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What Can You Do If a Judge is Unfair?

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One of the mains goals of the U.S. legal system is to treat everyone with fairness and equality.
Unfortunately, several factors can impact this goal, resulting in a less-than-fair situation. One of 2.3K
these scenarios can involve a biased or unfair judge. While this may seem like a problem that is out Like Tweet

of your hands, there are steps that can be taken — with the assistance of a legal professional — if
you feel you’ve been treated unfairly in a courtroom. Here are several possible answers to a
Disclaimer
difficult question to face — what can you do if a judge is unfair?
Disclaimer
Nothing implied or stated on this page should be
construed to be legal, tax, or professional advice.
Ethical Standards of a Judge The Law Dictionary is not a law firm and this page
should not be interpreted as creating an attorney-
client or legal adviser relationship. For questions
regarding your specific situation, please consult a
qualified attorney.

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Before examining what you can do if a judge is unfair, it’s important to examine the standards every
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judge is expected to uphold. According to the Code of Contact for United States Judges, there are
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three main elements to the expected behavior and ethical benchmarks of a judge:

Respect for Law. A judge should respect and comply with the law and should act at all
times in a manner that promotes public confidence in the integrity and impartiality of the
judiciary.
Outside Influence. A judge should not allow family, social, political, financial, or other
relationships to influence judicial conduct or judgment. A judge should neither lend the
prestige of the judicial office to advance the private interests of the judge or others nor
convey or permit others to convey the impression that they are in a special position to
influence the judge. A judge should not testify voluntarily as a character witness.
Nondiscriminatory Membership. A judge should not hold membership in any organization
that practices invidious discrimination on the basis of race, sex, religion, or national origin.

In addition to those standards, understanding the definition of “bias” (or unfair) gives a clear picture
of how certain actions can call into question whether or not a judge is upholding his or her expected
standards. A definition for bias reads:

“Inclination; bent; prepossession: a preconceived opinion; a predisposition to decide a cause or an

issue in a certain way, which does not leave the mind perfectly open to conviction.”
If you and your legal representation feel a judge has betrayed any of the above ethical standards in
a way that shows unfairness or bias, then it’s time to explore possible legal actions.

What Can You Do If a Judge is Unfair?

There are several different options you can pursue if you feel a judge has acted in an unfair way,
and each navigates a slightly different path.

Request Recusal
It’s possible — and necessary — for a judge to recuse his or herself when certain elements are
involved in a case. These are outlined in 28 U.S. Code § 455. A small section of the Code that details
situations in which a judge should recuse him or herself goes as such:

“(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of
disputed evidentiary facts concerning the proceeding; (2) Where in private practice he served as
lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served
during such association as a lawyer concerning the matter, or the judge or such lawyer has been a
material witness concerning it; (3) Where he has served in governmental employment and in such
capacity participated as counsel, adviser or material witness concerning the proceeding or
expressed an opinion concerning the merits of the particular case in controversy; (4) He knows that
he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a
financial interest in the subject matter in controversy or in a party to the proceeding, or any other
interest that could be substantially affected by the outcome of the proceeding; (5) He or his spouse,
or a person within the third degree of relationship to either of them, or the spouse of such a
person…”

If any of these situations are true, and a judge doesn’t execute the recusal themselves, an individual
involved in the lawsuit can formally request a recusal based on the grounds of unfairness or bias.

File Appeal to Send Decision to a Higher Court

If a ruling has already been made in your case, and you and your legal representation feel the
judge’s biases have impacted the decision, you can file an appeal to have the case elevated to a
higher court. These appeals are made based on a belief the judge arrived at the decision due to
prejudice, incorrect use of the law, or incorrect or ignored evidence. If the appeal is accepted by an
appellate judge, he or she could overturn the original decision or send the case back down to the
lower court and order the judge to rehear it to correct the initial error in judgement.

File a Motion for Reconsideration

Instead of escalating to a higher court, filing a motion for reconsideration goes directly to the judge
overseeing the case. A motion for reconsideration includes a written brief containing the reasons
why you and your legal team believe the decision was unfair or biased. In addition to the written
brief, there may be oral arguments before the judge. Typically, a motion for reconsideration must
be filed within a certain timeframe, and since these periods can differ from state to state, it’s
important to be aware of the particular time constraint to ensure the motion is heard.

File a Grievance on the Basis of Unethical Behavior

As outline above in the “Ethical Standards of a Judge” section, all judges are expected to meet
certain ethical standards as long as they hold court. Filing a grievance based on unethical behavior
can encompass a wide range of infringements including violations of the code of conduct (also
outlined above) or simply behaving in an inappropriate manner during the trial. These grievances
are filed against the judge in question with a clerk of federal appellate court. The grievance should
contain a detailed account of the judge’s actions and witnesses to the behavior.

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Related Legal Terms

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