When you file a lawsuit, the circuit court clerk randomly assigns a judge to preside over the case.  If you find you really don’t like the judge assigned, Wisconsin Rule of Civil Procedure 801.58 provides for “judicial substitution.”  In Wisconsin, like in most jurisdictions, there is one – and only one – opportunity for each side to file a substitution request to seek a replacement for the judge that was randomly assigned.  And the statute provides that you must make that decision within ten (10) days after receiving notice of the judicial assignment.

But it’s an easy decision, right?  If a judge with a bad reputation is assigned to your case, you want to substitute and try to get a better one.  It seems simple, doesn’t it?  Well, not necessarily. And since you only get one chance at substitution it can be a crucially important strategic decision with multiple considerations to weigh.

Consideration number one:  Could the random judicial assignment get you a substitute judge that is potentially worse than the one first assigned?  Absolutely.  This is compounded by the fact that the second draw isn’t across the board; it’s very likely that a judge who doesn’t have a full calendar will be assigned.  And why doesn’t a judge have a full calendar?  Probably because a lot of attorneys are substituting on that judge.  A litigation attorney needs to do the proper due diligence to find out who are the likely judges to be assigned as the substitute.

Consideration number two:  What type of case do you have?  If the assigned judge has a bad reputation, that reputation may be built on perceived bias.  You need to take that into account.  If you are the plaintiff, you would normally want the liberal bent.  If you are the defendant, you would normally want the conservative bent.  Judicial bias is unfair and can give judges bad reputations.  But if that bias is unfair in your favor, that’s the choice. Your goal is to win your case, not to save the world.

The next level:  Assume the judge originally assigned is (a) not as versed in this area of law, (b) unpredictable, and (c) just plain mean or angry.  Yes, that definitely happens.  In such a situation then you simply must file the substitution, yes?  That is certainly what my business partner thought when we had a case where that happened some time ago.  Then again, to be fair he handles our corporate side.

We were representing a long-standing client who had just purchased a business.  The former owner negotiated a golden parachute employment contract, allowing termination only for cause. – which was defined narrowly in the purchase agreement.  It didn’t take long, though, and our client felt he had to fire the former owner.  But the “cause” for termination didn’t come close to meeting the definition provided in the agreement.  The ensuing wrongful termination claim was extremely difficult to defend.  In other words, we had a really weak case.

Opposing counsel substituted on the first judge assigned, due to their own unique situation involving that particular judge.  When a horrible judge was then chosen, it seemed our bad case just got worse. So, of course, the expected chess move was for us to pull the trigger and file our own request for substitution.

But we didn’t do that.  Instead, we made a very strategic decision as we had bad facts, bad law, and a bad written agreement on our side.  We decided that having a bad judge who didn’t care about the facts, didn’t know the law, and was unlikely to read the agreement, was the best play.  And it turned out to be our lucky break.

What happened?  The Plaintiff’s counsel immediately filed a motion seeking injunctive relief seeking reinstatement of his client to his employment position. This was to be expected in this type of situation given the facts. However, this was arguably a mistake because such a filing required a lazy judge to review the entire matter on relatively short notice.  Plaintiff’s counsel then missed a picayune filing requirement when seeking such early relief.  And we pounced on it.  We argued it was unfair for the plaintiff to force this judge to make an early ruling when the plaintiff couldn’t even follow the procedural rules properly.  Most judges would have ignored the minor procedural transgression and moved to the substance.  But not this volatile judge.

This judge did not even give Plaintiff’s counsel a chance to argue the merits.  The judge’s ruling was swift and deadly.  There was a procedural error, the motion was not properly presented, and it was summarily denied.  Period. End of matter. Plaintiff’s counsel slunk out of the courtroom, defeated.  And blamed the bad judge.

Did we get lucky?  Yes.  But did we make smart, strategic decisions that increased our chances of getting lucky?  Yes.

When looking for a litigation attorney, make sure you pick one that has the knowledge, experience, and skill to get you the results no matter the factual situation.