Bigfoot, Unicorns, and Predictability



I overheard a conversation in which a well-respected and seasoned litigator informed various lawyers that he could never have a conflict with a particular judge. That piqued my curiosity, and I listened just a bit harder. He described how he had a "standing disqualification“ with that judge. I found that intriguing, because. like unicorns, magic snowmen, and reclusive primates of inordinate foot size, there is simply no such thing. Hearing someone of his experience believing in bigfoot was troubling. 
It is possible that a judge may enter voluntary recusals in a variety of cases. That might be perceived by any party, lawyer, or observer, as  seeming “automatic," or "standing." One might make the same observation regarding my culinary habits and weekly visit to my favorite pizzeria. My habitual choice of restaurant, and even of particular soft drink, appetizer, and pizza, might be viewed by some observers as “automatic,” or "standing." However, that I have proclivities, predictabilities, or even habits, does not make anything "automatic.”
In the world of adjudication, there are those who simply lack the ability to set aside implications of former relationships. Over some period of time, they have come to some degree of affinity or connection, and have concluded the existence of their own unassailable predisposition or bias. Others, out of a concern for public perception of the duration or extent of inter-relationship, may instead elect recusal, based on the broad prospects of an appearance of impropriety (Canon 2, Code of Judicial Conduct).
Clearly, neither approach is inherently wrong. As clearly, neither is “automatic" nor "standing."
Back in the day, my legal representation included one of the largest manufacturers of ground coffee in the world. I habitually, regularly, and rotely, consumed a pot or two of coffee every day. Coffee was a "go-to,“ A regularity, a habit. Over the course of decades, following college. I had become enamored with the aroma and taste of coffee. A family member once accused me of being an "addict,” to which I took some umbrage.
In February 2005, responding to that “appearance of habit,“ I gave up coffee. I did so that way one successfully gives up anything, “cold turkey.“ The next coffee I ever consumed was over 14 years later in the summer of 2019 when I was drawn back to the concoction by the novelty of my first trip to the European continent in half a century. I reasoned that trip might be my only opportunity, and I partook. Since then, I have consumed something less than a dozen cups of coffee in four years. All of them in Europe.
From either perspective, you might view that and conclude I had a coffee habit and then an abstention habit. But no one would be justified in concluding, even at my two-pot-per-day pinnacle that coffee was “automatic“ or "standing." Even then, I frequented water, soda, and more in my beverage choices. And in the last 18 years of my coffee abstention, one might point to the dozen European instances, and suggest that my abstention was likewise not "automatic.“ But, despite that, an observer is not bound by the facts but by their perceptions of the facts. 
There was a humorous 20th-century commercial regarding the consumption of coffee. A host proffers a refill and it is accepted by "Jim." A "significant other's" thoughts are quietly narrated in: "Jim never has a second cup of coffee at home.“ The theme was notable, and became part of our lexicon. It was the subject of some humor in Airplane (Paramount, 1980). It illustrates that perhaps Jim has a one-cup habit. Jim is perhaps quite predictable by those close to him. But, Jim is making individual, case–by–case decisions regarding his consumption. His coffee decisions are neither "automatic" nor "standing." 
Judges make individual, case–by–case decisions, regarding a plethora of topics, subjects, interpretations, and applications. That, at bare essence, is what we do. That an outside observer discerns or perceives some pattern is perhaps more on them than upon the observed judge. It behooves the community to understand that any individual's perceived habit may or may not persist as you anticipate, or expect. What is appropriate in a particular case is ultimately up to the judge.
It is important that any party to a case may freely disagree with the judge's decision in this regard, but within limits. Recusal is the voluntary removal of oneself from a case. By definition, a recusal is an individual's subjective expression of some justification for a personal conclusion of either an inability to preside or a significant potential for the perception of impropriety. It is exceedingly difficult to seek a successful appellate review of a voluntary recusal, although it possibly remains practical in some limited instances. The potential might lie in the extent and detail of such an order. The procedural path would be through an extraordinary writ of “mandamus.“ 
Any party disappointed with a judges decision declining to recuse, could seek the affirmative relief of "disqualification.“ Way too many lawyers, judges, and others confuse these two terms, as if they were synonyms. “Recusal“ is self-directed and voluntary, disqualification is a response to an allegation or conclusion (Motion) raised initially by a party. If there is a motion, then the subject is disqualification. A "motion for recusal" is a misstatement and a badge of misinformation or ignorance. Disqualification is precisely the procedural tool for a party who believes a particular judge presiding would be inappropriate for whatever reason.
These are subtleties. Certainly, the nice ladies in the videos could take umbrage at the fact that "Jim never has a 2nd cup at home." There could be offense, hurt feelings, and perceptions. However, it is perhaps just as likely that Jim is on a whim. Without hearing Jim‘s thoughts, perhaps the world will never know of his second-cup rationale. Similarly, we cannot presume to know the basis of recusal, nor the minute detail of analysis in any order. All one generally has is the order. In our adjudicatory process, one generally asks what they ask (motion), and gets what they get, the order. When there is not even a motion, then the reasoning of the order may be all the more subject to speculation. 
And, in the immortal words of Forrest Gump, that ultimate outcome may be served with a portion of ambiguity, unpredictability, and conjecture. Recusal, like life, is “like a box of chocolates,“ perhaps. Forrest Gump (Paramount, 1994). It may be for reasons one suspects. It may be for conclusions one might never guess. And, as importantly, one must remember it may be simply from a concern of an appearance that is visible only to the judge entering the order. One simply never knows the recusal rationale, and of course, no judge would ever speak of it personally as that in itself could have serious implications. The order speaks for itself. 
The point here is that no lawyer knows why recusal(s) may come. What is clear, however, is that there is no "blanket disqualification," nor "automatic" or "standing" recusals. Holt v. Shehan, 122 So. 3d 970 (Fla. 2nd DCA 2013). There are likewise no unicorns, magic snowmen, or reclusive primates of inordinate foot size. When one mentions their reliance upon, or faith in, such fantasy or fantasies in conversation it may erode the listener's faith. 
By Judge David Langham
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    About The Author

    • Judge David Langham

      David Langham is the Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims at the Division of Administrative Hearings. He has been involved in workers’ compensation for over 25 years as an attorney, an adjudicator, and administrator. He has delivered hundreds of professional lectures, published numerous articles on workers’ compensation in a variety of publications, and is a frequent blogger on Florida Workers’ Compensation Adjudication. David is a founding director of the National Association of Workers’ Compensation Judiciary and the Professional Mediation Institute, and is involved in the Southern Association of Workers’ Compensation Administrators (SAWCA) and the International Association of Industrial Accident Boards and Commissions (IAIABC). He is a vocal advocate of leveraging technology and modernizing the dispute resolution processes of workers’ compensation.

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