Oof. I hate this question, mostly because there is so little I can do about it either way. But – wait – let’s rewind.
I get a lot of questions about family law and almost all are good ones, because it’s not like the legal system (including but not limited to family law) is not necessarily intuitive to navigate. Regardless, though, there are many consequences for being unfamiliar with the legal processes that you’re trying to navigate, so it’s in your best interest to take as much time as possible to familiarize yourself with it as much as possible before it’s too late.
I don’t mean to sound melodramatic but after the ink is dry on your final decree of divorce, it’s too late to start advocating for yourself, you know? The more you know, the better. The more you know sooner, well, that’s even better. At every stage of the process, whether we’re talking about divorce or child custody and visitation, you’re going to be better served, and better able to advocate for yourself, the more you know. And it may sound obvious but, as Socrates said, you don’t know what you don’t know. Right?
There’s no shame in that. (That’s not Socrates talking anymore; that’s me. Besides, he was kind of a pain.) There really should be no shame in asking any questions at any point. Including this one.
Question: I went to court the other day and I was trying to represent myself. But I quickly became uncomfortable because it looked like my husband’s attorney was good friends with the judge. Going forward, can I ask for a different judge – or move the case to a different court?
This is a hard question to answer and one that potentially doesn’t have a satisfactory answer. One thing that I know for certain is that the family law community is relatively small. Though I hear new names regularly, I also hear the same ones over and over again. Over the years, many of us – within the same firm and outside of our firms – have formed friendships. Sometimes, our friends are elevated to positions of power and become judges. Sometimes, even judges make friends. Shock, I know.
It doesn’t necessarily mean that we’re friendly outside of the courtroom, but, of course, sometimes it does. Just like everyone else, we make friends at work.
Does that cross a line? Maybe. In general, I find that when judges recuse themselves it is because they are too involved in the case – not too friendly with the attorneys on either side. I seriously doubt that a judge would recuse himself (or herself) from hearing any case just because a lawyer with whom he (or she) was friendly was on the other side.
Judges recuse themselves if they have, for example, business interests tied up in the subject matter at hand, or if they know the parties involved intimately. Once, when a local attorney was getting a divorce from a well known member of our local community, the whole circuit court recused itself – but that wasn’t because of the attorneys they hired, it was because of the people involved in the case themselves.
I think a judge would be likely to say that he (or she) is still impartial, even if they’re friendly with an attorney on one (or both) sides. In many cases, that may be true. Of course, I did not witness the case in question here, or see the attorney or the judge’s behavior. I am also not surprised that they know each other or happen to be friendly with each other.
Have I been in cases where I felt that their friendliness crossed a line? Yes. I’ve heard judges say things to compare other lawyers to their friend lawyers, too, and I think it is wildly inappropriate. Does it mean that the result won’t be fair? It’s hard to say.
As far as venue and jurisdiction is concerned, too, I think you’ll have a hard time moving the case – but if you want to discuss reasons for moving it (beyond just the fact that you’re worried about the relationship between the judge and the attorney – that won’t get you there), you should talk to a lawyer.
What’s the best remedy? In my opinion, the best – and only – real remedy is to have an attorney on your side, backing you up. Ideally, your attorney will know the judge, too, but your attorney can also serve a whistleblowing function in the event that the level of friendliness rises towards collusion or something else inappropriate.
It’s not a perfect system. There is no doubt about that. And, honestly, I’m not sure if you’d find a lawyer or a judge or a Guardian ad litem or anyone else who would argue that it is. Some cases are more inherently inequitable than others and, in some instances, I do believe that relationships between judges and attorneys are a problem. You’re also probably not all that likely to get away from it – so you’ll probably be best served by having an attorney, too.
It’s a crappy situation to be in, for sure. I don’t think it automatically means that there is a problem but, similarly, I don’t think that it means there is NOT a problem, either. Even if you don’t want to hire an attorney – or you lack the resources to do so – that doesn’t mean you can’t talk to an attorney to get a sense of their read of the situation or even get a copy of the transcript from your hearing printed so that the attorney can review, in detail, what was said during the hearing that was so concerning.
It’s a tough situation and without a great answer. For more information about what to expect in a divorce or child custody case in Virginia, call our office at 757-425-5200 or download of one of our four popular titles.