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Your Legal Minute 


by Stewart D. Jenkins on 11/17/15

During the more than 36 years I have practiced law folks who have tried to handle their cases by themselves, and some who have struck out represented by other lawyers, have asked me to take over their cases after they have lost at one or more preliminary hearings.

Frequently these folks have concluded that they, or their prior lawyer, didn’t present all of the evidence, or didn’t argue the law properly.  Usually the TEN [10] DAY PERIOD that they had following entry of a ruling or an order to set a hearing asking the Judge to reconsider based on new evidence, or new law, that was not available at the hearing they lost has passed by the time these folks have made their way to my office [See California Civil Code or Procedure, Section 1008].  This may leave them in a situation where they are stuck; where their only remedy is an expensive Petition to the Court of Appeal for a Writ or in some rare situations an expensive filing of an Appeal of the Superior Court’s interim decision.

A litigant is very, very, rarely privileged to disqualify a Judge after the Judge decides matters at a hearing.   Sometimes, though, changes in judicial assignments, judicial retirements, or other factors come together in a way where a different Superior Court Judge (who may have a slightly different approach) causes folks to ask their lawyer, or their new lawyer, to ask the new Judge to overrule the Judge that they struck out with earlier in their case. 

There are some instances where this is possible; though clients need to know that “generally, one trial judge may not reconsider and overrule an interim ruling by another trial judge” in the same case. 

An experienced attorney can help a client in appropriate cases convince a second Judge to backtrack and make a different ruling; but only if he or she can develop evidence and arguments taking advantage of the few narrow exceptions to the general rule.  Competent Counsel may be able to demonstrate in a Family Law Proceeding that “facts have changed” or “further evidence and law” now mandate a different outcome.  If facts exist, an attorney can help client’s prove in a divorce, paternity, custody or support matter the other party tricked the first Judge into making the wrong decision by presenting fraudulent, perjured or mistaken evidence. See In re the Marriage of Oliverez (2015) 190 Cal.Rptr. 436, 441-442.

Care and good judgment are critical in deciding whether to try to get a second Judge to overrule an earlier decision by the first Judge.  Financial sanctions and attorney’s fees are generally the “reward” for litigants who try, but fail, to convince a second Judge that Judge number one was all wet when ruling against them.  Parties in any civil suit, particularly in legal separation, dissolution, parental relations or support cases, are well advised to steer away from the attempt to convince a second Judge that an earlier Judge was wrong without professional representation and advice from an experience competent attorney.

by Attorney, Stew Jenkins
Disclaimer: Blog posts are NOT legal advice and NO Attorney-Client Relationship is formed by these posts or by any comments, or by comments replying to comments on this Blog. This is for general information as the laws frequently change and might be different in other jurisdictions. This Blog is not intended to substitute for advice from an attorney, licensed in your jurisdiction. Please consult a competent attorney in your area if you require legal advice. Please do not include sensitive or confidential information in your comments, replies or emails. 
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