Moving to recuse a judge is a dangerous game. One of my law school professors likened it to hunting a lion—something that you better not do unless you’re sure that you can kill it. Recklessly moving to recuse judges will swiftly earn a lawyer a reputation for being unprofessional. Even a well-meaning lawyer who loses a recusal motion may be left with an unhappy lion.
Is it even possible to file a recusal motion without suffering some professional consequences? Yes, by keeping the motion and ensuing motion practice highly professional. Here are some suggestions.
- Know Your Audience. A lawyer must identify their judge early in the litigation and evaluate whether any relationships with the lawyers, litigants, or witnesses give rise to a viable motion to recuse. Learning about the judge will help a lawyer anticipate the judge’s range of possible reactions to the request for recusal. Some judges will be receptive to a litigant’s motions to recuse. Other judges, however, will be upset by any challenge to their impartiality. Understanding and appreciating the personality and history of a given judge will assist a lawyer in formulating the best litigation strategy to achieve his client’s objectives.
- Avoid Making It Personal. Almost everyone, including judges, respond to personal attacks defensively. Lodging a personal attack against a judge is a sure way to provoke such a response. Such personal attacks are also entirely unnecessary. This is because both the United States Constitution and Louisiana statutory law directs the judge hearing the recusal motion to employ an objective standard when considering a motion to recuse. See U.S. Const. amend XIV; see also Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009); La. Code of Civ. Proc. art. 151(B). This means that evidence of a judge’s actual bias is not necessary to require recusal. Rather, the court must determine whether, as an objective matter, the average judge in his position is likely to be neutral, or whether there is an unconstitutional potential for bias.
- Don’t Abuse The Process. It is critical to understand the outer bounds of the bases for judicial recusal while recognizing which relationships provide fertile ground to argue for recusal under the objective standard. For example, do not argue that the judge should be recused based on adverse rulings alone. However, you can argue that a lawyer or litigant’s exceptionally large contributions to the presiding judge’s judicial campaign require recusal. Don’t file a motion to recuse if you don’t have the law and the facts on your side. Moreover, a lawyer should be very cautious when arguing that their own actions—and the subsequent response to those actions by the judge—provide a ground for judicial recusal. A lawyer must remain mindful that the delayed filing of a motion to recuse after the matter has been set for trial may be perceived as conduct causing unnecessary delay and as needlessly increasing the cost of litigation. As such, the filing of a motion to recuse for an improper purpose may result in the judge imposing sanctions on the filing lawyer.
- Consider Bringing In Co-Counsel. This applies to both litigating a motion to recuse and following a lawyer’s decision not to seek a judge’s recusal. Counsel of record can bring in outside counsel for the limited purpose of litigating a motion to recuse. Prudent lawyers concerned with souring their relationship with the presiding judge may want to consider letting outside counsel take the lead on requesting recusal. Involving outside counsel in the recusal litigation permits the lawyer who will remain in the matter to distance himself from any taint left by pursuing the issue of recusal. Involving outside counsel may also be useful when the lawyer believes he and the judge do not get along well but decides that the law and the facts do not justify requesting recusal. Under those circumstances, including co-counsel in the litigation may help diffuse any perceived animosity between a lawyer and the judge. Ultimately, a lawyer concerned about their relationship with the presiding judge should consider whether retaining outside or co-counsel may protect their client’s interest in the litigation.
- Communication Is Key. A lawyer should consider requesting a status conference with opposing counsel and the judge to introduce the recusal issue prior to filing a formal motion. The benefit of this is at least twofold. First, this may spare your client the financial burden of litigating the motion to recuse. As a lawyer on the case, you may have a greater appreciation of the interests and individuals involved in the litigation. For this reason, the judge may not immediately realize that a potential ground for recusal exists. Alerting the judge to a potential issue may result in the judge self-recusing and freeing your client of the burden of participating in recusal proceedings. Second, the presiding judge may appreciate the professional courtesy of advance notice. A lawyer may consider suggesting to the judge that the client brought up the issue of recusal and that the lawyer must now respond to the client. Indicating that the client raised the issue of recusal allows a lawyer to simultaneously distance himself from the issue of recusal while also presenting the issue to the judge for consideration prior to requesting recusal.
A lawyer should always take proper care and caution prior to going on a lion hunt. This includes investigating the facts, researching the law, and communicating the possible risks and rewards to the client. A lawyer on a lion hunt should not attack with personal blows and should avoid any conduct that could be perceived as prejudicial to the administration of justice. Finally, a lawyer may consider bringing along a hunting buddy. Under the right circumstances, a lawyer may have a successful hunt. However, in the event of an unsuccessful hunt, a judicious lawyer who conducted himself professionally throughout the recusal litigation should have no fear about appearing in court to again face the lion.
The Lafayette Bar Association originally published this article in the February 2022 issue of The Promulgator. The article is available online here.