A Peremptory Challenge: Studying the Lawyers that Study the Judges

Enacted in 1957, Section 170.6 of the California Code of Civil Procedure (CCP) granted litigants the opportunity to peremptorily disqualify a superior court judge from presiding over their case. This disqualification requires no justification other than a litigant stating that the assigned judge is prejudiced against the attorney, the attorney’s firm, or the attorney’s client. That’s right, no facts are needed to prove any of these allegations. As long as it is timely filed, the disqualification is granted as a matter of right.

Throughout Los Angeles County, the number of CCP 170.6 filings as a percentage of total court filings has increased from 0.53% in 2009 to 1.78% in 2016. Interestingly, a large portion of these peremptory challenges has been submitted in response to employment-related cases. We can see, for example, that between 10% to 20% of all wrongful termination filings have involved a CCP 170.6 peremptory challenge.

Some have expressed concern about these trends, arguing that far too many 170.6 challenges are made for the purposes of judge shopping and procedural delays.[1] Others have been unsettled by the ways in which section 170.6 has been used to place pressure on particular judges. In criminal cases, for example, prosecutors from the Office of the District Attorney have formed their own constituencies.[2] When faced with a judge believed to be prejudiced in favor of defendants, all of the prosecutors will band together, issuing 170.6 challenges as a way to boycott that individual judge from every single case.[3] This allows the Office of the District Attorney to intimidate judges into issuing rulings in its favor, as these tactics threaten to end the judicial careers of those judges who fail to change their ways.

Despite these concerns, judge shopping, procedural delays, and strategic boycotts are the realities in which litigants must practice. The rise of judicial analytics has allowed legal practitioners to sketch a fuller picture of a judge, one that includes insights into their predispositions-their legal leanings and their prior rulings. With such information, section 170.6 filings can do more than challenge prejudicial judges. They can also help attorneys find judges more amenable to their cases.[4]

But there is more to legal analytics than the analysis of judges. It is also possible to study how litigants and parties move through the legal system, differences in the ways that corporations tend to navigate as compared to individuals, and disparate outcomes associated with both. To illustrate: we can see that plaintiffs in employment cases throughout Los Angeles County have filed CCP 170.6 challenges in greater numbers than defendants. We can also see that this divergence has continued to increase over time, creating a situation wherein plaintiffs have become far more likely to issue CCP 170.6 challenges in employment cases.

As we continue to synthesize California Superior Court records, we can generate insights about how judges might rule on particular types of motions, in particular types of cases. But we can also do something else. We can also start formulating actionable insights into how litigants navigate through the legal landscape generally.

How have litigants’ perceptions of judges informed their strategies? How do these new strategies correlate to case outcomes? That is to say, how have litigants’ deployment of judicial analytics affected the ways in which particular kinds of cases unfold?

We’re in an exciting time where data and technology allow not only for more strategic decision-making during litigation but also for greater transparency, allowing us to gain the necessary insights to analyze the justice system in new and more meaningful ways.

[1] Kane, Stephen J. 2002. CCP Section 170.6 Should Be Repealed. Association of Business Trial Lawyers Report 11(3). [2] Scheppele, James Michael. 2005. Are We Turning Judges into Politicians? Loyola of Los Angeles Law Review 38(3). [3] Klunder, Jan. 1985. Prosecutors Unite in Boycott of Judge. Los Angeles Times (October 19). [4] Burg, Edward G. 1981. Meeting the Challenge: Rethinking Judicial Disqualification. California Law Review 69(5).

Originally published at https://blog.trellis.law.