Lawyers have favorite judges

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Ted Sullivan
February 20, 2010
— When attorneys in Rock County Court ask for a new judge, more than half the time it’s Judge James Welker they want to substitute out, according to a Gazette analysis of court data.

Attorneys asked for 693 judge substitutions from January 2005 though November 2009, and 356 of the requests were in Welker’s court.

Welker, a civil judge, said a few local lawyers often substitute in his court.

“It’s just a matter of personality. They’d rather be in another court,” he said. “When I was practicing, I had that feeling, too, about a certain judge.”

Although Welker had the most substitutions in the last six years, criminal Judge Michael Fitzpatrick had the most in 2009.

Fitzpatrick declined to comment.

Criminal Judge James Daley and civil Judge Daniel Dillon had the fewest substitutions in recent years, indicating attorneys prefer their courtroom.

Defense attorneys in criminal cases can request a new judge once per case under state statutes. In civil cases, lawyers on both sides each can request a new judge one time. The requests are allowed without explanation.

Courtroom strategy

Matt Roethe, an Edgerton attorney and president of the Rock County Bar Association, said lawyers request substitutions for many reasons.

Attorneys want the best judges for their client, he said, and they might request a new judge for strategic reasons, he said.

A judge’s ruling in a previous case could go against the attorney’s client, Roethe said. Attorneys also want judges with a record of consistency in rulings and sentences.

One disadvantage to substitutions, though, is that attorneys don’t know which judge they’ll get next, he said. Attorneys also don’t want judges to take substitutions personally because they’ll be in their court again.

Reputations and gossip

Michele LaVigne, a UW-Madison criminal law professor, said attorneys often know a judge’s opinion on certain issues.

Judges have reputations, courtroom gossip flows and attorneys might want a new judge to make sure their case is judged fairly, she said.

“It’s just the sense of, ‘Where does my argument have the best chance of succeeding?’” LaVigne said. “Attorneys don’t abuse it.”

Substituted cases don’t clog the court system because they occur in such a small percentage of cases, she said. They also are assigned to a new judge immediately.

Judges with a high number of substitutions also don’t have a reduced caseload because they will draw a replacement right away, LaVigne said.

Client’s choice

Tony Kraujalis, a Janesville attorney and vice president of the Rock County Bar Association, said clients might not like a certain judge and want a substitute.

Judges also might have the perception of moving cases too quickly or being too harsh at sentencing, he said.

Other attorneys or clients might think a judge moves cases too slowly, Kraujalis said.

“On my part, I substitute very seldom,” he said. “I don’t happen to do a lot of substitutions. Other attorneys are more aggressive in that way.”

‘I don’t mind’

In Welker’s court, he averages 40 to 65 substitutions a year out of about 2,000 cases.

That number isn’t high compared to the caseload, Welker said. Other judges in the region have more substitutions.

“I don’t think it says much about the particular judge,” he said.

Attorneys might have reasons for substituting in his court, but he isn’t aware of them, Welker said. Family law accounts for about half his substitutions.

“It’s OK,” he said. “I don’t mind.”

Substitutions of judges follow a different pattern in Walworth County

In Walworth County, judge substitutions follow no particular judge but rather the kinds of cases they handle, according to a Gazette analysis of court data.

The four circuit court judges are rotated every two years between four courts: felony, civil, probate and family, and misdemeanor and traffic.

Between 2004 and 2009, Walworth County judges were substituted 485 times. The five-year period’s peak was in 2008, when 115 substitutions were requested.

“I’m assuming it’s because for whatever reason, their client feels they would get a fairer treatment by a different judge,” District Attorney Phil Koss said about attorneys that request substitutions.

The felony court had the highest number of judge substitutions between 2004 and 2007. The misdemeanor and traffic court had the highest number of substitutions between 2007 and 2009.

Koss said the substitutions likely follow the criminal courts because stakes are higher.

Defense attorneys are allowed one judge substitution for which they don’t have to provide a reason, making it difficult to determine why an attorney requested a different judge.

Judge Robert Kennedy had the most substitutions between 2004 and 2009 with 168, followed by Judge John race with 155, Judge Michael Gibbs with 119 and Judge James Carlson with 43.

Carlson had four substitutions when he ran felony court in 2007, the lowest number of substitutions in a five-year period.

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