Article I, 1018 ALBJ, Vol. 31, No. 5. 14

PositionVol. 31 5 Pg. 14

Article I

Vol. 31 No. 5 Pg. 14

Utah Bar Journal

October, 2018

September, 2018

Disqualification of a Judge -Rule 63


The story that we were told by our father/grandfather, Jackson Howard, was that the case involved a young student who had sued BYU for personal injuries. It was a fairly good case as to the facts and the law but a bit of a gamble as to what damages it might bring. Discovery had been completed, and the lawyers were appearing before the district court for a pre-trial conference in preparation for a scheduled jury trial several months away. The pre-trial was before a no-nonsense judge, whom we will refer to as Judge Smith. The lawyers reported to the court that their discovery was concluded, stipulated to their exhibits, acknowledged the expected special damages, and discussed several perfunctory pre-trial motions. Then, before confirming the trial date, defense counsel took Jackson aside and suggested that to save time and expense they could shorten the trial by trying the case to the bench, if he was willing. Jackson paused for a moment and then said that he was willing to do so. Hearing the stipulation of the parties for a bench trial, the court moved up the trial date.

Both parties were well prepared at trial, and the case proceeded as Jackson had expected - but not as anticipated by the defense, Every objection of the defense was seemingly overruled, and every motion denied. The defense scrambled to deflect the mounting evidence on the record. The plaintiff's case was proceeding "swimmingly" well, and they couldn't seem to put the brakes on it. It was a well-known fact in the community, however, that Jackson's nemesis was Judge Smith. They had developed a mutual dislike for each other from trying several big cases over the years. In the end, Judge Smith awarded the plaintiff judgment for everything she had asked for. Jackson gathered up his trial files, bid defense counsel good day, and drove back to his office. At the office his staff and associates congratulated him on his great victory but asked why it was that the case had gone so well before Judge Smith. They too were perplexed given that it was Judge Smith. Jackson responded, "Well, it being a good case aside, what the defense did not know is that while it is true that Judge Smith hates me, it is also true that he hates BYU more."


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