Can I Get a New Judge?

By: Mark Javier

 

The Circuit Court of Cook County has approximately four hundred judges serving in the judiciary. Litigants appearing in courts throughout the county are at the mercy of these judges who make critical decisions that drastically affect the lives of those involved in the case. These cases range from criminal charges to mortgage foreclosure, from divorces to car accidents, and everything in between. Lawyers and their clients must take into account the individual abilities of each particular judge whom they appear before when crafting their approaches to the case. Sometimes, litigants find themselves with a judge who may not have the same legal knowledge and ability as others, or who has a mean-spirited temperament, or who may be known to favor a particular side.

When parties face these situations, they need to know whether there is an opportunity to get a different judge to preside over the case.

Illinois law allows parties to substitute their current judge for three reasons: 1.) substitution for involvement of judge, 2.) substitution as of right and 3.) substitution for cause. The rules regarding substitution are codified in 735 ILCS 5/2-1001 and provide the procedure to remove a judge from the case. If a judge is a party to the litigation or has an interest in the outcome of the matter, the judge may have a motivation to rule a certain way. A judge may also be influenced if he is related to an attorney in the case or has, himself, previously been an attorney in the case. This may bias the judge and sway his decision making. No formal application to remove the judge is needed in these scenarios and many times a judge will recuse himself on his own accord.

If none of the above situations is present, and a party believes that the judge currently presiding over the case is prone to ruling adversely for their side, or has a history of ruling a certain way regarding legal issues, the judge may be removed as a matter of right. No cause is required and the party making the motion need not provide evidence of bias or prejudice. Each side has one opportunity to exercise this right.

However, to substitute a judge as of right must be done under a strict procedure. The motion shall be granted if it is presented before trial or hearing begins and before the judge to whom it is presented has ruled on any substantial issue in the case, or if it is presented by consent of the parties. Therefore, a party cannot substitute a judge simply because she does not agree with a ruling on a legal issue in the case.

When the case has proceeded for some time, and a judge has made substantive rulings in the case, a party may still move for a substitution of judge as a matter of cause. Unlike the substitution as of right, which is only granted once to each party, a substitution for cause may be made as many times as applicable. Every application for substitution of judge for cause shall be made by petition, setting forth the specific cause for substitution and requesting a substitution of judge. The petition shall be verified by the affidavit of the applicant. Another difference between a substitution as of right and substitution for cause is that a substitution for cause requires a party to provide evidence as to why the judge is unsuitable to preside over the case. Upon the filing of a petition for substitution of judge for cause, a hearing to determine whether the cause exists shall be conducted as soon as possible by a judge other than the judge named in the petition. The judge named in the petition need not testify but may submit an affidavit if the judge wishes. If the petition is allowed, the case shall be assigned to a judge not named in the petition. If the petition is denied, the case shall be assigned back to the judge named in the petition.

In practice, substitutions of judge are seldom utilized because of the negative connotations it signals to the legal bar in the district and county where the litigation is pending. Many times a litigant who files a substitution of judge may be assigned a judge who holds the same legal viewpoints as the original judge or who may be even more strict regarding other legal matters, such as sentencing. Exercising the right to substitute judges must be made under the experienced advice of a knowledgeable attorney. However, for those litigants who appear before a judge whom they believe will give them little or no chance at prevailing in the case, a substitution of judge may be a hopeful strategy to put themselves in a better position for success.