Should I Stay or Should I Go?

Indiana has a system of retention votes for judges on the Court of Appeals.  It’s not a vote for a candidate, though. It’s more like a referendum on whether that judge should stay put — like a parliamentary “no confidence” vote.  Usually, all the judges retain their positions with varying levels of confidence.Weighing your options...

I often get asked after an election, “Should I have voted to retain that judge?  I didn’t know anything about any of them!”  This can lead to a voting-ignorance guilt trip.  But NOW is the time to nip that suffrage suffering in the bud.  Click here to learn more about the judicial districts that the judges hail from and click here to learn more about the judges up for retention votes this year.

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Oh, the Judges, They are a-Changin’

With apologies to Bob Dylan, there are times when folks involved in a lawsuit want a different judge.  This can be for a perceived conflict of interest, such as “I think he’s my ex-wife’s neighbor’s barber’s second cousin, so I don’t trust him.” Or it might be because one party lost in front of this judge last time and thinks that the judge’s last experience will color his or her decision this time around.

But under Indiana rules for civil cases, you typically don’t need a reason – at least not the first time – to ask for a change of judge.  Call it the “everybody gets one” rule for judges.  According to Trial Rule 76, in a civil case a change will be granted “upon the filing of an unverified . . . motion without specifically stating the ground,” which means that any real or perceived bias or prejudice is a non-issue.  No reason is required, you get a new judge, but there’s a catch. (There’s always a catch, but you knew that, huh?)

☞  Catch #1: You must file your request on time.

For he that gets hurt
Will be he who has stalled
There’s a battle outside
And it is ragin’.

This usually requires filing your motion within 10 days after “issues are first closed on the merits” or 30 days from the date the case is placed on the court’s docket, depending on the type of case it is.  I won’t bore you with explaining these deadlines in excruciating detail. You’re welcome.  Needless to say, it isn’t long.  So don’t wait until the day before your much-anticipated deposition to tell your attorney  that you have decided you want a new judge.  “He who has stalled” will get his motion denied.

☞  Catch #2: Consider the time and cost invested in a new judge.

If your time to you
Is worth savin’
Then you better start swimmin’
Or you’ll sink like a stone
For the times they are a-changin’

Remember that your new judge might be in another county, particularly if your case is not in metropolitan area.  This might mean the new judge makes you, your lawyer, and your witnesses come to his court. This could certainly increase your costs and your attorney fees.  And there’s no more frustrating way to end litigation than to run out of money to fight – and sink like a stone.

Oh, and if you think that the judge is going to lose sleep over losing you case to another judge, don’t.  He or she has plenty of other cases to stay busy.

It’s often true that you get what you pay for.  A change of judge motion is free. <Ahem>, I said FREE.  What does that tell you? It won’t change the facts of your case.  It won’t change the law of your case.  At best, it can get you a fresh point of view.  That’s not to say it’s never worth it, because sometimes it’s necessary. But like most motions, it’s a calculated investment. Do your math carefully.

The Times They are a-Changin’, 1964, All Lyrics Bob Dylan.

Everybody Counts. Well, at Least They Used to.

Child: But I’ll never use this stupid math as long as I live!

Parent: Of course you will, I use complicated math every day.

Child: [waiting patiently for example]. . . Then why do I –

Parent: Because I said so that’s why!

And just like that, discussion over. The because-I-said-so trump card comes down and all other answers no longer matter. No explanation and no proof. Trump cards are great that way. No more discussion, argument, or measuring who has the better persuasion. Game over.

Last week, the Indiana Supreme Court helped us answer this question of longstanding parental rhetorical brinksmanship, but it didn’t involve trump cards:

Q: So, what exactly can I do to with math when I grow up?

A: Here’s what you can’t do. You can’t count cards in Indiana Casinos.

This was arguably the only really interesting thing ever done with math, and now it’s gone. That sound you hear is the flicker of interest that your children may have in mathematics being snuffed out. As a kid, when I first found out that some people actually make a living playing blackjack, I though it was a bona fide superpower — like X-Ray vision.

Nobody loses the mortgage playing Uno.In Thomas P. Donovan v. Grant Victoria Casino & Resort, L.P, decided on September 30, 2010, the Indiana Supreme Court said that Donovan could be kicked out of a casino for counting cards. There is a long-standing common law right of a business to refuse service to anyone, but the Court of Appeals had agreed with Donovan, who argued that casinos are so heavily regulated that they shouldn’t refuse anybody.

In part, this argument likens casinos to utility companies that are given geographic pseudo-monopolies. Casinos are given an unencumbered license that protects them from most forms of competition. That degree of license comes with much regulation both of the operation of a casino and of the game of blackjack in particular, and should, the argument follows, prohibit exclusion of any individual.

But the Supreme Court was not convinced. It found that the law that regulated casinos was not designed to replace the common law right to exclude a patron from a business. So much for superpowers.