JUDGE ERROR MAKES PREDICTION OF CASE OUTCOME DIFFICULT
Judge error makes predicting outcome of case difficult if not impossible. The usual reasons given are the uncertainty of the evidence available, the believability of the witnesses, the obscurity of the law applicable, the quality of representation, the unknown biases of the fact finder and so on. The cure for this affliction is preparation before the case is initiated or at its very beginning. In Colorado you can’t know what Judge will be assigned to the case before filing, so no useful research can be performed concerning the Judge’s input until after the case is filed and the case assigned to the Judge. However, it is well known that a Judge will lean to dismiss a case if a way can be found. Therefore, in cases where dismissal seems possible, the plaintiff’s lawyer must make every effort to draft the complaint to avoid that painful outcome. That possibility of early dismissal exists in a wide variety of cases where federal preemption is possible, where a defendant cannot be validly served, where an agreement sets another jurisdiction as proper and so on. However this Article wants to focus on the dramatic example of how an uniformed Judge can wreak havoc on a case.
The plain fact, frequently ignored by lawyers and clients is that the personality, character, talent, and attentiveness of the Judge hearing the case can greatly influence the outcome of the case. If the Judge is the fact finder as well as the ruler of the courtroom, these variabilities are greatly magnified.
Please consider this example from a recent case decided by the Colorado Court of Appeals in which the “facts” stated herein are taken from the allegations of the Complaint. {Naturally these facts are the subject of dispute} The action was a business dispute between a very well known author and college professor and a former pupil of his. The two formed a limited liability company (as a joint venture) to exploit the professor’s writings, research and well known persona. After a short time the two men had a total breakdown of trust and confidence which apparently led the professor to withdraw all assets he put in the joint venture and attempt to dissolve the limited liability company. The professor allegedly transferred the assets of the former company to a new company owned and controlled by him. Naturally the young associate objected strenuously to this allegedly high handed and wrongful transfer of assets. The two men could not resolve their differences and the young associate filed suit in a Colorado state court. A single Judge was assigned to the case who piloted the case through its early stages in ways which were largely favorable to the young associate. As the case progressed the Judge worried that his past representation of a client when he was in practice as a lawyer might lead the professor to question his impartiality. The Judge recused himself and another Judge entered the case.
The defendant filed a motion to dismiss the case for lack of jurisdiction on the ground that the Complaint was for copyright infringement which the new Judge granted after a short hearing on the grounds that the Colorado State courts lacked subject matter jurisdiction. The new Judge also awarded defendant a judgment for attorney fees and costs which decision the Judge later reversed on reconsideration.
The young associate appealed and the appellate court reversed all of the second Judge’s orders and remanded the case for proceedings consistent with its Order.
What is the difference in the result – the new Judge and nothing else. The appellate court reversal shows how completely lost the second Judge was on the law.
The story is compelling because it isolates with clarity the sometime paramount role of a trial judge in a court proceeding. Such capriciousness resulting solely from the talent and skill of the Judge is an intolerable variable in an already difficult situation. It is a variable that any client or lawyer ignores at his or her peril. Sadly, the only perfect remedy for such caprice is to avoid court. Every lawyer who has practiced law for any length of time in contested matters knows this sad fact but probably rarely discusses it with a client. Recognition of the important, sometimes distorting, role of the trial judge is imperative. There is no way to predict whether the Judge will favor one side or another, not like one side or the other, be well versed in the law pertinent to the case, pay attention to the evidence in the case and so on. Relying on an appellate court to straighten out the mess is a poor strategy. In many appeals, the appellate court is bound to give due deference to the findings of the trial judge. In only a small percentage of appeals,is the appellate court reviewing the trial court ruling from anew. The reversal rate of a trial judge on appeal is probably about twenty percent. In addition appeals are slow and expensive. Even if the appeal is won, the case goes back to the original Judge who wrongly decided it. That is probably not going to make the trial Judge like the case, the client or the lawyer to a greater degree.
The message is clear – avoid the judicial system when it is not essential. Do not leave important matters in the hands of an appointed magistrate, if arbitration, settlement or mediation are available. A Judge is able to decide as he or she wishes and leave the parties to deal with the result. Mediators don’t decide – a mediator acts to induce the parties to settle. All Judges are not so unlearned as the Judge in the case described above but it is a risk. The risk can be minimized by studying the work of the Judge who is drawn by lot for your case. It is possible in some cases, although not in the one reviewed above, to prepare the Judge to understand the facts and the law early in the case. That is always the best solution. As always a small amount of preparation before litigation or in its very early stages is the best antidote.
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