Appellate Insights

In most appeals, the best practice is to deemphasize direct criticism of the trial court judge.  That is more difficult—and perhaps the opposite of what you should do—when arguing that the judge should be disqualified for cause.  How should you approach disqualification issues?

• Have an eye on appellate review at the brainstorming stage.  Time is against you.  Delay in seeking disqualification is itself a reason to deny disqualification.  And an adverse decision can only be reviewed by writ petition filed within 10 days.

• Build a solid record from the start.  Assume that your verified statement of disqualification will be your only opportunity to present evidence and argument.  The trial court has discretion on whether to allow additional filings, evidence, and a hearing.

• Judges are naturally disinclined to say that another judge is “biased.”  Aim for lower hanging fruit:  A judge must be disqualified even if a person “might reasonably entertain a doubt” about the judge’s impartiality—which is far more palatable to a reviewing court than finding the judge is actually biased.

► The practical message:  If you come at the king, you best not miss.  Act quickly to preserve your disqualification argument, be meticulous and intentional in your papers, and cover your appellate bases from the start.