It’s not uncommon for parties in a lawsuit to think the judge is biased, unfair and singling them out for unfair treatment. Usually this happens after the judge rules against them on some procedural issue or otherwise signals he’s unimpressed with the merits of your case. Even experienced lawyers sometime question whether a particular judge has it in for them. Thus, the question often comes up: “Can’t we get ourselves a new judge?” A recent decision of the Court of Appeals for the Federal Circuit in Juicy Whip, Inc. v. Orange Bang Inc., (I love these names!) sheds important light on how an appellate court is likely to respond if actually asked to assign a new judge.

On September 3, 2004, the Court of Appeals for the Federal Circuit had the opportunity to review and comment on a patent owner’s request that a new judge be assigned to the case. The patent owner’s request was not wholly without merit. The district judge had previously found the patent invalid and unenforceable on several grounds. The patent owner successfully appealed those decisions and the case was remanded for trial. Ultimately, a jury found there was infringement. Even so, the district judge limited the evidence the patent owner could use to establish damages and the damages awarded by the jury were, as a result, substantially less than they otherwise would have been. The case then came before the Federal Circuit for the third time. Ultimately, the Federal Circuit upheld the jury’s finding of infringement and decided the judge was wrong to limit the evidence the patent owner could use to establish damages.

Even though the Federal Circuit reversed the judge and ruled in favor of the patent owner on several prior occasions, the Federal Circuit nevertheless made short work of the patent owner’s request that a new judge be assigned. The court noted that assigning a new judge is an extreme remedy that is only rarely granted, and then only in “unusual circumstances.” Despite the existence of grounds calling the judge’s impartiality into question, the Federal Circuit nevertheless decided that “because…unusual circumstance rarely exist to justify reassignment,” reassignment to a new judge was unwarranted.

The patent owner was ably represented by Ernie L. Brooks, a lawyer who certainly knows his craft and effectively represents his clients. He would not have made the request for reassignment absent solid grounds for doing so. Even so, the Federal Circuit said “no way.”

The lesson to be drawn from this is that convincing a group of judges that a fellow judge is less than fair is difficult, if not impossible, to pull off. Judges may privately disagree with each other and may see thing differently, but, at the end of the day, they all wear the same uniform and are all members of the same club. When faced with a hostile judge, the best thing to do in my view is suck it up, take your lumps and do your best. After all, it’s not unusual for a judge to beat you up and sustain all your opponent’s objections before ultimately ruling in your favor.

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Photo of Philip P. Mann Philip P. Mann

Philip P. Mann is a trial lawyer with over twenty years experience litigating patent, trademark, trade secret, and other intellectual property matters throughout the country.
Mann’s trial work has taken him to various federal and state courts where he’s tried both cases to…

Philip P. Mann is a trial lawyer with over twenty years experience litigating patent, trademark, trade secret, and other intellectual property matters throughout the country.
Mann’s trial work has taken him to various federal and state courts where he’s tried both cases to the court (a judge) as well as before juries. In addition to trial court work, Mann has performed appellate work before the United States Court of Appeals for the Federal Circuit.
Mann began his legal career in Chicago and Milwaukee before heading to Seattle where some of America’s most innovative companies were developing new technologies at breakneck speed. Before founding his own firm, he was a member of the Seattle Intellectual Property Law Firm, Christensen O’Connor Johnson Kindness.
Mann is an “AV” rated lawyer by Martindale Hubbell, indicative that he has reached the height of professional excellence and is recognized for the highest levels of skill and integrity.
He holds a degree in Electrical Engineering from the University of Illinois (Urbana) and received his law degree from the Washington University School of Law in St. Louis, Missouri. He is admitted to practice in the States of Illinois and Washington, as well as before the United States Patent and Trademark Office, and in various courts around the country.