So you’ve prepared for court, and you’ve got all of your legal ducks in a row. Then the day comes when you find yourself standing before the judge, and the hearing doesn’t go the way you expected. The judge interrupts you, seems impatient, appears to have already made up his or her mind, or seems to misunderstand the issues. As Charleston family law attorneys who appear in court every week, we know that most judges are patient, fair, and respectful, but we also know how stressful it is when a judge seems difficult.
In this article, we explain practical ways to handle a difficult judge, the most common types of difficult judges, and the legal options available if you believe a judge is biased or made the wrong decision. So how do you deal with a difficult judge in South Carolina, and what can you do if you believe the judge is treating you unfairly?
Quick Answer: The best way to deal with a difficult judge in South Carolina is to stay calm, be respectful, be prepared, answer the judge’s questions directly, and let your lawyer handle legal arguments and objections. A judge’s demeanor alone usually isn’t grounds to change the outcome, but you do have options if a judge is biased or makes a legal error, including a motion to recuse, a motion to alter or amend, or an appeal.
Table of Contents
- Why Do Some Judges Seem Difficult?
- How Should You Act in Front of a Difficult Judge?
- How Can You Prepare for Court With a Difficult Judge?
- What Are the Most Common Types of Difficult Judges?
- What Should You Never Say to a Judge?
- Should You Use Humor With a Difficult Judge?
- Can You Ask a Judge to Recuse in South Carolina?
- What Can You Do If a Judge Makes the Wrong Decision?
- Can You File a Complaint Against a Judge in South Carolina?
- Does It Help to Have a Lawyer With a Difficult Judge?
Why Do Some Judges Seem Difficult?
Judges are human beings with their own personal and professional pressures. Family court and criminal court judges in South Carolina often hear dozens of cases in a single day, many of them emotional and contentious. A judge who seems short-tempered may simply be running behind on a crowded docket. A judge who asks pointed questions may be testing the weak points in each side’s case. And a judge who seems to have made up his or her mind may have already read the pleadings, affidavits, and financial declarations before the hearing began.
That does not mean every difficult judge is being fair. But understanding why a judge behaves a certain way can help you and your lawyer adjust your approach so the judge focuses on the facts and the law that support your case.
How Should You Act in Front of a Difficult Judge?
Whether the judge is pleasant or difficult, the following tips will help you make the best possible impression:
- Be respectful at all times. Stand when the judge enters, address the judge as “Your Honor,” and never argue, roll your eyes, or show frustration.
- Dress appropriately. Dress as you would for a job interview. Your appearance tells the judge you take the matter seriously.
- Arrive early. Arriving late can start your hearing on the wrong foot, and in some courts it can result in your case being dismissed or decided without you.
- Answer the question that was asked. Give short, direct, honest answers. If you do not know the answer, say so.
- Do not interrupt. Wait until the judge or the other side finishes speaking before you respond.
- Control your emotions. Family and criminal cases are emotional, but outbursts can damage your credibility, especially in a custody case.
- Let your lawyer make legal arguments. Your lawyer knows how to object, preserve issues for appeal, and redirect the judge to the evidence that matters.
How Can You Prepare for Court With a Difficult Judge?
Preparation is the best defense against a difficult judge. Your lawyer can research the judge, including how the judge typically runs the courtroom, what the judge expects in terms of paperwork and timing, and how the judge has ruled on similar issues. Your lawyer should also prepare you for the questions the judge is likely to ask and how the hearing will proceed.
In family court, temporary hearings are generally decided on affidavits, financial declarations, and other permitted documents, with limited time for argument; the judge may allow additional evidence or testimony for good cause. Our article on what a temporary hearing is in South Carolina explains how those hearings work. Because the judge may have read everything before you walk into the courtroom, the strength of your written materials often matters more than what you say on the day of the hearing.
What Are the Most Common Types of Difficult Judges?
Over the years, lawyers have recognized several common types of difficult judges. Most judges show these traits only occasionally, and a judge who seems difficult in one hearing may be very patient in the next. The following table describes the most common types and how to respond:
| Type of Difficult Judge | How the Judge Acts | How to Respond |
|---|---|---|
| The All-Knowing Judge | Believes he or she already knows the answer and may cut off testimony or argument | Be brief, focus on the facts that distinguish your case, and have your lawyer make a clear record of any evidence the judge refuses to hear |
| The Indecisive Judge | Has trouble making a decision or asks the parties to keep trying to settle | Give the judge a clear, specific proposed outcome and the reasons it is fair, and consider whether a negotiated agreement makes sense |
| The Bench-Weary Judge | Is tired, impatient, or rushed because of a heavy docket | Get to the point quickly, organize your exhibits, and avoid repeating yourself |
| The Unenlightened Judge | Seems unfamiliar with the specific law or facts at issue | Have your lawyer provide a short written summary of the controlling law and key facts, and respectfully walk the judge through them |
| The Advocating Judge | Appears to take one side or questions witnesses aggressively | Stay calm and respectful, answer honestly, and let your lawyer object and preserve the issue for appeal if necessary |
| The Brutish Judge | Is rude, sarcastic, or harsh toward lawyers or parties | Do not respond in kind, keep your composure, and remember that the record is what matters on appeal |
What Should You Never Say to a Judge?
Some comments can damage your credibility or even expose you to contempt of court. Avoid the following:
- Arguing with or insulting the judge. Disrespect toward the court can lead to a contempt finding.
- Saying “I swear to God” or “to be honest.” You are already under oath when testifying, and these phrases can make you sound less credible.
- Attacking the other party. Name-calling and personal attacks, especially in a custody case, usually reflect poorly on the person making them.
- Guessing or exaggerating. If you are not sure of a date, amount, or fact, say so rather than guessing.
- Talking about things the judge did not ask about. Long, unresponsive answers frustrate judges and can open the door to damaging questions.
- Trying to talk to the judge outside of court. Contacting the judge about your case without the other side present or notified is generally improper and can seriously hurt your case.
Should You Use Humor With a Difficult Judge?
Generally, no. Humor can sometimes ease tension in a courtroom, but it is risky, especially for a party rather than a lawyer. What seems funny to you may seem disrespectful or flippant to the judge, particularly in a case involving children, a crime, or serious financial issues. If the judge makes a lighthearted remark, you may smile, but let the judge set the tone and keep your comments serious and respectful.
Can You Ask a Judge to Recuse in South Carolina?
Yes. Under Canon 3 of the South Carolina Code of Judicial Conduct, a judge must disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned. Examples include a judge having a personal bias or prejudice concerning a party or a party’s lawyer, having personal knowledge of disputed facts, having certain family or financial interests connected to the proceeding, or previously serving as a lawyer in the matter. Your lawyer can file a motion asking the judge to recuse, usually as soon as the basis for the request becomes known.
A judge’s adverse rulings, impatience, or harsh comments usually are not enough on their own to require recusal. Bias arising from a source outside the case may support recusal, but the question is whether the judge’s impartiality might reasonably be questioned under the circumstances. Because a recusal motion can affect your relationship with the judge if it is denied, file it only after careful consideration with your lawyer.
What Can You Do If a Judge Makes the Wrong Decision?
If you believe the judge made the wrong decision, you have limited time to act. The following table summarizes the main options in a family court domestic relations case; criminal and juvenile cases may have different deadlines:
| Option | When It Applies | Key Deadline or Limit |
|---|---|---|
| Motion to recuse | The judge’s impartiality might reasonably be questioned | Raise it promptly once the basis is known |
| Motion to alter or amend the judgment (Rule 59(e), SCRCP) | You believe the judge made a factual or legal error or overlooked an issue | Serve the motion within 20 days after receiving written notice of entry of the order |
| Appeal | The judge made a legal error or abused his or her discretion in an appealable order | Generally, serve a notice of appeal within 30 days after receiving written notice of entry of the order, subject to a stay of the appeal period by a timely post-trial motion |
| Complaint to the Commission on Judicial Conduct | The judge’s conduct violates the Code of Judicial Conduct | File with the Office of Disciplinary Counsel, generally within five years after discovering the alleged misconduct, subject to exceptions; discipline only—a complaint does not change the outcome of your case |
A motion to alter or amend asks the same judge to reconsider or correct the order. It is also often necessary to preserve issues for appeal, because an appellate court generally will not consider an issue that the trial judge never ruled on. An appeal asks a higher court to review the record for legal error or an abuse of discretion. Because appeals are based on the record, the arguments and objections your lawyer makes during the hearing are critical. These deadlines are strict, so talk to a lawyer immediately if you are unhappy with a ruling.
Can You File a Complaint Against a Judge in South Carolina?
Yes. If you believe a judge’s conduct violated the Code of Judicial Conduct, such as by showing bias, mistreating litigants, or having improper communications about a case, you can file a complaint with the Office of Disciplinary Counsel. The Office of Disciplinary Counsel screens and investigates complaints; the Commission on Judicial Conduct and, where appropriate, the South Carolina Supreme Court address discipline.
It is important to understand the limits of this process. A judicial conduct complaint is not a substitute for an appeal, and it will not change the outcome of your case. Disagreeing with a judge’s ruling is not misconduct. If your concern is the result, the remedy may be a post-trial motion or an appeal.
Does It Help to Have a Lawyer With a Difficult Judge?
Yes. An experienced lawyer knows the local judges, understands what each judge expects, and knows how to present your case in a way that keeps the judge focused on the evidence and the law. A lawyer can also make objections, preserve issues for appeal, and decide whether a recusal motion, a motion to reconsider, or an appeal makes sense.
In custody cases, the lawyer can also work with the guardian ad litem in South Carolina so the judge receives a complete picture of your family. If you are facing a jury trial instead of a bench trial, our article on how to get out of jury duty in South Carolina explains how South Carolina juries are selected.
The attorneys at Futeral & Nelson have appeared before family court, magistrate, circuit court, and appellate judges in Charleston, Mount Pleasant, North Charleston, Summerville, and throughout the Lowcountry since 2003. Call us at 843-284-5500 to discuss your situation.
