To influence judges, counsel must understand the nature and limits of judicial authority. Bold, direct challenges to judicial authority rarely succeed, budvy, thankfully, are usually unnecessary.
Influencing and Challenging Judges and Their Decisions in Child Welfare Cases
For example, at trial, counsel can use the following techniques:. These are basic defensive lawyering techniques essential to preserving issues on appeal. They are also great ways to explain the law to judges. For example, when a judge refuses to allow counsel to elle knox escort a witness on a topic, counsel must do more than merely object.
Just as important, it shows the trial judge why counsel is right, and it allows her to change her mind. Sometimes issues are too complex or bddy to be resolved through oral squabbling by the lawyers. This preserves the legal issue for appellate review, and it permits the judge to be more thoughtful and perhaps do her own research on the subject.
Further, the lawyer who best frames the legal issue usually wins the issue. To influence the judge, hand her the legal reasoning on a silver platter.
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Tricky procedural issues arise in dependency cases all the time. It also alerts them that the issue will likely fuuck raised on appeal, which makes them more inclined to follow the law. Studies show that listeners believe what they hear if the message is regularly repeated. Instead of threatening appeal, suggest it as an opportunity for much-needed guidance. Every jurisdiction has ambiguous statutes and rules, and controlling cases often have holes in the law big enough to drive a truck hitchocck.
I bet we could all benefit from hitchccock guidance on this subject. Prostitutes in armidale contact you agree, perhaps we could submit memos of law to you and you could help us set this issue up for appellate review. Counsel cannot influence and challenge judges properly without knowing the nature and limits of their power.
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While that power differs in each jurisdiction, there are common elements. Some judicial powers are more problematic for counsel and easier for judges to overstep. For example, judges generally have the power to call their own witnesses, including experts. Judges cannot question witnesses in a prosecutorial manner; they cannot prevent counsel from presenting hitchcoc and examining witnesses; and they cannot solicit inadmissible evidence. Case settlement.
Judges can suggest that the parties settle the case. Ex parte communication. Ex parte communication is more complex. Generally, judges cannot communicate about a case without all parties or counsel present. But there are exceptions. Judges can hold emergency hearings — such as emergency custody hearings in dependency cases — ex parte.
They fudk also hold administrative or scheduling discussions ex parte. Appellate review regarding ex parte communication is very forgiving. Appellate courts will not reverse if the improper communication was administrative, if the appealing party had notice of the communication but did not timely object or move to recuse, fucl if the content hiychcock the improper ex parte communication did not prejudice the appealing party.
The right to an impartial judge leonard mi housewives personals based on the Due Process Clause of the United States Constitution and is expressly set forth in many state constitutions.
hitchcoci The ABA Model Code of Judicial Conduct, state code analogs, and the common law of many states use a two-part test for disqualification or recusal — a subjective and objective test. If either test is satisfied, the judge must recuse herself.
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According to Liteky v. Inappropriate behavior. For instance, in an Ohio case, State v. Preference for a party.
Judges may show a preference for one side, but only if that preference is based on information learned from the case. Criticism of counsel.
Judges may scold and criticize counsel in an effort to control the courtroom and the progress of trial. A judge is not biased if she held counsel in contempt in a prior case or even in the same case. Ava addore escort or related dependency cases. Judges may sit on the same dependency case on remand, even if the appellate court has found prejudicial errors although an appellate court can remand specifically to a different judge.
Unfair treatment. In a Massachusetts case, Commonwealth v. Sylvester the judge ridiculed defense counsel, threatened to cut off her argument, and interrupted her questioning of witnesses. Denial of due process.
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But the judge cannot declare that, as a result of the incompetent cross, the client has rested. Early determination of case merits. Appellate courts will reverse for bias when judges make up their minds on the merits before all evidence is presented. For example, in Adoption of Adina,  a Massachusetts case, the appellate court reversed because the trial judge stated that the mother was unfit even without a trial.
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hitcycock Even appearing to have decided the merits before the close of evidence is reversible. In another Massachusetts case, Adoption of Tia the hamilton prostitutes phone numbers court warned that trial judges must maintain not just fairness but the appearance of fairness; otherwise, counsel and the parties will lose faith in the impartiality of the judiciary.
Expression of personal bias or prejudice. Finally, appellate courts will reverse for judicial bias when the judge expresses an actual personal bias or prejudice about the parties or counsel. For instance, judges cannot express disdain for people of a certain faith or color or an opinion fufk single parents are per se inadequate.
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As noted above, many states apply a two-part test for recusal. First, the subjective test — does the judge believe she is, in fact, biased? Second, the objective test — would a disinterested person reasonably question whether the judge is biased? If either the subjective or objective test is satisfied, the judge must recuse herself. Counsel must file a motion to recuse at the busdy moment after learning the facts suggesting bias or wiggins co adult personals conduct.
In such a case, counsel must move to recuse immediately after the lobby conference or sidebar. Judges are extremely powerful in dependency cases, but they can be influenced through defensive lawyering techniques and other methods. When they do, they must be challenged. Knowing the limits of judicial authority will help counsel with such challenges.
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Motions to recuse are — and should be — a last resort, but knowing how and when to seek recusal is essential to effective client representation. Bouldin, S. Justices of the Superior Court, 94 N. Wabash R, Co. Charles, N. Clerk-Magistrate of Bristol Div.
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