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How to Fire a Private Judge

To resolve your complex divorce you may choose to work with a private judge. While this option has many benefits, it can be challenging to actually fire a private judge once you consent to this type of dispute resolution.

What is a Private Judge?

When you face divorce, there are two possible avenues to pursue to resolve the case. The first is the traditional route. You and your spouse hire attorneys who take the case to trial. Lengthy preparation and discovery ensue. Eventually, your case goes to trial where a judge hears the case and makes a decision. Your case must be fit into a crowded court calendar and may not be heard for months, and when it is finally scheduled for trial, it is likely heard in pieces over the course of weeks or months. Your case is simply one of many on the docket. The court and the judge have many other responsibilities, which means your case is not a priority.

The other way to resolve your divorce is through alternative dispute resolution. There are a variety of methods available through this route, including mediation (in which you and your spouse negotiate directly with each other with the assistance of a mediator), collaborative divorce (in which you and your spouse hire attorneys whose only role is to reach a settlement and who agree not to take the case to a trial), or arbitration.

Arbitration is a scenario in which you and your spouse agree to have your case heard by a neutral third-party arbitrator. The arbitrator is someone that both sides agree to work with. The arbitrator hears the case just as a trial court judge would and makes a decision in the case that the parties agree will become their judgment of divorce. In most instances, the arbitrator is a retired judge or well-known divorce attorney. This arbitrator functions as a private judge. The parties pay for the private judge to handle the case.

Benefits of a Private Judge

There are many benefits to engaging a private judge to hear your divorce case.

  • Most significantly, a private judge provides complete privacy for your case. There is no public record of the testimony, evidence, or maneuverings in the case. There are no public employees involved in the process until the completed judgment is filed with your state court. Therefore, there is a very real expectation of privacy for the case.
  • A private judge allows your case to move along more quickly than through your state court. The private judge has a much less congested calendar and can schedule the trial to be held very quickly after they are hired for the trial. The case can be heard on consecutive days and weeks, condensing the time that the actual trial takes to complete.
  • Using a private judge gives you and your attorney control over who will actually hear your case and decide the outcome of your divorce. You and your attorney can select an attorney you believe to be fair and whom you trust to make a reasoned decision in your case. You can also choose a judge with experience in high net worth divorces and/or your particular industry. If you have a complex child custody case, you can find a judge with expertise in those matters. When you have a trial in a state court, a judge is randomly assigned to your case, and it is merely the luck of the draw as to who will hear the case.
  • A private judge provides flexibility for your case. Rescheduling appearances is much simpler. Breaks can be taken as agreed. Some things can be handled without you appearing in person. This kind of process often works better for busy people who do not spend all of their time in one city.
  • This process also gives your attorney a measure of control that is not possible in a traditional trial. The attorneys can agree to things such as relaxed rules and procedures about evidence and witnesses, which can benefit your case.

Drawbacks of a Private Judge

While there are many benefits to using a private judge to resolve your divorce case, there are also some drawbacks to be aware of.

  • Because your case is removed from the state court system, it is also removed from systems that are designed to push a case through to a relatively speedy outcome. Your case before a private judge could be resolved very quickly, or it could linger for years, as the Angelina Jolie-Brad Pitt divorce has.
  • Because attorneys and their clients hire the private judge, they do have some motivation to please the people they work for. This can become an issue if one attorney is a regular client of the private judge.
  • Private judges are more expensive than using the state court system. In addition to paying for your own attorneys’ time during the trial, you and your spouse will share the cost of the private judge’s time as well.
  • Although you choose your private judge, you cannot easily fire them from your case.

Removing a Private Judge from Your Case

When you consent to a private judge hearing your divorce case, you agree to let the chosen judge handle your case from start to finish. If you decide at some point that you don’t like the judge or don’t trust them, you have very little opportunity to do anything about it.

Although you and your spouse agreed to work with the chosen judge, you can’t simply decide you want the judge off the case. The judge is given authority by your local court to handle the arbitration, and if the judge is going to be removed from the case, that decision must be made by the local court.

Angelina Jolie attempted to have the judge in her private divorce removed from the case in 2020, citing an alleged undisclosed business relationship with Pitt’s attorney. Jolie argued that because the judge had handled previous private judge cases for Pitt’s attorney, it created a conflict of interest. The judge was ultimately not removed from the case.

Conflict of interest is the most likely way to have a judge removed from your case. It is also possible to seek removal if the judge has not been impartial or does not properly conduct the proceedings. It is very unusual for a private judge to be removed from a case though.

A private judge can provide a highly private and controlled way to resolve your divorce. However, once you hire a private judge, you are likely committed to using them for the entire process.

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Dror Bikel

Dror Bikel founded and leads Bikel & Schanfield, New York’s best known firm for high-conflict matrimonial disputes. A New York Superlawyer℠ and twice recognized (2020 and 2021) New York Divorce Trial Lawyer of the Year, Dror’s reputation as a fearsome advocate in difficult custody and divorce disputes has led him to deliver solid outcomes in some of New York’s most complex family law trials. Attorney Bikel is a frequent commentator on high profile divorces for national and international media outlets. His book The 1% Divorce - When Titans Clash was a 5-category Amazon bestseller.

To connect with Dror: 212.682.6222 | [hidden email] | Online

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