Recourse for biased judges presiding over trial

Question

Alice has brought a civil claim against Barbara, and the paperwork has all been filed as directed in the written case directions. Alice has been self representing while Barbara has hired Barry as her high end professional representation.

Then it comes time for a trial / substantive hearing. In principle, the court should make special allowances for Alice as the self-represented party, while the professional lawyers representing Barbara should be held to a higher bar. Alice should be offered more assistance in conveying her case in sessions of open court. But in fact Alice finds that the judges appear rather biased against her: instead of helping her to make out her case with guidance, they are quite arrogant, brusque and snappy. Alice can hardly get out 3 words before being interrupted by the judge to be accused of either repeating herself, or rambling about irrelevant or unimportant topics before she has even been able to explain the full point and its particular supposed relevance to the case. They further accuse Alice when she tries to be rigorous and clear in her arguments of effectively condescending the court which Alice can rest assured, she is told by the judge, is expert in the law and does not need to be educated in it by her. Finally Alice is cut short from making her final few points that she would like to pose because the judges thinks they have heard enough even though in reality they have hardly heard anything from Alice who has hardly had any opportunities to complete a full thought. Meanwhile Barry is allowed to speak at length until he is finished.

On the other hand, Barbara’s highly qualified professional representative Barry is allowed to speak virtually without any interruptions from the court whatsoever. When the court does on one occasion cut in, it is merely to affirm and bring even further one of Barry’s arguments but never to challenge or negate anything which he had said. Barry however has barely said anything of legal or logical significance or insight but rather seems to do a lot of vapid rambling about totally insignificant topics, certainly repeating himself a very great deal, and much of his rambling in fact amounts to in insightful insults toward the other side.

While no verdict has yet been handed down, but Alice has serious concerns as to the conduct of the trial and the impartiality and propriety of the judge in presiding over it, what recourse does she have to register these concerns about the fairness of the trial?

Answer 1

united-states

Alice has no meaningful recourse. She has no legitimate argument to request that the judge recuse. If the judge makes a mistake of law, that can be appealed. Otherwise, she's stuck. In most state and local courts, she can vote against that judge the next time the judge is a candidate on the ballot.

england-and-wales

There may be more options in England and Wales, although it isn't clear that any of the options directly benefit the party who was the victim of the mistreatment.

A senior judge disciplined for bullying a party there where Lord Justice Lewis received a formal warning for misconduct. At his “A Lawyer Writes” Substack site, Joshua Rozenberg has a post that begins:

A member of the Court of Appeal has received a formal warning for misconduct after an inquiry concluded that his behaviour amounted to judicial bullying.

According to the post,

Lord Justice Lewis was found to have behaved in a rude and hostile manner towards counsel in a hearing. Whilst not all the complaint allegations were made out, the nominated judge found that Lord Justice Lewis had intervened excessively in counsel’s submissions, throughout the hearing, in a manner which became increasingly harsh and rude and to the extent that it constituted judicial bullying.

Answer 2

new-zealand

Recusal is not an option. The guidelines require the presence of "circumstances" that might possibly lead to a "reasonable apprehension" that the judge is biased. Normally these are some facts about the judge outside of the present case context e.g. some connection or previous acquaintance with the parties outside the court, or some negative experience with Alice in a previous case.

the court should make special allowances for Alice as the self-represented party, while the professional lawyers representing Barbara should be held to a higher bar. Alice should be offered more assistance in conveying her case in sessions of open court.

Not really. The courts can do it to a certain degree, but don't have to.

Alice can hardly get out 3 words before being interrupted by the judge to be accused of either repeating herself, or rambling about irrelevant...

Alice is cut short from making her final few points that she would like to pose because the judges thinks they have heard enough even though in reality they have hardly heard anything from Alice who has hardly had any opportunities to complete a full thought

That appears to be a violation of s 27(1) of the Bill of Rights Act 1990:

Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person’s rights, obligations, or interests protected or recognised by law.

Namely, it violates the "the right to be heard" principle of natural justice.

Whether or not Alice was actually rambling, repeating herself or talking irrelevancies would be a matter for a review/appeal in the next level court, and this is what Alice's primary recourse is. Depending on circumstances, it may be good idea to request to abort the hearing in order to appeal a specific decision of the judge to silence Alice (as opposed to enduring till the end of the hearing and appealing the overall result).

Also, before hearings happen, the parties get opportunity to make written submissions. The hearing then becomes a forum to orally summarise/discuss those. So, Alice really should have taken the opportunity to submit everything she wants to say in writing. If the judge then ignores it, it may create yet another point of appeal.

Answer 3

Alice has unrealistic expectations

The law does not require that Alice be given special allowances because she is not as skilled a litigant as a trained lawyer. It is not the court’s role to assist Alice to make her case or to understand rules of evidence. Every litigant is treated equally, showing Alice special consideration because of her ignorance would be manifestly unfair. Courts do tend to give more leeway to unrepresented litigants in matters of procedure but they do this for everyone - it’s just that lawyers need it less and are expected to know the rules.

An analogy might help. An umpire in a tennis match is supposed to be disinterested and impartial. That’s fair. It’s also fair that, primarily, the skill of the players will decide the game. If Alice takes to the court without knowing the rules of the game and challenges someone who does, it’s not unfair if the umpire rules against her more often than not. If the other player, in addition to being more knowledgeable, is also more skilful, then Alice is probably going to lose. This is not the fault of the umpire.

Obviously, we don’t know what happened but there are usually three things that screw over novice litigants:

1. Not understanding the elements that they need to prove. For example, in a negligence case, the plaintiff must show that the defendant owed them a duty of care, failed to reasonably discharge that duty, that damage was caused, and that the damage was a result of the failure; novice litigants tend to neglect one or more of these elements and often don’t understand why they lose as a result.
2. Pleadings define the case. The purpose of the pleadings is to put the other party on notice of the legal basis of the case against them and the alleged facts that will prove that case. Novices screw this up in three ways, often all at the same time. First, they often limit themselves to one cause of action (e.g. contract breach) which closes off their ability to pursue other causes later (e.g. negligence) - if a plaintiff starts arguing a cause that is not in the pleadings the judge is quite right to shut them down. Second, they try to present evidence in the pleadings. This is not the place for that and these items will be cut; which may gut the pleadings entirely. Third, they don’t spell out what they want the court to do. The court is not your mother, they are not there so you can cry on their shoulder about how hard the world is. Pleadings must say explicitly what relief you want the court to give you.
3. Rules of evidence. Oh, boy! Rules of evidence are hard, and non negotiable.

The starting point for evidence is that only relevant evidence is admissible. What’s relevant is defined by the pleadings - if the evidence does not bear on something in there, it’s not relevant. If it’s about something that is already agreed, it’s not relevant. If it’s about something that won’t change the outcome, it’s not relevant. The court is not interested (or allowed to consider) the whole story - only the relevant parts of it.

The other major trap is the hearsay rule. Put in its simplest form, things that were said out of court is not evidence that what was said is true. However, there are exceptions and exceptions to the exceptions such that mastering this takes many hours of diligent study and experience- and even then experienced lawyers and judges still get it wrong.

Alice needs to understand that the courts are about resolving disputes according to the rules; not about philosophical notions of truth or justice.

Answer 4

canada

While no verdict has yet been handed down, but Alice has serious concerns as to the conduct of the trial and the impartiality and propriety of the judge in presiding over it, what recourse does she have to register these concerns about the fairness of the trial?

Alice can:

1. Apply to the judge for their recusal.
2. If the judge declines to recuse, either (a) appeal the denial of recusal (whether this is an appealable order will depend on the jurisdiction); or (b) wait to appeal the final order at least in part on the basis of a reasonable apprehension of bias: Cabana v. Newfoundland and Labrador, 2014 NLCA 34.
3. Make a complaint to the Canadian Judicial Counsel.