I tell you what the judge said privately to me.
You are offended.
You are upset.

You are outraged.

Here you are, ready to start your medical malpractice trial, thinking you have a great case and the trial judge tells me that you don't really have a good case. That's infuriating. That's crazy. 

The more you think about it, the more upset you get.
Your judge is supposed to be impartial.
He's not supposed to give an opinion about who he favors or who he believes should win.

"How dare he tell you that I don't have a good case!" you scream at your attorney.
You get the idea that you can ask for a new judge.
You don't want a judge who is biased to supervise and control what happens during your trial.

You demand that I ask for a new trial judge.
Can I do that all because the judge told me in private that he didn't think you had a good case?

The answer is no.
That's not sufficient to ask the judge to back away from your trial and assign a new judge.
Let me tell you why...

Before we start your trial, the judge who is assigned to try your case will want to meet with the attorneys.
He'll want to know what your case is about.
He'll want to know if there's a chance your case can be settled before starting your trial.

If there's a chance your case could be settled and both sides are willing to negotiate, the judge may try to talk to each attorney privately. There's a strategy to this. The judge will ask each attorney whether they think the case can be settled. He'll ask each lawyer for their theory of the case and then, after meeting with each, with likely talk to each one individually again. 

The purpose is to start putting pressure on each attorney and their clients to understand what will likely happen if the case goes to trial and a jury is asked to decide the issues in your case.

The judge will typically tell the me (the plaintiff's lawyer) that there are significant weaknesses in your case. He might even go so far as to say that there's no way you can win this case. Regardless of whether he believes that to be true, it's a common strategy used to put pressure on your attorney and you.

Likewise, the judge will also apply the same pressure to the defense attorney.
He will likely tell him that if they go to a verdict, a jury is probably going to hit them for a huge verdict because their theory of the case stinks. If the judge is respected by the insurance company, those words and those suggestions carry a lot of weight.

The goal is to try to get both sides to recognize there are significant risks by going to trial and taking a verdict.

When the defense evaluates whether to negotiate and settle your case, they do it from the viewpoint of seeing whether there's a chance a jury will come back with a very large verdict against them. If they settle now for a known quantity, then they are managing the risk of being responsible to pay more.

At the same time, you have to evaluate the risk of losing your case and getting nothing. Even with a great case and great experts who support your case, there's always the possibility that a  jury could find your doctor did nothing wrong and you walk away with absolutely nothing.

When the judge has these settlement conversations with the attorneys, he may come right out and say "Your client has a terrible case." That doesn't mean the judge is biased. It doesn't mean the judge will influence how the jury evaluates your case. Nor does it mean that his opinion will have any impact on what the jury ultimately does at trial.

Instead, it's an attempt for the judge to put pressure on each lawyer to recognize that there are no guarantees when going to trial. Either side could win. Either side could lose. You just don't know when you leave it up to a jury to decide.

Let's get back to the question I raised in this article...

Can I ask for a new trial judge to handle your trial if he tells me that he doesn't think you have good case?
The answer is no. The judge hasn't seen any evidence yet. He hasn't seen the exhibits. He hasn't heard from any witnesses yet. Besides, the judge doesn't vote during jury deliberations. 

The judge doesn't tell the jury which way they should vote either. Nor does he tell them who he thinks should win this trial. Instead, the judge controls what witnesses will testify, what evidence the jury will see and hear. The judge controls when court starts and when we break for lunch. The judge decides what legal instructions the jury will hear and also what specific questions they must answer in order to reach their verdict.

To learn more about whether you can ask for a new judge in this scenario, I invite you to watch the video below...

Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer