Vol. 43, No. 5
Point/Counterpoint: Striking a Judge From a Case
(Left Column/Point) Benching the Judge: A Striking Idea
by Stuart J. Jorgensen
Point/Counterpoint articles provide an open forum for the expression of ideas and address issues that are substantially related to the law, to the practice of law, or to lawyers (not matters of general interest). Any CBA member wishing to submit a Point/Counterpoint article should work with another CBA member to provide a companion article that argues for a significantly different conclusion. For further information and writing guidelines, to discuss topics in advance, or to get help finding someone to write an opposing viewpoint, contact Point/Counterpoint Coordinating Editor Fred Burtzos at firstname.lastname@example.org.
Stuart S. Jorgensen is the managing trial attorney of an in-house insurance defense firm and the proud owner of the Golden Retriever who helped write this article—email@example.com. The views and opinions expressed may be those of the author, but do not necessarily reflect the views or opinions of State Farm or of its officers, employees, agents, subsidiaries, or affiliates.
When this opportunity arose to write an article on the topic of striking a judge from a case, I decided to employ a similar method I often use when I prepare for trial: I reached out to my non-attorney friends to fetch some ideas. This time, though, it was my 12-year-old golden retriever, Bailey, who gave me something to chew on. To understand her point of view, you have to realize that she is just about the sweetest thing that has ever walked our green Earth. I’ve never heard her say an unkind word about anyone, except squirrels. Over the years, we have shared thousands of miles together along trails and paths. Ever since she was young, I have always been her protector, because she is so good-natured and naïve against the potential hazards of traffic, skunks, vermin, coyotes, and other predators. She greets all with fellowship and goodwill.
But there is this one dog—I’ll call him Dr. Jekyll—who turns into a growling, barking, angry Mr. Hyde every time we encounter him on the trail. He’s a big, powerful dog with visceral disdain for Bailey, and could do her great harm if I wasn’t there to protect her. We’ve tried different socializing and civility techniques with these two, but never with success. We live in the same neighborhood and inevitably encounter each other along the path from time to time. Now when I see Dr. Jekyll coming, Bailey and I simply step aside to give wide berth and let the dog and my neighbor pass without engaging.
Isn’t this the way with people we encounter along the litigation trail? We try to protect people in a civil manner, but every once in a while two people will just not be able to connect for some inexplicable reason.
Now don’t get me wrong—I like judges. I’m not trying to nip at their robes. My first paid job was mowing a judge’s yard and clearing the stuff occasionally discarded there by his disgruntled repeat customers. I married a judge’s daughter, in a wedding officiated by a judge. Of course, I got sworn in by a judge. Three of my coworkers have become judges. You might say that some of my best friends are judges.
I’m like Bailey in that I’d like to think that every professional encounter with the bench, bar, and opposing party should be met with comity and good cheer. (For years, I’ve taped three words to my desk drawer: Respect! Professionalism! Collegiality!) Sometimes, though, there is just something primal between a client or an attorney and the bench. We may try various socializing and civility techniques, but in the end, sometimes the wisest choice is simply to step aside and avoid the interaction and ensuing conflict altogether.
My Stints in the Dog House
Over the years, I’ve personally walked more than a thousand clients along the litigation path to their place of relief. Unlike my Point/Counterpoint colleague Hannah Misner, I’ve never seen a "slam-dunk" case, but I can distinctly recall three encounters between a judge and a client that hound me to this day.
There was that first time, when a judge howled at me when I tried a new technique in his courtroom. He called me a "snot-nosed kid" and threatened to hold me in contempt. It wasn’t anything visceral, however. There was a good reason for his disdain. At the time I was a snot-nosed kid, with two months of civil litigation experience, and I was trying out a civil procedure technique I had learned in law school. At least he didn’t throw his rule book at me like he had another lawyer earlier in the week. But that was a long time ago, and we have formed a friendly, casual friendship since then. There’s definitely no need for a peremptory strike here.
Then there was that second time a few years later. I was summoned to a courtroom in a small town for a motion hearing on the constitutional argument I filed. The magistrate ordered me to "come" to the front of the crowded courtroom and "stay" at the foot of his bench while he swatted me with his rolled up words: "We don’t need any high-priced Denver lawyer coming to our little town taking business away from our hard-working local attorneys." (I guess I had all but shed the mystique of my old home town of Witten, South Dakota, population fifty-four). He pointed his outstretched arm to the door and made me sit in the hall until he had cleared all the other business on his docket for the day.
However, by the end of the day, he had granted the relief I sought and we were swapping stories and jokes about life in a small town. He particularly liked this one: "You know you live in a small town when not only do you know everyone else’s name, but you also know their dog’s name!" I can still hear his parting words, "You’re all right, boy! You can practice in my court any day! But I am ordering you to stop by [redacted] to put a little money back into the local economy before you leave!" So I guess I really didn’t need a peremptory judicial strike that time, either.
Enter "Judge Hyde"
The third time, however, was seriously bothersome. A peremptory strike would have protected the integrity of the judicial system. I liked opposing counsel, but he wanted to muzzle me at trial with ten evidentiary and in limine motions on this case. I filed two. We prevailed on eleven of them and received a partial win on the other. However, the judge who issued those rulings had a scheduling conflict and reassigned it to a fellow judge a few days before trial (a good example of how judges have the power to exercise peremptory strikes against attorneys with little or no judicial disruptions). The opposing attorney promptly moved for reconsideration of all the motions.
Hannah is right; some judges are "not entirely predictible" and can turn on you when you least expect it. This one promptly hauled us into a quickly set pre-trial conference to reverse eleven of those rulings just days before trial. Why? It seemed appropriate for me to ask, but the nonverbal response I got from the bench was a prolonged Cheshire Cat smile that sadly didn’t make it onto the tape. The supplemental response, however, was recordable and pithy: "Because it is within my discretion to do so!"
Was the decision within the new judge’s discretion? Yes. Did it completely change the direction of trial? Yes. Would I prevail on appeal? Not based on the record. Could I easily explain to my client through the translator what just happened? Not really. Was it fair? No. Would I want that judge to preside over any other case for me or my clients ever again? No. Was there anything in the current system that could offer legitimate relief except for what Hannah categorizes as "rumors" or "gossip"? No. But the fact is, my client was not there to help the judge stay "spunky," "sharp," "captivated," or "engaged" in his job. She was there to get treated fairly in an unbiased manner in her adopted country; but she didn’t get that treatment. The judge’s nuanced influence at trial cost my client many thousands of dollars, as well as her faith in the fairness of the American judicial system. If a peremptory strike for the bench had been available, I would have exercised it at the hearing and for every case I ever had with that judge before his retirement.
Measuring the Injustice
How often does this realistically happen? Let’s crunch some numbers. Colorado now has 46,696 attorneys in the pack, with 25,577 licensed as active members of the bar.1 The Colorado bench is smaller, with 176 district court judges, 131 county court judges, and 71 magistrates, for a total of 378 jurists.2 In 2012, there were 169,055 civil cases filed in Colorado.3 Given my line of work, my concern is primarily with the 5,014 tort-based filings in 2012.4 These types of cases formed the bulk of 319 civil bench trials and 334 civil jury trials across the state in 2012.5 Given these numbers, the odds are that on a rare occasion a judge and a party (or that party’s attorney) will experience some unexpected, unseen, instinctual dislike for each other.
Hannah suggests that most judges are a special breed, with the ability to remain objective, intellectual, and above the fray. Let’s say she is right. Let’s assign a high level of perfection to the bench—say 95%. Most people would be happy with a score of 95% on a test, a bar exam, or on an election or retention vote. But what if that high level of success was applied to other very important situations? For example, let’s say that when you take a flight, the odds are that 95% of the time your plane will land safely, but 5% of the planes will crash; or that 95% of your checks will clear, but 5% will bounce. Let’s say that 95% of all judges are fair, but 5% are not, or that all judges are fair 95% of the time. Would that be good enough?
When we combine the numbers, this could mean that all but 19 or 20 of the 378 trial jurists in the state are fair, based on the 5% hypothetical. Now let’s state it a bit differently. Let’s say that all 378 of those on the trial bench are all fair 95% of the time. That would mean that the judicial branch may experience "visceral unfairness" on 8,453 civil cases, including 250 tort cases, 17 jury trials, and 16 bench trials. To me, these numbers seem too high, given my very high respect for the bench. So let’s raise the success rate to 99%. Here, there would still be 1,690 civil cases, including 50 tort cases and 3 trials, where an instinctual disdain between the judge and the litigant affects the outcome.
Are these numbers high enough to cause concern? Ask one of those 1,690 "one-percenters" in 2012 who were seeking access to the courts, but instead may have gotten their noses rubbed in it by a "sharp minded," "spunky" Mr. Hyde in a robe. Extend those numbers over a decade or two, and you start running into a fairly large community of tongue-waggers who spread horror stories about the judiciary based on their own primal interaction. Are those acceptable numbers?
What’s Good for the Jury . . .
I agree with Hannah that a peremptory strike should be rare. However, I disagree that the appellate process is adequate. If an appeal is an adequate cure, why do we have four routine peremptory strikes against potential fact-finding jurors, plus one more for the alternate?6 The current judicial system arbitrarily strikes 59% of the potential jurors in the array for no particular reason at all!7 If you believe the appellate process is an adequate buffer against the effects of bias, why not just allow the trial to proceed with the first six jurors who come into the box, eliminate the peremptory strikes, and use the appellate process to cure any mistakes that are blatant enough to show up on the record? There is an inherent recognition that sometimes it is best to let some people pass on by without giving a reason other than a gut feeling. Why force the interaction when you know it will only lead to failure down the line?
In fact, there is an argument to be made that the absence of peremptory strikes against judges, as with jurors, creates an incredibly inefficient waste of limited judicial time and resources. Why force a shotgun wedding between a litigant and the bench when it is destined for failure and appellate divorce before it even starts? A peremptory strike doesn’t put the judge down; it only swaps one case on the docket for another. If the goal of the system is to "stimulate intellectual ambition" and "engagement," then there is nothing to stop these judges from discussing the case behind the scenes to "expand their breadth of knowledge" and deliberate on the possible reasons underlying the peremptory strike to help prevent it from occurring again. Wouldn’t such discussions actually strengthen the bench?
There is another reason peremptory strikes might actually strengthen the bench. By requiring peremptory strikes against jurors, but avoiding it at all costs for judges, the system seeks to establish different rules for the rule makers. If John Rawls and Emanuel Kant could speak, they would say, "If jurors are stricken, then so should judges!" If peremptory strikes on 59% of the potential jurors are good for the system, then it is difficult to believe that preemptory strikes on 1% of the bench would somehow destroy it. Quite frankly, if there was a person on the bench with an abnormal number of peremptory challenges by the parties, then perhaps the court administrator and/or the Commission on Judicial Performance should snoop around.
Sorting Out the Logistics
I agree with Hannah that there should not be a fee for peremptory strikes. Justice should be available for all litigants, no matter what their pedigree, bloodline, or lineage. Perhaps each attorney should have a small number of peremptory strikes in a year, or over a career. Once those challenges are used up, the attorney can use the technique no more. Perhaps there should be a limit and a consequence, as with instant replays in an NFL game. Perhaps there should be a waiver of the right to collect costs leading up to, or arising after, the peremptory strike. Somehow, some way, peremptory strikes should be fenced in or otherwise restrained to make them rare.
Finally, Hannah argues that difficult logistics should make the concept roll over and play dead. Frankly, that argument has no teeth. Judges make attorneys reschedule a half-dozen different busy expert and lay witnesses on the fly because an opposing counsel is long-winded or playing games, or because the court has an unannounced need to take a Tuesday morning off (Hannah mentioned the golf game, not me). If anyone whined about how hard the job was to my old boss, he would snarl, "If it were easy, we would have given the job to someone else!"
The bench already recognizes that by striking a majority of potential triers of fact for unspecified reasons, the fairness and efficiency of the judicial system actually increases. Given the sheer volume of cases before the bench, the odds are that nature will occasionally place a particular litigant and a particular trier of law at odds with each other, resulting in some inexplicable, but palpable friction that may endanger the fairness and efficiency of the system. As with the triers of fact, an unspecified strike against a trier of law from time to time may actually improve the fairness and efficiency for everyone.
1. The figures are valid as of November 30, 2013, based on an inquiry of December 10, 2013, to the administrative assistant of the Supreme Court for Attorney Registration.
2. Colorado Judicial Branch website, www.courts.state.co.us.
3. Colorado Judicial Branch Annual Statistical Report Fiscal Year 2012, Table 16: District Court Civil Filings by Type of Case for FY 2012, www.courts.state.co.us/userfiles/file/Administration/Planning_and_
4. Id. (This includes 522 negligence cases, 1,391 personal injury cases, 2,965 personal injury traffic accident cases, 42 property damage cases, 73 wrongful death cases, and 21 wrongful death traffic accident cases.)
5. Id. at Table 15: Court and Jury Trials for District Court for FY 2012.
6. CRCP 47(h).
7. 10/17=58.8%. (There are four peremptory strikes for each side for deliberating jurors, plus one for each side for the alternate, totaling ten peremptory strikes; this leaves six jurors and one alternate unstricken.)
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