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"Judge, I Ask You to Recuse Yourself From This Trial!" I Say Respectfully

Will he do it?
Will he ask why?
Does he have to remove himself from our trial simply because I asked him to?

The answers are maybe, yes and maybe.

Let me explain.
Let's say you sued your doctor.
For medical malpractice.

You claim your physician was careless.
You claim his wrongdoing caused you injury.
You also claim your injuries are permanent.

A board certified medical expert confirms you have a valid case.
That allows your attorney to start a lawsuit on your behalf.
The doctor you sued disputes every one of your claims.

He claims that he did nothing wrong.
"Why are you suing me?" he argues.
Then, he claims that if he did something wrong, so did you.

Then, he also says that if he did something wrong, whatever he did, did not cause you injury.
Then, to make matters even worse, he argues that your injuries are not that bad anyway.
That gets your blood boiling.

Two years of litigation finally gets you to trial.
The opposing attorneys pick a jury of your peers.
Your lawyer has spent months preparing for your trial.

He has his medical experts lined up.
He's spent so much time, effort, energy and resources to prosecute your case.
After jury selection, a trial judge is assigned by the trial assignment judge.

Your lawyer keeps his thoughts about this judge to himself.
You know nothing about this judge or his history of tending to favor the defense in medical malpractice cases.
You know nothing about how cranky or combative this judge is during trial.

You quickly learn about these offensive traits during preliminary discussions immediately before the judge brings the jury in.
The judge launches a harsh offensive against your attorney for some minor transgression.
When the jury is brought in and opening arguments start, you get a sense of a problem.

The judge interrupts your lawyer repeatedly for not keeping his opening arguments on track.
Your lawyer calls the doctor you sued as his first witness.
Without the defense lawyer objecting, the judge confronts your attorney aggressively to question whether he notified the defense that he'd be using certain certified medical records at trial.

Your attorney is now constantly on the defensive.
Trying to explain to the judge what he's doing and why.
It looks and feels like you're already behind the 8-ball.

Whenever the defense lawyer makes an objection, the judge always seems to agree with the defense lawyer.
"Judge! What's wrong with my question?" your lawyer asks simply.
"I'm not here to help you ask your questions," the judge yells at your attorney. "Ask a proper question and the witness will be allowed to answer it," he responds.

You feel depressed watching these negative interactions with the judge.
You feel the jury must think the judge doesn't believe any of your claims.
"Judge, I offer these medical records into evidence," your lawyer says.

"Objection Judge," the defense lawyer shouts out.
"Objection sustained," the judge says, meaning that those records will not be admitted into evidence.
Now your attorney has a proof problem.

He needs to get those records into evidence in order to have different experts testify.
Your lawyer knows that the judge is wrong and is trying to make a record of all the legal mistakes the judge is making while still trying to be respectful.
He's having a very difficult time.

You're frustrated because you see the judge appears to be against your lawyer and your case.
From the very beginning.
You get the sense that this is clearly not a level playing field.

During testimony your lawyer reaches his tipping point.
He gets fed up.
He starts arguing with the judge.

In front of the jury.
Heated argument.
He reaches the brink.

You can see the judge losing his cool.
The judge is getting red in the face.
He's shouting.

He's yelling at your lawyer.
Your attorney screams out "Judge! I want you to recuse yourself from this trial! It's obvious for everyone to see that you are biased in this case in favor of the defense."
The judge is speechless.

For a moment, there's total silence in the courtroom.
The judge didn't see that coming.
He didn't expect that request.

Your lawyer knew it was coming, it was just a matter of when.
If the judge grants your lawyer his request, that means you'll have to start your trial all over again, with a new jury.
That means even more of a delay.

That means more frustration and not knowing what will happen.

But what if the judge doesn't grant your attorney's request to remove himself from your trial?
Your trial will go on.
The jury will be unable to remove from their minds what they've just witnessed.

Could it harm your case?
Certainly.
Could it harm your lawyers' credibility?

Indeed it could.

If it becomes obvious that the judge is favoring one side, an attorney has an obligation to speak up and voice his concerns.
If those concerns are valid, the attorney has an obligation to request a new judge preside over the case so that there's no appearance of impropriety, such as favoring one side.
Where it's apparent to everyone in the courtroom, the judge should remove himself from the trial.

However, doing so may create a stigma attached to the judge.
It may be a sign of weakness.
The judge may think he's being fair but stern.

Will he do it? Maybe.
Will he ask why? Definitely.
Does he have to recuse himself simply because I ask? No unless it's so obvious to everyone in the case.

To learn more, I invite you to watch the quick video below...


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer