiality has the heavy burden of overcoming that presumption. Id. at 497.

            There is a strong presumption against recusal. Theparty moving to have a judge disqualified on basis of bias, must overcome heavy presumption of judicial impartiality. Schellenberg v Rochester Lodge No 2225 of Benevolent & Protective Order of Elks, 228 Mich App 20, 577 NW2d 163 (1998). This is a “heavy burden,” In re Hamlet(After Remand), 225 Mich App 505, 571 NW2d 750 (1997), and requires proof of something more than cursory allegations, an attorney’s mere belief or fear of bias, and a tenuous nexus between the judge and the parties, their attorneys, pending appeals, or the subject matter of the litigation, Olson v Olson, 256 Mich App 619, 671 NW2d 64 (2003).

            For example, in Coble v Green, 271 Mich App 382, 722 NW2d 898 (2006), the judge did not recuse himself, and the Court of Appeals confirmed recusal was unnecessary, even though (1) the moving party practiced often before the Ingham County Circuit Court bench, (2) all of     the other judges of the bench recused themselves and (3) the moving party had a pending judicial tenure complaint against the judge. As the Court of Appeals aptly noted, knowing local counsel is not a basis for recusal, nor having a pending adverse complaint from a party, nor being the only judge of the bench who declines to recuse sua sponte. Id.; see also, Ireland v Smith, 214 Mich App 235, 249; 542 NW2d 344 (1995), mod on other grounds 451 Mich 457 (1996) (JTC complaint not a basis for recusal); and Reno v Gale, 165 Mich App 86, 90; 418 NW2d 434 (1987) (knowing local counsel not a basis for recusal).

            As another example, in FMB–First Nat’l Bank v Bailey, 232 Mich App 711, 591 NW2d 676 (1998), the judge declined recusal, and the Court of Appeals confirmed recusal was unnecessary, even though the trial judge was familiar with the parties and their proceeding. In that case, the judge served as arbitrator – having more than a procedural involvement, as here, with the case – and the Court of Appeals upheld the presumption that the judge would remain impartial. In order to upset this presumption, the moving party must show not that the judge had prior involvement but that “the judge’s involvement causes actual personal bias and prejudice” and that the involvement is” both personal and extrajudicial.” Id. In other words, simply presiding over prior proceedings is not a basis for recusal. Id. See also, In re Schmeltzer, 175 Mich App 666, 438 NW2d 866 (1989) (mere fact of presiding over prior proceedings does not justify recusal, even if judge makes initial negative assessment of party).

            To hold otherwise would allow a party to play “judge shopping” and delay resolution of the case merely because the judge ruled adversely in a prior case, knows an attorney or party or has been appealed. These, too, are not bases for recusal.  Coble v Green, 271 Mich App 382, 722 NW2d 898 (2006).

All this being said, if a recusal is not your best option (and usually it is not), you may consider retaining an new attorney. There are all kinds of reasons attorneys and judges do not mix -- fear, bad track record, ethics, personality conflict -- and, most of all and often only, you and your attorney do not mix. You are in it for the long haul, so find an attorney you feel good about, inside and outside the courtroom.

"WHO'S YOUR JUDGE?" -- AND WHY THE ANSWER MATTERS

Who's your judge? This may feel like an off-putting question when you first meet with your lawyer, -- but, for many cases, it is a crucial one.

No, it is not because your lawyer, or your spouse’s for that matter, has a special relationship with the judge and can garner a better result. Judges are, ethically speaking, required to remain neutral in a case and cannot discuss the case with either lawyer, you or your spouse, unless on the record.

There is a common myth that the best lawyers are in the “good ol boys,” or “good ol girls,” club, and that lawyers and judges talk about or decide cases over golf and fundraiser dinners. This is only a myth. Most judges prefer to keep their jobs, and such activity would land them before the ethics board.

Lawyers do ask about what judge is presiding because the judge assigned to your case will dictate many of the things that occur during your case. Granted, the law is the same in your state no manner the judge that’s assigned. But how that law is applied will vary significantly from county to county and judge to judge.

The judge that is assigned to your specific case can affect:

Court Protocol- Some judges requires your attendance at every court hearing, even the simplest of meetings in chambers to select a trial date (a meeting, unfortunately, that you will not see, as most parties sit in the hallway or in the courtroom while the attorneys meet in the office).

Some will allow you to participate by phone, or even email. Others only require the attorney to meet.

Some judges require written motions or petitions for every issue, while others will be available for a short conference call to troubleshoot issues. Some judges limit the number and type of questions each party can ask the other in that formalized process of investigation called discovery, while others allow for a large number of questions that are even minimally relevant.

In other words, how your judge runs his or her courtroom will determine a great deal of the amount and type of work involved in your case and, ultimately, the time and money you spend on it.

Timeline- Similarly, some judges will stick to strict deadlines for your case, trial or settlement, whereas others will allow you several adjournments of dates to explore reconciliation.

Most will require mediation, but how much they emphasize the importance of mediation and nudge you toward settlement at mediation is up to the judge. Some judges send notices that the case is expected to settle, absent unusual circumstances, and some even warn of sanctions if one spouse stonewalls at mediation.

Others view mediation as one step closer to trial but are ready and willing to try your case.  Therefore, the judge that’s assigned to your case will dictate whether and how soon you end up with a trial, with a settled case or with a reconciled case.

Bias- The most common reason for asking this question, however, is bias.

Whether judges will admit it or not, they approach cases with a certain set of assumptions. For custody cases, this could mean, and usually does mean, assumptions about what parenting or visitation schedules work best for children.

It is true that the number of fathers receiving custody awards is on the rise. But statistics are still unsettling. According to the U.S. Census Bureau, as recently as two years ago, only one in six custodial parents of divorced or separated families were fathers. That is a woeful 17.8% of the estimated 13.7 million parents who have custody of children under the age of 21 while the other parent lives elsewhere.

The percentage of custodial fathers has increased only slightly over the last decade. This occurs despite record numbers of stay-at-home fathers and working mothers. Fathers still receive fewer custody awards based on similar fact patterns in state courts, and there is no apparent change on the horizon for alimony payments, for how long a wife should have to reintegrate into the work force and so forth.

So, the next time a lawyer asks you what judge you have, answer and listen carefully. You will learn a lot about what’s to come in your case, how long it may take, when and how you will go to court and what predispositions you are up against.