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.

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.