DV Tip of the Week

5 MIN READ

The Judge won't follow the law. What do I do?

Clarify

The most difficult question I encounter when training is how to overcome a judicial officer's refusal to follow the law. Last week, I had three different agencies reach out with the same issue.

The first step is to clarify what is occurring and why. Judges take an oath to follow the law. Before we accuse them of failing to follow the law, we need to be certain WE are correct.

Did the prosecutor clearly lay out the issue? Was proper foundation presented? What EXACTLY did the judge say during their ruling? Get transcripts.

The perceived failure may not be a judicial failure at all. Once you determine the issue is a refusal to follow established law, you can move forward.

Traditional remedy

There are three traditional remedies to a judicial decision that you believe is contrary to the law.

You can ask for a motion to reconsider. This provides an opportunity to educate the bench and to offer a less confrontational way out of the situation.

If that fails, you can seek a writ or an appeal. Get your appellate team (if you have one) on board as soon as possible. What is in the record matters.

You can file a formal judicial complaint. This generally is a step of last resort.

Less traditional responses

Bench guides. Bench guides can provide judges the legal guidance needed to correct their decisions. Make certain the court has a bench guide. No bench guide? Work with your jurisdiction to create one.

Judicial meetings. These might be a monthly/quarterly meeting with prosecutors and defense attorneys. It could also be a less formal discussion from your management team with the court, not discussing a particular case, but identifying a legal issue and clarifying the law. You can discuss the court's position so your office understands it. Avoiding specific case facts avoids the issue of ex party communications.

Bar Association training. Trainings in front of the entire bar help judges learn the law without being approached solely from one party. Judges may feel more comfortable with this type of contact.

Stacking the gallery. Most judges serve as elected officials. If the refusal to follow the law is related to victim rights get members of your local victim rights groups in your gallery. Let them see what is happening.

Replacing the judge. You may find yourself supporting a candidate to run against the sitting judge.

Not the time to go rogue

Confronting the bench about a refusal to follow the law requires tact and precision. It should not occur without the consent and support of your management team. Unless it is an issue that must be addressed immediately on the record, pressing pause is a great tactic.

Want some help in this area? Reach out to me and let's work on some solutions.

Email me: gfineman@dvtrainandconsult.com with any questions.

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