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.

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Author: T. Andrew Perkins

I have practiced law in Rochester since 2001. My practice is varied: appellate law; general civil litigation; real estate; family law; and probate and estate planning. I am an active member in the Peru Grace Brethren Church. I have also served on the boards of various community organizations, including: Fulton County Community Foundation, Fulton County Leadership Academy, Fulton County United Way, Rochester Kiwanis Club, Fulton County Council on Aging, and the Fulton County Chamber of Commerce. You can reach my office from the Links page.

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