One of the best of the many publications that regularly cross my desk is the Journal of Appellate Practice and Process which is published by the William H. Bowen School of Law at the University of Arkansas at Little Rock
In the current issue, Howard Bashman of How Appealing fame has an excellent article on the subject of "Recusal on Appeal: An Advocate's Perspective".
Howard presents a balanced and thoughtful overview of the dilemma of a litigant who believes they have a good reason to question a judge's impartiality or raises a circumstance that might cause the public to reasonably question that impartiality. If you do appellate practice or are an appellate judge, it is worth a read and I recommend it to you highly.
I would like to comment here on one point that Howard made. He writes, "a less than compelling and, and thus unsuccessful, recusal request could cause an appellate judge to harbor resentment toward the party which claimed that the appellate judge was incapable of being fair. After all, judges are only human. And therefore, a recusal request that unsuccessfully challenges a judge's impartiality can serve as a self-fulfilling prophecy."
The use of the word "could" makes this statement irrefutable and it no doubt occurs on occasion but, bearing in mind that I am what Article III Groupie at Underneath Their Robes calls "an icky state judge" and therefore my frame of reference may be different when compared to the deities on the federal bench, my own experience doesn't support Howard's broad statement.
My experience, both personal and as observed with respect to other members of my court, is that when a timely recusal request is made, a judge immediately does a "gut check" to see if they really have such a bias or if a reasonable perception of bias exists and if so, I/they will recuse themselves immediately. There are usually enough judges and cases to go around that switching off isn't a problem.
If the request isn't timely, then a lot of work likely has already gone into the case and although recusal will still occur, the new judge who picks up the case and the rest of the panel will be underwhelmed by the level of professionalism of the lawyer and that never helps your case. Likewise, if the reason for recusal was "less than compelling" (e.g. "You once worked as a prosecutor so you obviously cannot be fair to criminal defendants"), the motion won't likely be granted and you won't have much credibility with any of the judges on the panel. I would not equate the assessment of credibility or professionalism of the lawyer with a "self-fulfilling prophecy" of bias. It is simply another factor along with things like the quality of the brief and thoroughness of research that also bear on the credibility of the advocate with the court.
As I tell every bar group I speak to, the credibility (in this context meaning reputation for professionalism) of the advocate with the court, as exemplified by the quality of the brief and argument and adherence to the rules of court, is the single biggest factor in whether a court accepts or rejects a legal argument.
6 comments:
This reminds me of the old adage, "Don't shoot at the King unless you are sure you can kill him."
I read Bashman's article this afternoon and agree that it is well-reasoned.
On my intermediate appellate court we do not see any recusal requests. A principal reason is that the attorneys do not know who is assigned to their appeal until the decision is released. The only exception is if there is oral argument and when they are in the courtroom they know who is assigned.
Another reason maybe that we readily disqualify ourselves whenever our "gut check" causes acid reflux. Seriously, because there is no lack of cases and 4 panels in our district it is easy to rearrange the calendar to accommodate a judge who does not feel right about sitting on a case. Right now I am on a case that was being screened when a judge felt uneasy.
Appellate judges seem to love to say stuff like this all the time, but they really don't mean it.
First of all, everyone loves to laugh at other lawyers' “bad” advocacy. It is doubtful that they could do better, themselves, but a cruel laugh is what gets many lawyers up in the morning.
Second of all, most judges are not going to decide what “the law” is based on whether a particular litigant is well-mannered and whether he complies with each rule better than his opponent does. (Except for certain big rules which might be substantive in nature, but I don't think you are thinking of those.)
Third, Bashman is laughed by most law clerks, and anyone who takes his platitudes seriously really should not be trusted. See http://plig.schtuff.com/top_notch_appellate_litigator .
Fourth, since you have announced on here that you have already rejected certain legal arguments, it probably is not a good idea for a litigant to make those arguments clearly. Instead, a good litigant will probably trick you into thinking that some other argument is being made, and then send an email to Overlawyered calling you a “judicial activist” when you buy it. As much as it pains judges to admit it, judges are lawyers and, though they claim to be neutral, they are part of the elaborate game, too.
Fifth, Judges love to talk to bar groups about why it is important to follow the rules and such. However, not following all of the rules is often in a client's best interest. In fact, being able to gloss over weak points of law is part of being a good advocate. Everyone, except appellate judges knows this. When you leave the room and stop giving you awards they will admit this. Unless were one of those bozos prosecutors who keeps calling everything “judicial activism” you should know this, too.
Sixth, recusal motions are made for a variety of reasons. Knowing if, when and why to do it is part of good advocacy. In my experience, small minority of judges do any serious preparation for the case more than three weeks before oral argument. Therefore, for most judges (and real lawyers know which judges) it doesn't really anger them too much to have to start preparing a week or so before oral argument. Of course, there are many judges who don't do any preparation before oral argument – usually these are the most preachy of judges who use the largest words and talk about “professionalism” all the time. Everyone knows who they are and laughs at them behind their backs. (I am not saying that you are doing this.)
"Anonymous" clearly doesn't have a clue about effective appellate practice. His prose reflects an approach to the courtroom that goes something like "throw everything at the wall and hope that something sticks."
It's sad really - especially for any client he might have.
First of all, I don't “throw everything at the wall” and secondly, it has worked for me. (However, I also think that when judges say “only make your best arguments” they really mean “please waive arguments that would require me to analyze issues in ways that might require me to think differently.”)
On the other hand, unlike Howard Bashman, I don't call myself an “appellate litigator” even though most of my practice is devoted to representing clients before courts of appeal. My clients seem to appreciate the work I do.
This is very informative. I hope to see more in the near future
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