Although judges have the power to control almost every aspect of a dependency case, counsel for parents and children can influence that power to their clients’ benefit. To influence judges, counsel must understand the nature and limits of judicial authority. And when judges exceed those limits, counsel must know what actions to take to protect their clients’ rights and interests.
Influencing the Judge
Bold, direct challenges to judicial authority rarely succeed, and, thankfully, are usually unnecessary. In most cases, counsel can influence judges to rule in their clients’ favor by teaching judges the law through several subtle – and not-so-subtle – methods. For example, at trial, counsel can use the following techniques:
Make objections, motions to strike, and detailed offers of proof.
These are basic defensive lawyering techniques essential to preserving issues on appeal. They are also great ways to explain the law to judges. Judges generally want to follow the law and, just as important, don’t want their failure to do so memorialized in a transcript for appellate review. Of these techniques, the most neglected is the offer of proof, which is necessary whenever a judge restricts counsel’s ability to elicit testimony. For example, when a judge refuses to allow counsel to question a witness on a topic, counsel must do more than merely object. Counsel must make a proffer or offer of proof; that is, counsel must explain to the judge why counsel should be permitted to question the witness on that topic, what the witness’s anticipated answers would be, why the testimony is necessary from that witness, and how the missing testimony prejudices the client. A thorough offer of proof preserves the issue for appeal by detailing the prejudice from the judge’s improper ruling. Just as important, it shows the trial judge why counsel is right, and it allows her to change her mind. A detailed offer of proof allows the judge to say, “Oh, I didn’t realize that was where you were going with your questioning. Yes, I’ll let you ask those questions.” Convincing the judge that she wants to hear from the witness is the best form of influence.
File memoranda of law/trial briefs on complex issues of evidence, privilege, or procedure.
Sometimes issues are too complex or nuanced to be resolved through oral squabbling by the lawyers. If the governing rules or cases aren’t clear, counsel should ask the judge to permit the filing of memoranda of law. This preserves the legal issue for appellate review, and it permits the judge to be more thoughtful (and perhaps do her own research) on the subject. Further, the lawyer who best frames the legal issue usually wins the issue. To influence the judge, hand her the legal reasoning on a silver platter.
Address complex procedural issues in advance.
Tricky procedural issues arise in dependency cases all the time. Perhaps counsel’s father-client intends to testify about his mental health treatment but will assert his Fifth Amendment privilege about a recent arrest, and the two issues are related. Or perhaps counsel’s teenaged client will testify, and counsel anticipates an argument about whether some of that testimony will be in open court or in camera. When judges get advance warning about difficult issues like these – by counsel’s written or oral motion, or even just an “Oh, by the way, Your Honor, we may have a problem coming up” – they can plan, ask for memoranda of law, and do their own research. It also alerts them that the issue will likely be raised on appeal, which makes them more inclined to follow the law.
File motions for substantive relief early and often.
Studies show that listeners believe what they hear if the message is regularly repeated. Motions for substantive relief – better services, reasonable accommodations, changes of placement, more/unsupervised visits, etc. – should be filed as soon as the issue arises and filed repeatedly if the issue isn’t resolved. At trial, even if the judge has never granted one of the motions, she may think, “This is the case where CPS won’t give mom any quality time with her kids; that’s bothered me for a long time.” That is a victory of persuasion.
Subtly remind the judge about appeals by citing the benefits of appellate review.
Direct threats to appeal rarely change judges’ minds. Instead, they generate the response, “You go right ahead, counsel.” While trial judges don’t like scrutiny by “higher” judges and the possibility of reversal (even if they are rarely overturned on appeal), they like threats from counsel even less. Instead of threatening appeal, suggest it as an opportunity for much-needed guidance. Every jurisdiction has ambiguous statutes and rules, and controlling cases often have holes in the law big enough to drive a truck through. When counsel anticipates an adverse ruling on an objection or motion, point out the lack of clarity on the issue and ask the judge to “help” set the issue up for appeal: “Your Honor, the statute doesn’t directly address this issue, and it seems to comes up a lot in our cases. I bet we could all benefit from some guidance on this subject. If you agree, perhaps we could submit memos of law to you and you could help us set this issue up for appellate review.” The judge might bite. But even if not, the judge is now on notice that the issue requires her thoughtful analysis and that later scrutiny by “higher” judges is likely.
Powers of the Judge
Counsel cannot influence and challenge judges properly without knowing the nature and limits of their power. While that power differs in each jurisdiction, there are common elements.
Judges generally have “inherent authority” to perform any action to ensure a fair trial so long as it does not violate an existing rule or statute. They have the inherent authority to reconsider decisions until the final judgment, manage dockets and calendars, control court papers, and supervise most court personnel. Judges also have inherent authority to impose sanctions. Most “inherent” powers cause little controversy.
Calling/questioning witnesses. Some judicial powers are more problematic for counsel and easier for judges to overstep. For example, judges generally have the power to call their own witnesses, including experts. They also have the power to question witnesses, and they may do so extensively, provided the questions merely clarify testimony or elicit material facts. There are limits to this power. Judges cannot question witnesses in a prosecutorial manner; they cannot prevent counsel from presenting evidence and examining witnesses; and they cannot solicit inadmissible evidence.
Case settlement. Judges can suggest that the parties settle the case. In some jurisdictions, they can propose terms (although in others the suggestion of terms is an improper prejudgment of the merits). But judges cannot force the parties to settle or threaten to deny them a trial if they do not.
Ex parte communication. Ex parte communication is more complex. Generally, judges cannot communicate about a case without all parties or counsel present. But there are exceptions. Judges can hold emergency hearings – such as emergency custody hearings in dependency cases – ex parte. They can also hold administrative or scheduling discussions ex parte. Judges can consult their staff or court personnel ex parte, but they cannot accept factual information from them that is outside the case record; they must also notify the parties of any such communications and give them an opportunity to respond.
Appellate review regarding ex parte communication is very forgiving. Appellate courts will not reverse if the improper communication was administrative, if the appealing party had notice of the communication but did not timely object or move to recuse, or if the content of the improper ex parte communication did not prejudice the appealing party. As soon as counsel learns of an improper ex parte communication, counsel must object and move to recuse the judge; failure to do so timely will waive the issue.
Impartiality of the Judge - Judicial Bias
The right to an impartial judge is based on the Due Process Clause of the United States Constitution and is expressly set forth in many state constitutions. In addition, state codes of judicial conduct require that judges be impartial. The ABA Model Code of Judicial Conduct, state code analogs, and the common law of many states use a two-part test for disqualification or recusal – a subjective and objective test. The subjective test is met when the judge believes that she is, in fact, biased; the objective test is met if a disinterested person might reasonably question the judge’s impartiality. If either test is satisfied, the judge must recuse herself.
Counsel may question a judge’s impartiality based on her treatment of, and comments made to or about, counsel or counsel’s client. According to Liteky v. United States, judicial remarks and actions require recusal when “they reveal an opinion that derives from an extrajudicial source” – that is, the judge has relied on evidence from outside the case – or where they “reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.” As to the first part, judges may be exposed to extrajudicial information, but they cannot rely on it. For example, the judge may overhear court staff discussing a parent’s bad behavior in the courthouse lobby, but the judge cannot issue an order based on that information unless it is introduced in evidence. In a Massachusetts case, Care and Protection of Zita, the judge granted temporary custody to CPS based on her memories of a previous dependency case that involved the mother’s other children; as a result, the appellate court reversed. Further, judges cannot actively seek outside information; they cannot do web searches for the parties or the facts at issue, and they cannot ask their law clerks or other staff to do so.
What isn’t Bias?
Inappropriate behavior. Litecky sets a high bar; mean or rude comments by a judge do not constitute bias unless they “reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.” Criticism, disapproval, or even hostility to counsel, the parties, or their cases isn’t bias unless it is extreme or pervasive. Appellate courts are extremely forgiving when judges only make one or two nasty comments; they examine the entire trial to place the judge’s comments in context. Even if the judge’s comment or behavior is clearly inappropriate, judges are given considerable leeway. For instance, in an Ohio case, State v. Johnson, the judge cried during sentencing because she was sympathetic to the victim’s family. The appellate court affirmed; the judge was permitted to exhibit human emotion, and doing so did not show bias.
Preference for a party. Judges may show a preference for one side, but only if that preference is based on information learned from the case. A judge may, therefore, express her preliminary views of the merits of the case so long as those views stem from information learned at trial or observations of the parties during trial. A judge’s preference shows bias only if it is “undeserved, or because it rests upon knowledge that the subject ought not to possess . . . or because it is excessive in degree.” Accordingly, if a parent equivocates during testimony, the judge can question the parent’s credibility and call him a liar. But the judge probably cannot call him the “worst liar ever” (which is excessive) and definitely cannot say he’s a liar based on extra-judicial information.
Criticism of counsel. Judges may scold and criticize counsel in an effort to control the courtroom and the progress of trial. If, for example, counsel is talking over the judge or repeatedly asking leading questions to a witness on direct despite warnings to stop, the judge can criticize counsel’s performance. Indeed, the worse counsel’s behavior, the harsher the judge is permitted to be to manage the trial. A judge is not biased if she held counsel in contempt in a prior case or even in the same case. Even if the judge’s poor behavior is unrelated to counsel’s misconduct, it does not indicate bias unless it is extreme, pervasive, or “reveal[s] such a high degree of favoritism or antagonism as to make fair judgment impossible.”
Remanded or related dependency cases. Judges may sit on the same dependency case on remand, even if the appellate court has found prejudicial errors (although an appellate court can remand specifically to a different judge). Judges who presided over a parent’s prior dependency cases involving the same or other children can sit on new cases, even if the judge terminated parental rights in the prior case. The judge cannot rely on memories of the prior cases when ruling in the current case – she must rely on evidence admitted, or observations made, in the current case.
What is Bias?
Judges do not get a free pass for all types of mistreatment of counsel and clients.
Unfair treatment. Sometimes a judge’s treatment of counsel is so virulent that her fairness must be questioned. For example, where the judge’s extreme harshness:
- is not intended to address misbehaving counsel,
- has not been triggered by counsel’s misbehavior,
- is grossly disproportionate to counsel’s misbehavior, or
- is aimed at only one lawyer when all are acting the same way.
In a Massachusetts case, Commonwealth v. Sylvester, the judge ridiculed defense counsel, threatened to cut off her argument, and interrupted her questioning of witnesses. Most of the judge’s harsh comments were directed at her, nearly all disparaged her skills, and many had personal overtones. Meanwhile, defense counsel had conducted a skillful trial, objected respectfully, and “painstakingly attempted to preserve her client’s rights.” The appellate court reversed, holding that the judge’s bias denied the defendant a fair trial.
Denial of due process. Appellate courts will also reverse when a judge’s harsh treatment deprives that party of due process. For example, if counsel bungles a cross-examination, the judge can call counsel inept and warn him publically that he must raise his game. But the judge cannot declare that, as a result of the incompetent cross, the client has rested. Judges also cannot, in order to “punish” a poorly behaving client or underperforming lawyer, refuse to hold a normal trial, act as a prosecutor, improperly restrict counsel’s cross-examination, prevent offers of proof, or unreasonably cut off counsel’s closing.
Early determination of case merits. Appellate courts will reverse for bias when judges make up their minds on the merits before all evidence is presented. Although, as noted above, tentative views of the merits are permissible before the end of trial (provided they arise from what the judge has heard and observed in the case), the judge cannot “decide” a legal issue before the end of trial. For example, in Adoption of Adina, a Massachusetts case, the appellate court reversed because the trial judge stated that the mother was unfit even without a trial. Even appearing to have decided the merits before the close of evidence is reversible. In another Massachusetts case, Adoption of Tia, the appellate court warned that trial judges must maintain not just fairness but the appearance of fairness; otherwise, counsel and the parties will lose faith in the impartiality of the judiciary.
Expression of personal bias or prejudice. Finally, appellate courts will reverse for judicial bias when the judge expresses an actual personal bias or prejudice about the parties or counsel. For instance, judges cannot express disdain for people of a certain faith or color or an opinion that single parents are per se inadequate. In a United States Supreme Court case, Berger v. United States, a criminal case in which the defendant had German ancestry, the trial judge made several insulting comments about Germans, including “[t]heir hearts are reeking with disloyalty.” The Court reversed based on bias.
Removing the Judge
Sometimes it serves the client’s interests to seek recusal of a judge. As noted above, many states apply a two-part test for recusal. First, the subjective test – does the judge believe she is, in fact, biased? Second, the objective test – would a disinterested person reasonably question whether the judge is biased? If either the subjective or objective test is satisfied, the judge must recuse herself. In addition, the judge should recuse herself if she has personal awareness of material, disputed facts.
Counsel must file a motion to recuse at the earliest moment after learning the facts suggesting bias or improper conduct. This can be tricky if the problematic statements or conduct occurred in a lobby conference or sidebar, where judges tend to be less careful with their comments about clients, counsel, and disputed facts. In such a case, counsel must move to recuse immediately after the lobby conference or sidebar. If the lobby conference or sidebar was unrecorded, counsel must, on the record, state what occurred, including the judge’s exact words (to the extent possible); otherwise, there is no record of the judge’s improper statement or action for the appellate court to review. Judges should rule on counsel’s motion to recuse in a timely fashion. If a judge believes recusal is necessary, in most jurisdictions that recusal is for all purposes; the judge should have no involvement with any aspect of the case.
Judges are extremely powerful in dependency cases, but they can be influenced through defensive lawyering techniques and other methods. Sometimes judges exercise their powers in ways that ill-serve clients’ or counsel’s interests. When they do, they must be challenged. Knowing the limits of judicial authority will help counsel with such challenges. Motions to recuse are – and should be – a last resort, but knowing how and when to seek recusal is essential to effective client representation.
Andrew Cohen, JD, is the Director of Appellate Panel, Massachusetts Committee for Public Counsel Services, Children and Family Law Division.
The author thanks ABA co-presenter David Meyers, Esq., Chief Operating Officer, Dependency Legal Services of Northern California; Massachusetts co-presenter Katrina Krywonis, Esq., Massachusetts Committee for Public Counsel Services (CPCS), Children and Family Law Division; and CPCS intern Corey Jacobson, Amherst College, who helped translate our PowerPoint presentation into article format.
 See, e.g., Haan, Sarah C. “The ‘Persuasion Route’ of the Law: Advertising and Legal Persuasion,” Columbia Law Review 100, 2000, 1281, 1301.; Hawkins, Scott A. & Stephen J. Hoch. “Low-Involvement Learning: Memory without Evaluation.” Journal of Consumer Research 19, 1992, 212.
 See Link v. Wabash R, Co., 370 U.S. 626, 630-631 (1962); Matter of Sealed Affidavit(s) to Search Warrants, 600 F.2d 1256, 1257 (9th Cir. 1979); Commonwealth v. Charles, 992 N.E.2d 999 (Mass. 2013); First Justice of Bristol Div. of Juv. Ct. Dept. v. Clerk-Magistrate of Bristol Div. of Juv. Ct. Dept., 780 N.E.2d 908 (Mass. 2003); State v. Gassman, 283 P.3d 1113, 1114 (Wash. 2012).
 See Quincy Trust Co. v. Taylor, 57 N.E.2d 573 (Mass. 1944); Band’s Refuse Removal Inc. v. Fair Lawn, 62 N.J. Super. 552, 548 (1960); U.S. V. Karnes, 531 F.2d 214, 217 (4th Cir. 1976); Scott v. Spanjer Bros., Inc., 298 F.2d 928, 930 (2nd Cir. 1962); U.S. v. Leslie, 542 F.2d 285, 288-89 (5th Cir. 1976).
 See In re Tamesha T., 16 N.E.3d 763 (I11. App. Ct. 2014); Adoption of Norbert, 986 N.E.2d 886 (Mass. App. Ct. 2013); People v. Stevens, 869 N.W. 2d 233, 243 (Mich. 2015); In re A, 283 N.W.2d 83, 85 (N.D. 1979); State v. Taffaro, 950 A.2d 860, 865 (N.J. 2008).
 See Furtado v. Furtado, 402 N.E.2d 1024, 1035-36 (Mass. 1980); Commonwealth v. Festa, 341 N.E.2d 276, 279-80 (Mass. 1976) Adoption of Norbert, 986 N.E.2d 886 (Mass. App. Ct. 2013); Band’s Refuse Removal Inc. v. Fair Lawn, 62 N.J. Super. 552, 548 (1960); In re Exsavon A. J., 801 N.W.2d 349 (Wis. Ct. App. 2011).
 See In re Hitchcock, 265 N.W.2d 599 (Iowa 1978); Adoption of Tia, 896 N.E.2d 51, 57 (Mass. App. Ct. 2008); Custody of Zia, 736 N.E.2d 449 (Mass. App. Ct. 2000); Peskin v. Peskin, 638 A.2d 849, 856-59 (N.J. 1994).
 See Demoulas v. Demoulas Super Markets, Inc., 703 N.E.2d 1141 (Mass. 1998). But see Guardianship of Garrard, 624 N.E.2d 68, 69-70 (Ind. Ct. App. 1993) (reversing where judge had ex parte communication with family therapist, even though appellate court did not know substance of communication or whether it prejudiced the appellant).
 See Buckley v. Snapper Power Equip. Co., 813 P.2d 125, 127-28 (Wash. Ct. App. 1991); Moore v. Moore, 809 P.2d 261, 162 (Wyo. 1991); Demoulas v. Demoulas Super Markets, Inc., 703 N.E.2d 1141, 1144-45 (Mass. 1998); Crawford v. Crawford, 633 A.2d 155 (Pa. Super. Ct. 1994) (holding that judicial bias may not be raised for first time during post-trial proceedings).
 See U.S. Constitution, Amend. XIV, § 1 (“No state shall . . . deprive any person of life, liberty, or property, without due process of law[.]”). See, e.g., MA Const., art. XXIX, § 1 (“[I]t is the right of every citizen to be tried by judges as free, impartial and independent as the lot of humanity will admit.”).
 ABA Model Code of Judicial Conduct, Rule 2.9(C) & Comment ; Formal Op. 478 ABA Stand. Committee on Ethics & Professional Responsibility; Alfred v. Comm’r, Jud. Cond. Comm’n, 395 S.W.3d 417, 448 & n. 92 (Ky. 2012).
 See Liteky, 510 U.S. at 551 (“It has long been regarded as normal and proper for a judge to sit in the same case upon its remand, and to sit in successive trials involving the same defendant.”). Remands to different judges are rare, but they do occur. Massachusetts unpublished cases include Adoption of Zaria, 945 N.E.2d 1004 (Mass. App. Ct. 2011) (Table); Adoption of Jerrold, 909 N.E.2d 60 (Mass. App. Ct. 2009) (Table); Adoption of Chase (No. 1), 906 N.E.2d 368 (Mass. App. Ct. 2009) (Table); Adoption of Titus, 903 N.E.2d 605 (Mass. App. Ct. 2009) (Table); Adoption of Adina, 901 N.E.2d 729 (Mass. App. Ct. 2009) (Table).
 Adoption of Anne, 102 N.E.3d 1030, *1 & fn. 4 (Mass. App. Ct. 2018) (Table) (no bias where judge sat on previous termination case and previous status offense case where mother was subject); State, In re M.L., 965 P.2d 551, 556 (Utah Ct. App. 1998); In re LaRue, 440 S.E.2d 301, 303 (N.C. Ct. App. 1994).
 Ibid.,1108; see also Alley v. State, 619 So. 2d 1013 (Fla. Dist. Ct. App. 4th Dist. 1993); Johnson v. State, 722 A.2d 873 (Md. Ct. App. 1999); People v. Stokes, 689 N.E.2d 625 (Ill. App. 1st Dist. 1997).
 Ibid.; cf. Wheat v. United States, 486 U.S. 153, 160 (1988) (noting that the federal courts have an “independent interest in ensuring . . . that legal proceedings appear fair to all who observe them.”).
 Ibid.; see also Catchpole v. Brannon, 36 Cal. App. 4th 237, 247, 42 Cal. Rptr. 2d 440 (1997); Commonwealth. v. Williams, 69 A.3d 735, 748–49 (Pa. Super. Ct. 2013); Buschardt v. Jones, 998 S.W.2d 791, 803 (Mo. 1999); In re J.A. & L.A., 601 A.2d 69, 78 (D.C. Ct. App. 1991); Tindle v. Tindle, 761 So. 2d 424, 425 (Fla. 2000).
 Parenteau v. Jacobson, 586 N.E.2d 15, 19 (Mass. App. Ct. 1992) (“[A] judge cannot partially recuse himself. Once a judge concludes that there are grounds for recusal, he must completely dissociate himself from participating in the case.”). But see Zurosky v. Shaffer, 776 S.E.2d 897 *5 (N.C. Ct. App. 2015) (Unpublished) (addressing “partial recusal”).