Judicial Bias and Ways You Can Combat It

A hearing in your case is on the court’s docket. You’re going to meet the judge and argue your motion, or fight a motion from the other side. But like most of us, judges have implicit biases. She may not like your age or gender or ethnic group. He may not like your tattoo or hairstyle or accent. These things should never matter, but they do. Courts have recognized it. Some judges take courses to combat it. The fact is that judges often make decisions that aren’t fair or legally correct, for no good reason. There can be bias even when a judge is no respecter of persons. For sure, when one or both parties are in court without a lawyer, you can expect to see judicial bias. The judge wants that case off the docket for good.

In a recent guest post on Richard Zorza’s blog, LawHelp Interactive’s Claudia Johnson noticed a hopeful trend where appellate courts had reversed decisions that failed to demonstrate due process for pro se litigants. An appellant arguing on due process grounds usually has the burden of proving it, but these appellate courts appear to have placed the burden of proving due process on the respective trial courts, at least where the appellant was self-represented at trial.

In a New Jersey domestic violence case, the judge entered a final restraining order after denying the defendant a right to cross-examine his former girlfriend, the plaintiff. The man floundered a bit on the judge’s questions, and the court took his reticence as an admission of the plaintiff’s allegations. An appellate court later found that the defendant’s right to be heard had been violated. The court cited an earlier ruling by the state supreme court to express concern for pro se litigants:

Many litigants who come before our courts in domestic violence proceedings are unrepresented by counsel; many are unfamiliar with the courts and with their rights. Sifting through their testimony requires a high degree of patience and care. The pressures of heavy calendars and volatile proceedings may impede the court’s willingness to afford much leeway to a party whose testimony may seem disjointed or irrelevant. But the rights of the parties to a full and fair hearing are paramount.

Paramount. That’s not something your average trial judge wants to hear. All day every day, judges try to clear the docket of cases where self-represented litigants may be slow in arguing the right law or using the right procedures. In this case at least, a New Jersey appellate court cried foul.

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In California, a “commissioner” play-acting as a judge issued a restraining order to stop a woman from posting derogatory online comments about her ex-boyfriend. Despite signs in the courtroom informing parties of the right to a real judge, a California appellate court reversed the decision because the woman hadn’t been asked — and therefore hadn’t agreed — to have the case heard by a commissioner.

The presiding judge on the California appellate court found the use of lower-level judicial officials unconstitutional without the actual consent of all parties. This placed the burden of gaining consent on commissioners, something especially important for self-represented litigants who wouldn’t know to object. In her guest post, Johnson expressed hope that these opinions would remind courts not to rush cases involving pro se litigants:

The willingness of [appellate] courts to reverse trial court decisions should remind judges to be attentive to what the party without a lawyer is asking for and to not go on with “business as usual” mode where moving the cases becomes an objective in and of itself and the implicit bias by the judge or process is not checked. If judicial training on how to manage self-represented litigant cases is not enough, reversal by [appellate] courts might get the attention of judges working in large [self-represented litigant] dockets.

But the thing is, moving cases off the docket is what judges are paid to do. Judges don’t want to hear cases involving self-represented litigants precisely because it takes too much work. Pro se arguments can also be boring and even infuriating to top legal minds. Judges want to talk to law school graduates in their courtrooms. They don’t like having to interpret the sometimes misapplied law and legal terms used by self-represented litigants. To make matters worse, the rules aren’t always clear as to how a judge should look out for the rights of self-represented litigants, or how far they can go to help us without violating the rights of other parties. So they’ll find any excuse to finish off a case where a self-represented litigant is involved. If a judge can find a way to get us off the docket, he or she will get us off the docket.

We as self-represented litigants must understand that we can’t give a judge that opening. Let me make it plain. Any judge worth her salt wants to be working in complex litigation. She wants to decide a corporate securities case or an insurance case, something serious with BigFirm lawyers and millions of dollars at stake. No judge wants to figure out what a pro se litigant means by “summary execution” or “motion to severe” or those many other terms we might use that miss the mark. He doesn’t really care what the legal positions are — there’s usually no bias in that regard — but he does care how much of the court’s time we’ll take.

When your judge discovers there’s no lawyer on your side, he or she hits the bench prepared to find a way to kill your case. And that’s usually not good for you. So you want to go to court armed to fight the judge’s bias. Use legal terms that make sense. In fact, don’t use a term unless you’re sure you know what it means. Plain English is better than misapplied legalese. Prepare a simple, straightforward argument that addresses the relevant legal issues. Take a court reporter. Be respectful but firm with the judge, so he understands that you understand he’s not the last word on anything.

Otherwise, chances are she’s going to be daydreaming about that big, juicy medical malpractice case she’d rather be hearing, one worthy of getting a black robe dry-cleaned, one that doesn’t get the attention it deserves because your puny little case is taking too much time.

The best way to prevent a judge’s bias from killing your case is to anticipate it and prepare to overcome it. Cross your t’s, dot your i’s, and cover all the bases to ensure the hearing doesn’t end with the loss of your case. The judge is just another lawyer in the courtroom. Go to court ready to defeat all the lawyers in the room. Has a judge wrongly and abruptly shut down your case? What could you have done differently? Share in the comments below.

5 thoughts on “Judicial Bias and Ways You Can Combat It”

  1. District 2 in Maui Hawaii, a judge declared that a man who denied, then admitted to at east 6 forgeries and created/submitted an admitted to be FALSEly created “permit,” (FRAUD) and an illegally STAMPED house plan, did NOTHING WRONG!!! And he awarded the lawyer of the forger over $130,000.00 in legal fees to be paid by the VICTIMS of the forgery and FRAUD and illegal permit. And the misconduct in the matter does NOT stop here. I have a 14 or page or document about this matter if you care to examine it in confidentiality. I can send it to you by email attachment if you like.

    1. Good evening. Would like to know what you think about my case in Family Court. I lost custody of my child recently, because my presiding Judge was more in favor of the Department of Social Services. I was not able to fully plead my case, and important evidence was not allowed 9n the record. The plan in the beginning was to return child to parent, but after the appeal agreed with the Judges decision. Now, there was no more talk about returning child to parent. On, record the Judge has made reference to the prosecutor that he agreed with them and that they were together in deciding how they ( meaning The Department of Social Services) should handle my case. For 3 years I’ve fought with them , and no matter what I said. I was lying, according to the Judge, but yet he did not allow me to tell my side of the story. What can I do? Need to act fast.

  2. Hello, I must be a textbook Pro Se “……get this case off my Docket !”

    I’m Pro Se on an Age Discrimination and Egregious Harassment lawsuit. I also have a year’s worth
    of documented evidence. My Pro Se case is at the two year mark.

    I missed my Opposition to Dismiss filing deadline, I did make it late. I filed a 1 page Errata explaining
    “Excusable Neglect, Beyond my Control ” events.

    HOLY MOLY !!I The Judge filed an “Order” characterized by intimidation, insults and imperious directives..

    After 3 weeks of working on a Misconduct Complaint, BINGO ! OF COURSE, HE WANTS ME TO COMPLAIN,
    SO HE CAN BE REPLACED and get my case off his Docket….hence the outrageous Order.

    First, I want revenge and will not file a Complaint. Also, due to the LONG processing time of the Circuit Court, I want to file a Motion to Recuse. However, as I understand it, I can’t use content from
    his “Order” as proof of his Bias/Prejudice. Nor can I assail his Order as proof of his Fraud. Defendent lawyers certainly know what the Judge is doing.
    Aren’t they liable for not reporting the Judge’s “ploy” ??

    Do you have any ideas for me ? I’m open to all advice.

    Many thanks,
    Donna Cattanach

    (Errata: Pacer rejected my PDFs 4 days to fix my files, my laptop was hacked,
    my printer failed to connect to my internet signal. FINAL BLOW ?? I was so upset,
    I totalled my vehicle. I have no funds nor credit to replace it.)

  3. In my case, being so dissatisfied with a long unfulfilling association with what appeared to me as an incompetent or ’employer leaning’ EEOC, I filed a claim with the unemployment bureau first instead of filing a complaint with the agency. During the OBES hearing, the Defendant supported it’s for ‘just cause’ with a clandestine but ‘partial video’ from a coworker who incited an argument to occur between she and I. The video was in that record only. After being denied benefits, I moved on to file suit in Common pleas, although I had previously objected to the video as “hearsay out of context” and “prejudicial” the Appellate Court judge affirmed the ruling in the subsequent appeal and mentioned that “the ‘partial video’ was enough.” In the subsequent complaint dismissed in Common pleas the same Appellate Court judge (did not recuse) and mentioned the video even when the video had not been produced for the record in the lower court’s decision and cited other information outside the justification in the lower court’s ruling. I filed the case in the Supreme court. The SC elected not to take jurisdiction…no other recourse though I argued the Appellate Court was prejudicial. #PROSEELIMINATIONBYANYMEANSNECESSARY.

  4. The judge in my case drug our hearing out over several small hearing over the course of a year. He allowed the defendant’s attorney to improperly serve me 4 times. He threw out the evidence but then adjourned the hearing so they could bring in the person that the evidence was based on. I also had a video that the Defendant produced thrown out as hearsay as they didn’t have any witness that was present when the video was shot. Well during my own testimony I tried to submit evidence of what I personally saw in the background during a FaceTime video with my child. He told me it was inadmissible and when I asked why he literally yelled at me “because I said so, I didn’t let them use their video and I’m not letting you use this”. Let me say that this was said when we were on a VIDEO zoom hearing! If his legal finding is correct and that something seen on a video conference is inadmissible wouldn’t that make our entire case not legal as it was on a video conference? I raised our son for 16 1/2 years while he only had less than two months a year visitations for 10 years and somehow I’m now a bad mother. Although I have an accounting degree, work as a pastime substitute teacher, and am a stay at home mom the rest of the time. Heck my fiancé is highly regarded and even has his own personal keys to the Michigan governor’s office! The judge used one incident of domestic violence that happened years ago and which I filed for and obtained a PPO against the person and he never set foot in my home again. Also I have a severely autistic child that is on a 6-7 year old level that had gotten in trouble for exposing himself in our front yard. That was dropped and the boy was grounded and had no other episodes. The last is that our 19 year old son had some behavioral problems with his girlfriend but had never had any issues with his brother and had always lived with him. Now the 17 1/2 year old is around strangers and wants to come home but the judge is refusing. The boy’s therapist doesn’t want him at his fathers home. I filed for change of custody and the clerks office put our case in front of a referee instead of the judge. When the judge found out he accused me of shopping around and said it was only being seen in front of him and his office would set a new date. As of now I still haven’t heard from their office. I did file a new motion because the boys father is trying to not send the boy home for Thanksgiving. It’s ridiculous. I’ve had my name repeatedly drug through the mud for years. The father makes over $15,000 a month and has filed every year for 8-10 years using the courts to abuse me because I can’t afford an attorney. I’m in that middle ground. Can’t get a free attorney and can’t afford one. I’m a 100% disabled veteran.

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